In re Interest of Louis S. et al.

In summary, the evidence shows that the watermeter pit
and its manhole cover at issue belonged to MUD; that it was
MUD’s duty to maintain, repair, and service them; and that the
City had no duty or responsibility in regard to the watermeter
pit and its manhole cover. Accordingly, the trial court did not
err in granting summary judgment in favor of the City.
CONCLUSION
For the reasons stated above, we conclude that the trial
court did not err in granting MUD’s motion to dismiss and did
not err in granting the City’s motion for summary judgment.
Accordingly, the judgments of the trial court granting MUD’s
motion to dismiss and granting the City’s motion for summary
judgment are affirmed.
A ffirmed.
in re interest of L ouis s. et AL.,
chiLdren under 18 yeArs of Age .
stAte of nebrAskA, AppeLLee And cross -AppeLLee , v.
chAd s., sr ., AppeLLAnt And cross -AppeLLee , And
cArmeLA f., AppeLLee And cross -AppeLLAnt.
774 N.W.2d 416
Filed September 1, 2009. 	No. A-09-105.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
2. Evidence: Appeal and Error. When the evidence is in conflict, an appellate
court may consider and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the other.
3. Judgments: Appeal and Error. In reviewing questions of law, an appellate court
reaches conclusions independent of the lower court’s ruling.
4. Indian Child Welfare Act: Parental Rights: Jurisdiction. According to Neb.
Rev. Stat. § 43-1504(2) (Reissue 2008), in any state court proceeding for the
foster care placement of, or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian child’s tribe, the court,
in the absence of good cause to the contrary, shall transfer such proceeding to the
jurisdiction of the tribe, absent objection by either parent, upon the petition of
either parent or the Indian custodian or the Indian child’s tribe, except that such
transfer shall be subject to declination by the tribal court of such tribe.
IN Re INteReSt OF LOUIS S. et AL. 	867
Cite as 17 Neb. App. 867
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

5. Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial of a trans-
fer to tribal court is reviewed for an abuse of discretion.
6. Parental Rights: Proof. to terminate parental rights, the State must prove by
clear and convincing evidence that one of the statutory grounds enumerated in
Neb. Rev. Stat. § 43-292 (Reissue 2008) exists and that termination is in the
child’s best interests.
7. Indian Child Welfare Act: Parental Rights: Proof. the Indian Child Welfare
Act adds two additional elements the State must prove before terminating paren-
tal rights in cases involving Indian children: the “active efforts” element and the
“serious emotional or physical damage” element.
8. ____: ____: ____. Neb. Rev. Stat. § 43-1505(4) (Reissue 2008) provides that
any party seeking to effect a foster care placement of, or termination of paren-
tal rights to, an Indian child under state law shall satisfy the court that active
efforts have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts have
proved unsuccessful.
9. Indian Child Welfare Act: Parental Rights: Proof: Expert Witnesses. Neb.
Rev. Stat. § 43-1505(6) (Reissue 2008) provides that no termination of parental
rights may be ordered in such proceeding in the absence of a determination,
supported by evidence beyond a reasonable doubt, including testimony of quali-
fied expert witnesses, that the continued custody of the child by the parent or
Indian custodian is likely to result in serious emotional or physical damage to
the child.
10. Parental Rights. According to Neb. Rev. Stat. § 43-292(2) (Reissue 2008),
parental rights may be terminated when the parent has substantially and contin-
uously or repeatedly neglected and refused to give the juvenile or a sibling of the
juvenile necessary parental care and protection.
11. ____. In a termination of parental rights proceeding, a parent’s failure to provide
an environment to which his or her children can return can establish neglect.
12. Indian Child Welfare Act: Parental Rights: Proof. the Indian Child Welfare
Act requirement of “active efforts” requires more than the “reasonable efforts”
standard applicable in non-Indian Child Welfare Act cases, and at least some
efforts should be culturally relevant.
13. ____: ____: ____. In a termination of parental rights proceeding under the Indian
Child Welfare Act, the notion of culturally relevant active efforts applies to the
parents, to the children, and to the family.
14. ____: ____: ____. the “active efforts” standard under Neb. Rev. Stat. § 43-1505(4)
(Reissue 2008) requires a case-by-case analysis.
15. Indian Child Welfare Act: Parental Rights: Words and Phrases. In a termina-
tion of parental rights proceeding under the Indian Child Welfare Act, passive
efforts are where a plan is drawn up and the client must develop his or her own
resources toward bringing it to fruition. Active efforts are where the state case-
worker takes the client through the steps of the plan rather than requiring that the
plan be performed on its own.
16. Indian Child Welfare Act: Parental Rights: Proof. Although the State should
make active efforts in a termination of parental rights proceeding under the Indian
868 	17 NebRASkA AppeLLAte RepORtS

Child Welfare Act, if further efforts would be futile, the requirement of active
efforts is satisfied.
17. Indian Child Welfare Act: Parental Rights: Proof: Expert Witnesses. pursuant
to the Indian Child Welfare Act, qualified expert testimony is required in a paren-
tal rights termination case on the issue of whether serious harm to the Indian
child is likely to occur if the child is not removed from the home.
18. Indian Child Welfare Act: Parental Rights: Expert Witnesses. the bureau
of Indian Affairs sets forth guidelines under which expert witnesses most likely
will meet the requirements of the Indian Child Welfare Act: (1) a member of the
Indian child’s tribe who is recognized by the tribal community as knowledgeable
in tribal customs as they pertain to family organization and childrearing practices;
(2) a lay expert witness having substantial experience in the delivery of child
and family services to Indians, and extensive knowledge of prevailing social and
cultural standards in childrearing practices within the Indian child’s tribe; and (3)
a professional person having substantial education and experience in the area of
his or her specialty.
19. Rules of Evidence: Parental Rights: Expert Witnesses: Appeal and Error.
Whether a witness is qualified to testify as an expert under the Nebraska
evidence Rules, which serve as a guidepost in termination of parental rights
cases, is a preliminary question of admissibility for a trial court under Neb. evid.
R. 104(1), Neb. Rev. Stat. § 27-104(1) (Reissue 2008), and such a determination
will be upheld on appeal unless the trial court’s finding is clearly erroneous.
20. Parental Rights. Children cannot, and should not, be suspended in foster care or
be made to await uncertain parental maturity.
Appeal from the Separate Juvenile Court of Douglas County:
eLizAbeth crnkovich, Judge. Affirmed.
Rex J. Moats, of Moats Law Firm, p.C., L.L.O., and Douglas
D. Dexter for appellant.
Donald 	W. 	kleine, 	Douglas 	County 	Attorney, 	Jennifer
Chrystal-Clark, and Sean Lavery, Senior Certified Law Student,
for appellee State of Nebraska.
Anthony W. Liakos, of Govier & Milone, L.L.p., for appel-
lee Carmela F.
irwin, sievers, and cAsseL, Judges.
sievers, Judge.
Chad S., Sr. (Chad), appeals, and Carmela F. cross-appeals,
from the decision of the separate juvenile court of Douglas
County terminating their parental rights to their minor children
IN Re INteReSt OF LOUIS S. et AL. 	869
Cite as 17 Neb. App. 867

