In re Interest of Zylena R. & Adrionna R.

834 	284 NEBRASKA REPORTS
answer as an admission. If the court chooses to treat the answer
as an admission, it should thereafter entertain any motion the
guarantor might make to withdraw such admission, and the
court should exercise its discretion under Rule 36 with regard
to such motion.
CONCLUSION
We conclude that the district court abused its discretion
when it treated the guarantor’s answer regarding the prepay-
ment fee as a denial in contravention of Rule 36. Because the
answer in evidence should have been treated under Rule 36 as
an admission that the guarantor owed a prepayment fee, the
court erred when it ignored the admission, considered the terms
of the note, and determined that the guarantor did not owe a
prepayment fee and was entitled as a matter of law to partial
summary judgment on the prepayment fee issue. We therefore
reverse the order sustaining the guarantor’s motion for partial
summary judgment, and we remand the cause for further pro-
ceedings consistent with this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
WRight, J., not participating.
in Re inteRest of Zylena R. and adRionna R.,
childRen undeR 18 yeaRs of age.
state of nebRaska, appellee and cRoss -appellee, v.
elise m., appellant, and omaha tRibe of nebRaska,
inteRvenoR-appellee and cRoss -appellant.
825 N.W.2d 173
Filed December 14, 2012. 	Nos. S-11-659, S-11-660.
1. Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial of a trans-
fer to tribal court under the Indian Child Welfare Act is reviewed for an abuse
of discretion.
2. Statutes. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	835
Cite as 284 Neb. 834
3. Statutes: Appeal and Error. Absent anything to the contrary, an appellate court
will give statutory language its plain and ordinary meaning.
4. Indian Child Welfare Act: Parental Rights: Case Disapproved. To the extent
In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), can be read
as holding that a foster placement proceeding and a subsequent termination of
parental rights proceeding involving an Indian child are not separate and distinct
under the federal Indian Child Welfare Act of 1978 