in a case in which the Nebraska Indian Child Welfare Act
(ICWA) is applicable. We affirm.
I. FACtUAL AND pROCeDURAL bACkGROUND
this case is governed by the Nebraska ICWA, Neb. Rev.
Stat. §§ 43-1501 through 43-1516 (Reissue 2008), and involves
seven children: Alicia F., born in October 1995; Louis S., born
in September 1999; Chad S., Jr. (Chad Jr.), born in October
2001; Unique S., born in October 2002; Heaven S., born in
September 2003; Henry S., born in January 2005; and Charlotte
S., born in June 2006. Carmela is the biological mother of all
seven children. Chad is the biological father of Louis, Chad Jr.,
Unique, Heaven, Henry, and Charlotte. the biological father of
Alicia is not a party to this appeal, and thus his participation in
this case will not be discussed further.
the six older children—Charlotte was not born yet—were
removed from the home of Chad and Carmela on October 18,
2005, due to the living conditions in the home. At the time of
removal, there was no running water in the home; the toilet was
not working and was full of feces and urine; the children were
dirty and wearing filthy, soiled clothing; and all of the children
had severe head lice. A methamphetamine pipe was also found
in the home. the children were placed in emergency protective
custody. the State initially filed a petition with the juvenile
court on October 20, alleging that the children were within
the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2004).
A motion for temporary custody was filed and granted that
same day. the children have been in the custody of Nebraska’s
Department of Health and Human Services (DHHS) since
that time.
the State filed an ICWA notice with the juvenile court on
October 24, 2005, and such notice was also sent to the Omaha
tribe of Nebraska. the notice was for the purpose of deter-
mining whether the children were members of, or eligible
for membership in, the Omaha tribe, thereby making the
ICWA applicable.
by an order filed by the juvenile court on February 23,
2006, the six older children were adjudicated to be within the
meaning of § 43-247(3)(a) insofar as Chad and Carmela were
870 	17 NebRASkA AppeLLAte RepORtS

concerned. Sometime between the children’s initial removal
from the home and September 19, 2006, Chad was arrested and
incarcerated in a federal penal institution located in Colorado.
We also note that the children were returned to Carmela’s care
for approximately 6 months from November 2006 to May 2007.
In May 2007, the children, including Charlotte, were returned
to foster care because Carmela had been evicted from her
home and had an admitted drug relapse—the evidence shows
that Carmela has a methamphetamine addiction. Numerous
amended petitions, disposition orders, and a motion to termi-
nate parental rights were filed between the time of removal on
October 18, 2005, and a hearing on June 30, 2008. However,
we will not discuss these pleadings and orders, because such
are not necessary for resolution of this appeal.
On June 25, 2008, Carmela filed a motion to transfer the
case to tribal court. A hearing was held on June 30. Chad did
not object to the transfer. the State objected to the transfer,
alleging that it did not get proper notice, and the guardian ad
litem joined the State’s objection. For the first time, evidence
was presented that all seven children were members of, or eli-
gible to be members of, the Omaha tribe. the juvenile court
found that the ICWA was applicable to the proceedings, but
orally denied the transfer, stating that “there is good cause not
to transfer this case because it’s been a great many years that
it is before this Court, and it would not be in the best interests
of these children to transfer the matter.” the State moved to
dismiss certain supplemental petitions and its motion to termi-
nate parental rights, because such pleadings did not conform to
ICWA requirements. the juvenile court dismissed such with-
out prejudice.
On June 30, 2008, the State filed a fourth supplemental peti-
tion, alleging that the youngest child, Charlotte, was a child
within the meaning of § 43-247(3)(a) (Cum. Supp. 2006) as
far as Chad was concerned, in that Chad was incarcerated and
unable to care for Charlotte or provide Charlotte with stable
and adequate housing. the petition also alleged that Chad’s
parental rights to Charlotte should be terminated pursuant to
Neb. Rev. Stat. § 43-292(1) and (2) (Reissue 2008). the State
specifically alleged that active efforts, pursuant to § 43-1505(4)
IN Re INteReSt OF LOUIS S. et AL. 	871
Cite as 17 Neb. App. 867

of the ICWA, had been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the
family, but that said efforts had proved unsuccessful. the State
also alleged that continuing the custody of Charlotte by Chad
would likely result in serious emotional or physical damage
to the child and that it was in Charlotte’s best interests that
Chad’s parental rights be terminated.
A fifth supplemental petition regarding Alicia was also filed,
but we will not discuss such, because it is not necessary to
this opinion.
the State also filed a second motion for termination of
parental rights, alleging that all seven children were enrolled,
or eligible to be enrolled, in the Omaha tribe. the State filed
a motion to terminate Carmela’s parental rights to all seven
children under § 43-292(2) and (6). the State also sought to
terminate her parental rights to Alicia, Louis, Chad Jr., Unique,
Heaven, and Henry under § 43-292(7). the State filed a motion
to terminate Chad’s parental rights to Louis, Chad Jr., Unique,
Heaven, and Henry under § 43-292(2), (6), and (7). (Charlotte
was not named in this motion insofar as Chad was concerned,
but she had previously been named in the fourth supplemental
petition seeking termination of Chad’s rights as to her.) the
State also specifically alleged with regard to Chad and Carmela
that active efforts, pursuant to § 43-1505(4) of the ICWA, had
been made to provide remedial services and rehabilitative pro-
grams designed to prevent the breakup of the family, but that
said efforts had proved unsuccessful. the State also alleged that
continuing the custody of the children by Carmela and Chad
would likely result in serious emotional or physical damage to
the children and that it was in the children’s best interests that
Carmela’s and Chad’s parental rights be terminated.
the termination hearing was held on October 8 and 16 and
November 5 and 6, 2008. Several witnesses testified, and such
testimony will be discussed as necessary in our analysis.
the juvenile court filed its order on January 9, 2009. the
juvenile court found that grounds for termination of Carmela’s
rights to Alicia, Louis, Chad Jr., Unique, Heaven, Henry, and
Charlotte existed under § 43-292(2) and (6). the juvenile court
also found that grounds existed to terminate Carmela’s rights
872 	17 NebRASkA AppeLLAte RepORtS

to all of the children except Charlotte under § 43-292(7). the
juvenile court found that grounds for termination of Chad’s
rights to Louis, Chad Jr., Unique, Heaven, and Henry existed
under § 43-292(2), (6), and (7). the juvenile court found that
grounds existed to terminate Chad’s rights to Charlotte under
§ 43-292(1) and (2). the juvenile court found that active
efforts, pursuant to § 43-1505(4) of the ICWA, had been
made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the family, but that said
efforts had proved unsuccessful. the juvenile court also found
that continuing the custody of the children by Carmela and
Chad would likely result in serious emotional or physical dam-
age to the children and that it was in the children’s best inter-
ests that Carmela’s and Chad’s parental rights be terminated.
the juvenile court terminated Chad’s and Carmela’s parental
rights to the children after finding that grounds for termination
existed and that such was in the children’s best interests. Chad
has timely appealed, and Carmela cross-appeals.
II. ASSIGNMeNtS OF eRROR
Chad alleges that the juvenile court erred in (1) finding that
active efforts had been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the
family, (2) admitting the opinion of an ICWA expert that con-
tinued custody of the children by Chad would likely result in
serious emotional or physical damage to the children, and (3)
terminating Chad’s parental rights when there was insufficient
evidence to prove that the continued custody of the children by
Chad would likely result in serious emotional or physical dam-
age to the children.
On cross-appeal, Carmela alleges that the juvenile court
erred in (1) overruling her motion to transfer the proceeding
to the jurisdiction of the Omaha tribe of Nebraska; (2) finding
that active efforts had been made to provide remedial services
and rehabilitative programs designed to prevent the breakup
of the family, but that said efforts proved unsuccessful; (3)
finding that the minor children came within the meaning of
§ 43-292(2) with respect to Carmela; (4) finding that the minor
children came within the meaning of § 43-292(6) with respect
IN Re INteReSt OF LOUIS S. et AL. 	873
Cite as 17 Neb. App. 867

to Carmela; (5) finding that termination of Carmela’s parental
rights was in the best interests of the minor children; (6) finding
that continued custody of the children by Carmela would likely
result in serious emotional or physical damage to the children;
(7) finding that it is in the best interests and welfare of the
minor children to remain in the custody of DHHS for adoptive
planning and placement; and (8) terminating Carmela’s paren-
tal rights.
III. StANDARD OF ReVIeW
[1-3] Juvenile cases are reviewed de novo on the record, and
an appellate court is required to reach a conclusion indepen-
dent of the juvenile court’s findings. In re Interest of Tyler F.,
276 Neb. 527, 755 N.W.2d 360 (2008). However, when the evi-
dence is in conflict, the appellate court may consider and give
weight to the fact that the trial court observed the witnesses
and accepted one version of the facts over the other. Id. In
reviewing questions of law, an appellate court reaches conclu-
sions independent of the lower court’s ruling. Id.
IV. ANALYSIS
1. trAnsfer of proceedings
[4] Carmela argues that the juvenile court erred in overruling
her motion to transfer the proceedings to the jurisdiction of the
Omaha tribe of Nebraska. Section 43-1504 states in part:
(2) In any state court proceeding for the foster care
placement of, or termination of parental rights to, an
Indian child not domiciled or residing within the reserva-
tion of the Indian child’s tribe, the court, in the absence of
good cause to the contrary, shall transfer such proceeding
to the jurisdiction of the tribe, absent objection by either
parent, upon the petition of either parent or the Indian
custodian or the Indian child’s tribe, except that such
transfer shall be subject to declination by the tribal court
of such tribe.
(emphasis supplied.)
[5] A denial of a transfer to tribal court is reviewed for an
abuse of discretion. In re Interest of Lawrence H., 16 Neb. App.
246, 743 N.W.2d 91 (2007).
874 	17 NebRASkA AppeLLAte RepORtS

On June 25, 2008, Carmela filed a motion to transfer the
case to tribal court. A hearing was held on June 30. Chad did
not object to the transfer. the State objected to the transfer,
alleging that it did not get proper notice, and the guardian ad
litem joined the State’s objection. the district court found that
the ICWA was applicable to the proceedings, but orally denied
the transfer, stating that “there is good cause not to transfer this
case because it’s been a great many years that it is before this
Court, and it would not be in the best interests of these children
to transfer the matter.” the court also noted that the tribe had
not intervened in the matter. No written order reflects the juve-
nile court’s denial of the transfer.
by the time of the June 30, 2008, hearing, when proof of
the children’s membership or eligibility for membership in the
Omaha tribe was offered to the juvenile court, this case had
been before the juvenile court for more than 21⁄2 years. the
Omaha tribe had not intervened. these are valid and logical
reasons for the trial court to maintain jurisdiction. therefore,
we cannot say that the juvenile court abused its discretion in
declining to transfer jurisdiction of these proceedings to tribal
court. Accordingly, the assignment of error lacks merit.
2. terminAtion of pArentAL rights
[6-9] Carmela argues that the juvenile court erred in find-
ing that grounds for termination of parental rights existed
under § 43-292(2) and (6). “We have held that the State must
prove by clear and convincing evidence that one of the statu-
tory grounds enumerated in § 43-292 exists and that termina-
tion is in the child’s best interests. ‘thus, only one ground for
termination need be proved in order [to terminate] parental
rights . . . .’” In re Interest of Ty M. & Devon M., 265 Neb.
150, 173, 655 N.W.2d 672, 691 (2003) (quoting In re Interest
of Michael B. et al., 258 Neb. 545, 604 N.W.2d 405 (2000)).
the ICWA, however, adds two additional elements the State
must prove before terminating parental rights in cases involv-
ing Indian children. In re Interest of Walter W., 274 Neb. 859,
744 N.W.2d 55 (2008). First, § 43-1505(4) provides an “active
efforts” element:
Any party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under
IN Re INteReSt OF LOUIS S. et AL. 	875
Cite as 17 Neb. App. 867

state law shall satisfy the court that active efforts have
been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful.
Second, § 43-1505(6) provides a “serious emotional or physi-
cal damage” element:
No termination of parental rights may be ordered in such
proceeding in the absence of a determination, supported
by evidence beyond a reasonable doubt, including tes-
timony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage
to the child.
(a) Grounds Under § 43-292
[10,11] Section 43-292(2) provides that parental rights may
be terminated when the parent has “substantially and contin-
uously or repeatedly neglected and refused to give the juvenile
or a sibling of the juvenile necessary parental care and protec-
tion.” the Nebraska Supreme Court has said: “[p]arents may
as surely neglect a child of whom they do not have possession
by failing to put themselves in a position to acquire possession
as by not properly caring for a child of whom they do have
possession.” In re Interest of L.C., J.C., and E.C., 235 Neb.
703, 713, 457 N.W.2d 274, 281 (1990). A parent’s failure to
provide an environment to which his or her children can return
can establish neglect. See id.
the six older children were removed from the home in
October 2005 because of inadequate housing conditions. the
home was filthy, there was no running water, and the toilet
was not working. Furthermore, the children were wearing
filthy, soiled clothing and had severe head lice. the children
were returned to Carmela in November 2006, because she
had cleaned up her home and the utilities were reestablished.
However, in May 2007, the children, including Charlotte, were
returned to foster care, because Carmela had been evicted and
the family had been living in her car. Carmela also admitted
to a drug relapse. And while the children were in foster care,
Carmela was inconsistent with her visits and would often not
show up for visits, upsetting the children. At the time of the
876 	17 NebRASkA AppeLLAte RepORtS

termination hearing, Carmela was unable to parent the chil-
dren. She was in a chemical dependency treatment program
and unable to provide a home for the children at that time.
While Carmela’s beginning efforts at rehabilitation are laud-
able, the record reflects that she has repeatedly started treat-
ment programs only to quit such programs prematurely. It is
apparent that she has not conquered her methamphetamine
addiction. thus, not only was Carmela unable to provide a
home for her children at the time of the hearing, there was no
evidence as to when she would be able to provide a home for
her children. And “[c]hildren cannot, and should not, be sus-
pended in foster care or be made to await uncertain parental
maturity.” In re Interest of Walter W., 274 Neb. 859, 872, 744
N.W.2d 55, 65 (2008).
We find that grounds existed to terminate Carmela’s parental
rights under § 43-292(2). thus, we would not ordinarily address
the juvenile court’s finding of grounds for termination under
§ 43-292(6) (parental rights may be terminated when “rea-
sonable efforts to preserve and reunify the family if required
under section 43-283.01, under the direction of the court, have
failed to correct the conditions leading to the determination”).
However, because this is an ICWA case, we do address whether
the requisite active efforts were made.
(b) § 43-1505(4)—Active efforts
[12] both Chad and Carmela argue that the juvenile court
erred in finding that active efforts had been made to pro-
vide remedial services and rehabilitative programs designed
to prevent the breakup of the family. Section 43-1505 requires
in part:
(4) Any party seeking to effect a foster care place-
ment of, or termination of parental rights to, an Indian
child under state law shall satisfy the court that active
efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup
of the Indian family and that these efforts have proved
unsuccessful.
the Nebraska Supreme Court has said that the ICWA require-
ment of “active efforts” requires more than the “reasonable
efforts” standard applicable in non-ICWA cases and that “at
IN Re INteReSt OF LOUIS S. et AL. 	877
Cite as 17 Neb. App. 867

least some efforts should be ‘culturally relevant.’” In re Interest
of Walter W., 274 Neb. at 865, 744 N.W.2d at 61. the term
“culturally relevant” is not defined by Nebraska’s administra-
tive regulations, by the court in In re Interest of Walter W., or
by any other appellate decision, Nebraska or elsewhere, that we
can find. the evidence before us is that the oldest child, Alicia,
attended a camp in Arizona for Native American children, but
the problem with this family was the parents, not the children.
While we realize that with seven children, this may seem a
“nominal” effort, there is no real guidance in Nebraska case
law as to what efforts are required. In In re Interest of Walter
W., the Nebraska Supreme Court found that a “cultural plan”
discussed with the foster mother—without further elaboration
about such—constituted a sufficient active effort. 274 Neb. at
867, 744 N.W.2d at 62. In re Interest of Walter W. does not
state what the threshold requirement is for a sufficient cultur-
ally relevant active effort. However, a recent decision from the
Nebraska Supreme Court provides some additional context
in which to assess focus and what the “target” of culturally
relevant active efforts should be. the court said the following
about the ICWA in In re Interest of Elias L., 277 Neb. 1023,
1029-30, 767 N.W.2d 98, 103 (2009):
Congress passed ICWA in response to the alarmingly high
number of Indian children being removed from their fami-
lies and placed in non-Indian adoptive or foster homes by
state welfare agencies and courts. At the time of ICWA’s
enactment, 25 to 35 percent of all Indian children were
removed and separated from their tribes and families to
be placed in adoptive or foster homes. to make matters
worse, about 90 percent of Indian adoption placements
occurred in non-Indian homes away from their culture
and community.
Commenting on the loss of Indian culture, Congress
noted that “[c]ontributing to this problem has been the
failure of State officials, agencies, and procedures to take
into account the special problems and circumstances of
Indian families and the legitimate interest of the Indian
tribe in preserving and protecting the Indian family as
the wellspring of its own future.” Ultimately, Congress
878 	17 NebRASkA AppeLLAte RepORtS

enacted ICWA in response to the looming crisis facing
Indian tribes—namely, that they would face extinction
through the removal of their children through state court
child custody proceedings. Congress concluded that “there
is no resource that is more vital to the continued existence
and integrity of Indian tribes than their children.” thus,
Congress designed the procedural and substantive stan-
dards of ICWA to “‘protect the rights of the Indian child
as an Indian and the rights of the Indian community and
tribe in retaining its children in its society.’”
[13] In assessing the notion of culturally relevant active
efforts in this case, we think it important to distill the applica-
tion thereof to the parents, to the children, and to the family.
thus, beginning with the parents, the core problems of the
parents—filthy, unhealthy, and unsuitable living conditions,
coupled with Carmela’s addiction and Chad’s incarceration—
cannot be fairly characterized as arising from their Native
American background. to characterize these parents’ short-
comings as “cultural” shortcomings that can be addressed by
“culturally relevant” active efforts smacks of stereotyping at
best and racism at worst. put another way, we see no nexus
between Native American culture and either the parental short-
comings or the solution thereto.
turning to the children and the family, there is some evi-
dence that Carmela lived on a reservation at some point in her
life. but, the children have never lived on a reservation, nor
has the family unit, and according to the testimony of evelyn
Labode, the ICWA expert, the children’s involvement with their
Native culture was very limited. And, it is worth recalling that
their tribe did not care to be involved in the case. the observa-
tion by the court in In re Interest of Walter W., 274 Neb. 859,
744 N.W.2d 55 (2008), that the cultural plan was discussed
with the foster mother could be seen as suggesting that the
required active efforts be directed at the children. However, it
is the parental shortcomings that place the family at risk for
breakup. thus, while it may well be desirable to acquaint the
children with their Native heritage, doing so seems unlikely
to prevent the breakup of the family when it is the parents’
shortcomings that caused the family to become involved in the
IN Re INteReSt OF LOUIS S. et AL. 	879
Cite as 17 Neb. App. 867

juvenile justice system, and their failure to remedy such, that,
in the end, caused the breakup of the family.
[14,15] the Nebraska Supreme Court in In re Interest of
Walter W. did hold that the “active efforts” standard requires
a case-by-case analysis. As a prelude to that analysis, we find
the Alaska Supreme Court’s opinion in A.A. v. State, 982 p.2d
256 (Alaska 1999), helpful. that court, after noting the federal
ICWA did not define “active efforts,” distinguished between
active and passive services:
“passive efforts are where a plan is drawn up and the cli-
ent must develop his or her own resources towards bring-
ing it to fruition. Active efforts, the intent of the drafters
of the [ICWA], is where the state caseworker takes the
client through the steps of the plan rather than requiring
that the plan be performed on its own. For instance, rather
than requiring that a client find a job, acquire new hous-
ing, and terminate a relationship with what is perceived
to be a boyfriend who is a bad influence, the [ICWA]
would require that the caseworker help the client develop
job and parenting skills necessary to retain custody of
her child.”
982 p.2d at 261.
the Oklahoma Court of Civil Appeals said that “active
efforts” requires more than pointing the parent in the right
direction, it requires “‘leading the horse to water.’” See In
re J.S., 177 p.3d 590, 594 (Okla. Civ. App. 2008). Using the
above concepts, it is apparent that Chad, Carmela, and the chil-
dren were provided with a variety of active, as well as passive,
efforts which were all aimed at preventing the breakup of this
Native family, and which went far beyond merely pointing the
parents in a certain direction. We now detail the efforts under-
taken to prevent the breakup of this family.
When the six older children were initially removed from the
home in October 2005, the State sent a notice to the Omaha
tribe within 1 week of such removal, inquiring whether the
children were members of, or eligible for membership in, the
tribe. DHHS provided Chad and Carmela with utility bill assist-
ance for water and gas; a family support worker who helped
them clean their home; pretreatment assessment and followup;
880 	17 NebRASkA AppeLLAte RepORtS

a psychological evaluation for Carmela; a psychological evalu-
ation for Chad, although such was only partial because Chad
did not return to complete it; foster care placement for the
children; chemical dependency evaluations; and bus tickets.
Additionally, the children were provided with services: Alicia
was provided tutoring, Louis was given a referral for tutoring,
and Louis was diagnosed with a hearing problem for which a
hearing aid was ordered.
When the six older children were returned to Carmela in
November 2006, and all seven children were in Carmela’s
home, DHHS provided her with individual therapy, although
Carmela was not consistent in attending her therapy sessions.
Again, the children were also provided with services: Alicia
and Louis received tutoring, and Unique was given a referral to
early education services.
beginning in May 2007, when all seven children were again
placed in foster care, DHHS provided Carmela with assistance
in locating housing, foster care placement for her children,
supervised visitation, access to “Specialized treatment and
Recovery Court” (StAR Court), a chemical dependency evalu-
ation, drug screening through urinalysis (UA), and individual
therapy. We note that there were numerous times when DHHS
and the service providers could not locate Carmela; however,
when Carmela would resume contact, services were contin-
ued. the children were also provided with services: Alicia
and Louis received tutoring; Henry received speech therapy;
Alicia, Louis, Chad Jr., and Unique were evaluated for mental
status examinations; and sibling visitation was provided. thus,
Carmela was clearly provided with active efforts throughout
this case.
there was some evidence offered that supports Chad’s and
Carmela’s argument that the performance of the family’s social
worker, Laurie Hultgren, was deficient at times. the evidence
shows that Hultgren was at times difficult to contact for service
referrals and that, at least for a time, she failed to make the
required monthly visits with the children. On the record before
us, it can be said that Hultgren’s performance was less than
ideal. However, the record is also clear that numerous service
referrals were made by Hultgren on behalf of Carmela and that
IN Re INteReSt OF LOUIS S. et AL. 	881
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Hultgren would oftentimes make new referrals for Carmela
when Carmela was discharged for failure to participate in pre-
vious referrals or rehabilitation programs. even though this is
an ICWA case requiring “active efforts,” which In re Interest
of Walter W., 274 Neb. 859, 865, 744 N.W.2d 55, 61 (2008),
says is “more than . . . ‘reasonable efforts,’” that notion does
not mean that Carmela is absolved of all responsibility to help
herself. She must still avail herself of the services that are
arranged for her. And after some period of time, she must, as
a result of her engagement with and dedication to the effort
being made for her by DHHS, become a functioning parent
who can nurture her children and keep them healthy and safe.
that she failed repeatedly to do so is clear from the record.
thus, it is hard to envision that better performance by Hultgren
would have made a difference, given that the services provided
to Carmela had little lasting impact on Carmela’s ability to be
an appropriate parent. Despite Hultgren’s shortcomings, we
find that Carmela was provided with active efforts as required
by the ICWA.
[16] Although the record does not disclose an exact date,
Chad was arrested and incarcerated sometime between the chil-
dren’s initial removal from the home and September 19, 2006.
Chad is housed at a federal penal institution on drug- and
weapons-related convictions. testimony indicates that Chad
was sentenced to somewhere between 7 and 12 years’ impris-
onment. the evidence in our record shows that during his
incarceration, the only service Chad was provided was thera-
peutic telephone visitation with the children, although it was
unknown whether such visitation actually occurred. pam Curry,
a DHHS supervisor, testified that for incarcerated persons,
any services would be offered through the institution. And
Labode, the ICWA expert, testified that from the documenta-
tion she reviewed, parenting programs were available to Chad
in the federal institution in which he is incarcerated. As said
above, the “active efforts” standard requires a case-by-case
analysis. In re Interest of Walter W., supra. Given that Chad
is in a federal prison for 7 to 12 years, and that active efforts
were clearly undertaken for the family before his incarceration
and for the mother and children after Chad’s incarceration, we
882 	17 NebRASkA AppeLLAte RepORtS

find that under a “case-by-case” standard, the rehabilitative
efforts with respect to Chad were sufficient under the ICWA.
In so concluding, we rely on a substantial body of case law
holding that if further efforts would be futile, the requirement
of active efforts is satisfied. See, Wilson W. v. State, 185 p.3d
94 (Alaska 2008) (in child in need of care proceeding brought
under ICWA, state is not required to keep up its active efforts
to provide remedial services designed to prevent breakup of
family once it is clear that these efforts would be futile); State
ex rel. C.D., 200 p.3d 194 (Utah App. 2008). See, also, People
ex rel. K.D., 155 p.3d 634 (Colo. App. 2007) (although state
must make “active efforts” under ICWA, it need not persist
with futile efforts); Letitia V. v. Superior Court, 81 Cal. App.
4th 1009, 97 Cal. Rptr. 2d 303 (2000) (additional remedial
programs not required where prior efforts became futile and
proved unsuccessful).
Curry testified that in her opinion, no additional services
could be offered to this family in order to provide a possible
reunification. And Labode testified that DHHS provided both
parents with active efforts to prevent the breakup of the fam-
ily. We agree and find that the evidence was sufficient to prove
by the requisite standard, clear and convincing evidence, that
active efforts were undertaken to prevent the breakup of the
family and that further efforts would be futile and are not
required under the ICWA.
(c) § 43-1505(6)—Serious emotional or physical Damage
(i) Continued Custody With Chad
[17,18] Chad argues that the juvenile court erred in admit-
ting witness Labode’s opinion that continued custody of the
children by Chad would likely result in serious emotional or
physical damage to the children. the Nebraska Supreme Court
has set forth the standard for qualified expert testimony in
ICWA cases:
pursuant to the ICWA, qualified expert testimony is
required in a parental rights termination case on the
issue of whether serious harm to the Indian child is
likely to occur if the child is not removed from the
home. See Guidelines for State Courts; Indian Child
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Custody proceedings, 44 Fed. Reg. 67,584,67,593 (1979)
(not codified).
the bureau of Indian Affairs sets forth guidelines
under which expert witnesses most likely will meet the
requirements of the ICWA: “(i) A member of the Indian
child’s tribe who is recognized by the tribal community
as knowledgeable in tribal customs as they pertain to
family organization and childrearing practices. (ii) A lay
expert witness having substantial experience in the deliv-
ery of child and family services to Indians, and extensive
knowledge of prevailing social and cultural standards in
childrearing practices within the Indian child’s tribe. (iii)
A professional person having substantial education and
experience in the area of his or her specialty.” Id.
In re Interest of C.W. et al., 239 Neb. 817, 823-24, 479 N.W.2d
105, 111 (1992), disapproved on other grounds, In re Interest
of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008). See, also,
In re Interest of Phoebe S. & Rebekah S., 11 Neb. App. 919,
664 N.W.2d 470 (2003).
Labode earned bachelor’s and master’s degrees in French and
education. She also has a juris doctor degree from Creighton
University School of Law. Labode is a retired assistant profes-
sor at the University of Nebraska-Lincoln Center on Children,
Families, and the Law. While she was an assistant professor,
Labode developed curriculum for the training of protection
and safety workers in the areas of child welfare and juvenile
justice, specializing in Indian child welfare, adoption, cultural
issues, and permanency planning; delivered training on child
welfare and juvenile justice issues for state and private agen-
cies such as DHHS, the Nebraska Children’s Home Society,
the Lincoln Commission on Human Rights, and the Anti-
Defamation League; and researched child welfare and juvenile
justice issues, particularly Indian child welfare, adoption, cul-
tural competency, and permanency.
After retiring from the University of Nebraska in January
2005, Labode continued working as a training consultant and
curriculum developer. In such work, she trained protection and
safety workers on ICWA, adoption, and cultural issues; devel-
oped a curriculum for protection and safety workers on ICWA,
884 	17 NebRASkA AppeLLAte RepORtS

adoption, and cultural issues; and was a resource for state and
private agencies in the area of Indian child welfare. Labode is
a member of the Nebraska State bar Association, Midlands bar
Association, and the National Indian Child Welfare Association.
She is also affiliated with the permanency planning task force,
charged by the Nebraska Supreme Court with promoting per-
manency for children. Labode was also a founding member
of the Native American Foster and Adoptive Coalition, now
defunct. Additionally, Labode has given numerous presenta-
tions on the “Native American cultural plan” and the ICWA.
Labode also testified that she has been an ICWA witness in
several cases.
[19] “Whether a witness is qualified to testify as an expert
under the Nebraska evidence Rules, which serve as a guide-
post in termination of parental rights cases, is a preliminary
question of admissibility for a trial court under Neb. evid.
R. 104(1), Neb. Rev. Stat. § 27-104(1) (Reissue 1995).” In
re Interest of Phoebe S. & Rebekah S., 11 Neb. App. at 935,
664 N.W.2d at 482. Such a determination will be upheld on
appeal unless the trial court’s finding is clearly erroneous.
Id. Clearly, Labode has substantial education and experience
that makes her qualified to render the opinions she offered
in the trial of this matter which proceeded under the ICWA.
thus, the trial court’s admission of her testimony was not
clearly erroneous.
We note that Chad’s arguments indicate an incorrect reading
of the operative statute, § 43-1505(6), which provides:
No termination of parental rights may be ordered in such
proceeding in the absence of a determination, supported
by evidence beyond a reasonable doubt, including testi-
mony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage
to the child.
While the statute does require proof beyond a reasonable doubt
and also requires “testimony of qualified expert witnesses,” this
heightened standard of proof is not extended to all elements
of an ICWA parental rights termination case, see In re Interest
of Walter W., 274 Neb. 859, 744 N.W.2d 55 (2008), and
IN Re INteReSt OF LOUIS S. et AL. 	885
Cite as 17 Neb. App. 867

specifically, the heightened standard of § 43-1505(6) does not
apply to the state law elements under § 43-292 for terminat-
ing parental rights. Nor must the State prove the best interests
element of an ICWA parental rights termination case beyond
a reasonable doubt. Id. Rather, the State must prove by clear
and convincing evidence that terminating parental rights is in
the child’s best interests, but such evidence need not include
testimony of a qualified expert witness. Id. but, such evidence
can, of course, include the testimony of a qualified expert such
as Labode.
Labode testified that Chad has not had much contact with
the children since his incarceration and that, in fact, it appears
that he has written only one letter to each child, excluding
Charlotte. Labode testified that in her opinion, if the chil-
dren were returned to Chad, they would endure emotional
and physical harm, because it appears that the children were
exposed to the drug culture (the police found drug pipes in
the home where the children were) and because Chad’s psy-
chological evaluation was not very informative (he gave “very
curt” responses to parenting questions), causing the therapist
to be unable to form opinions about Chad’s parenting style
and his willingness to parent his children. Labode also noted
that Chad has had opportunities to contact his children, but
the only letters were written 2 years prior to the termina-
tion hearing.
Nikki Conner, a licensed mental health practitioner, testi-
fied that in November 2005, she worked for a mental health
services facility and did a pretreatment assessment of Chad.
Her pretreatment assessment report, which was received into
evidence, stated that Chad was referred for services following
the removal of his six children due to chronic unsanitary liv-
ing conditions, chronic head lice of all the children, chronic
unemployment, and possible methamphetamine use. Conner
testified that the ultimate goal for Chad was reunification and
to address mental health and substance abuse issues. She recom-
mended family therapy and outpatient substance abuse treat-
ment. Conner stated that a “red flag” regarding Chad was that
he denied any substance abuse. She stated she was concerned
886 	17 NebRASkA AppeLLAte RepORtS

that without treatment, the behavior and patterns in the family
would remain the same.
[20] based on the totality of the evidence presented at the
termination hearing, it is clear beyond a reasonable doubt that
custody of the children by Chad, after he would be released
from incarceration, whenever that might occur, is likely to
result in serious emotional or physical harm to the children.
Chad is currently incarcerated, and obviously, it will be a num-
ber of years before he would be in a position to physically have
custody of the children, putting aside for the moment his past
serious neglect of the health and safety of the children—which
hardly bodes well for the future. Additionally, at the time of
the termination hearing, the children had already been in foster
care for 30 of the previous 36 months. And “[c]hildren can-
not, and should not, be suspended in foster care or be made to
await uncertain parental maturity.” In re Interest of Walter W.,
274 Neb. 859, 872, 744 N.W.2d 55, 65 (2008). this concept is
fully applicable in an ICWA parental rights termination case.
We find after our de novo review that the evidentiary require-
ments of § 43-1505(6) have been satisfied and that Chad’s
parental rights to all of his children involved herein should
be terminated.
(ii) Continued Custody With Carmela
Carmela argues that the juvenile court erred in finding that
her continued custody of the children would likely result in
serious emotional or physical damage to the children. Labode
testified that in her opinion, if the children were returned to
Carmela, they would endure emotional and physical harm,
because at the time of removal, the children had head lice, the
school-age children had been absent 50 days and tardy more
than 20 days, and two of the children had hearing or com-
munication difficulties. Labode testified that while Carmela
did “wonderful things” to get the children returned, within 6
months, the children’s welfare had deteriorated, Carmela was
not able to maintain a home, and Carmela called DHHS to
take the children because she had been evicted. At this point,
Carmela left counseling and residential treatment and has been
IN Re INteReSt OF LOUIS S. et AL. 	887
Cite as 17 Neb. App. 867

unable to keep a job; and Carmela has been inconsistent with
her visitation.
Jennifer Lindner, a licensed psychologist, testified that she
was Carmela’s therapist from October 2006 until July 2007,
when Lindner went on maternity leave. Lindner also tried to
contact Carmela in October 2007, when Lindner returned to
work, but was unsuccessful. Carmela contacted Lindner again
in January 2008 to resume services, but Lindner needed pay-
ment approval from DHHS. Lindner testified that she has had
no contact with Carmela since January 2008. Lindner testified
that while seeing Carmela from October 2006 until July 2007,
she wanted to meet with Carmela weekly. However, Carmela
was inconsistent in meeting with Lindner and missed a total
of 14 appointments. Lindner was able to meet with Carmela
17 times. Lindner testified that Carmela would make progress,
but then she would miss appointments and come back with
new issues or Carmela’s symptoms would worsen. Lindner
testified that she was not sure Carmela would make enough
progress to function effectively as a parent, be able to address
her mental health symptoms, or be able to function in regu-
lar society.
eva Abrams, a supervisor at Owens and Associates, testified
that Owens and Associates provided Carmela with visitation
and family support services. Abrams testified that Carmela was
inconsistent with her participation with Owens and Associates
and that in August 2007, Owens and Associates discharged
Carmela for lack of participation. between May and August
2007, there were 19 scheduled family support sessions, but
Carmela attended only 5. Abrams testified that Owens and
Associates received a new referral for Carmela on July 23,
2008, and supervised visits were scheduled but never took
place—Carmela was again discharged on September 6 for not
contacting Owens and Associates for 30 days.
tayla Dickey, a child and family services supervisor for
DHHS, testified that prior to being a supervisor, she was a
protection and safety worker working specifically with StAR
Court. Dickey testified that StAR Court is a voluntary pro-
gram and has three phases. During phase one, participants go
to court every week, attend Alcoholics Anonymous (AA) or
888 	17 NebRASkA AppeLLAte RepORtS

Narcotics Anonymous (NA) meetings, begin treatment or get
evaluations, submit to UA’s three times per week, and follow
other court orders. During phase two, participants go to court
every other week, continue UA’s, and work toward graduating
from treatment. During phase three, which occurs after they
have graduated from treatment, participants go to court once
per month.
Dickey testified that Carmela started with StAR Court on
September 4, 2007, and had to immediately do a UA because
of an admitted methamphetamine relapse. Carmela was ordered
to attend seven AA or NA meetings each week because she was
unemployed at the time. Carmela was also ordered to have an
updated chemical dependency evaluation. Dickey testified that
Carmela participated with StAR Court for 3 weeks, at which
time she was unsuccessfully discharged, because she left her
treatment program against medical advisement; after leaving
the treatment program, her whereabouts were unknown; she
missed court on September 18; she did only the initial UA even
though she was supposed to do three each week; and she did
not provide proof of attending AA or NA meetings.
the children’s foster mothers testified that Carmela would
frequently miss visits and that the children would be upset and
disappointed. the foster mothers stated that some of the chil-
dren would cry and others could not understand why they could
not see Carmela.
Curry, a DHHS supervisor for child abuse cases, testified
that the children were returned to Carmela’s care from the
fall of 2006 until May 2007. In May 2007, the children were
returned to foster care. After May 2007, Carmela was not
consistent with visitations, and as a result, the visitations were
reduced. Curry testified that Carmela had begun drug treatment
programs on more than one occasion, but did not successfully
complete such programs. Curry also testified that Carmela was
not consistent with individual therapy, had avoided UA’s, and
had had “scattered” employment.
based on the totality of the evidence presented at the ter-
mination hearing, it is clear beyond a reasonable doubt that
continued custody of the children by Carmela is likely to
result in serious emotional or physical harm to the children.
IN Re INteReSt OF LOUIS S. et AL. 	889
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the cycle of starting and failing therapeutic programs, or with-
drawal from such, plus the absence of the required UA’s make
it apparent either that Carmela has chosen methamphetamines
over her children or that her addiction makes it impossible for
her to choose her children rather than drugs. At the time of the
termination hearing, the children had already been in foster
care for 30 of the previous 36 months, and as we said with ref-
erence to Chad, we cannot suspend these children indefinitely
in foster care while Carmela tries to gain what is obviously
very uncertain parental maturity, abilities, and commitment.
See In re Interest of Walter W., 274 Neb. 859, 744 N.W.2d
55 (2008).
3. best interests
the evidence is clear that it is in the best interests of the
children that both Chad’s and Carmela’s parental rights be
terminated. Chad is incarcerated, and will be incarcerated
for quite some time, on drug- and weapons-related convic-
tions, and he has had little contact with the children since his
incarceration. And Carmela, after initially getting her children
back, has relapsed with drug use. She has failed to complete
therapy or treatment programs, has avoided UA’s, and has not
been consistent in visiting her children. Labode and Curry
both testified that it would be in the children’s best interests
that parental rights be terminated. We agree. At the time of the
termination hearing, the children had already been in foster
care for 21⁄2 of the previous 3 years. And as we have said pre-
viously in this opinion, “[c]hildren cannot, and should not, be
suspended in foster care or be made to await uncertain parental
maturity.” In re Interest of Walter W., 274 Neb. at 872, 744
N.W.2d at 65. these children need a safe, permanent home,
and unfortunately, Chad and Carmela cannot provide them
with such.
V. SUMMARY AND CONCLUSION
Chad does not appeal the § 43-292 statutory grounds for
termination of parental rights, or that such termination was
in the children’s best interests. His grounds for appeal lie
strictly with the additional requirements of the ICWA—active
efforts and proof of serious emotional or physical harm. As
890 	17 NebRASkA AppeLLAte RepORtS

stated previously, we find that active efforts were made and
that the children would suffer serious emotional or physical
harm if Chad retained custody. therefore, we affirm the deci-
sion of the juvenile court terminating Chad’s parental rights to
these children.
As for Carmela, we find that the State has proved the
§ 43-292 statutory grounds for termination of parental rights,
that active efforts were made, that the children would suffer
serious emotional or physical harm if she retained custody,
and that termination of Carmela’s parental rights is in the
children’s best interests. therefore, we affirm the decision
of the juvenile court terminating Carmela’s parental rights to
these children.
A ffirmed.
IN Re INteReSt OF LOUIS S. et AL. 	891
Cite as 17 Neb. App. 867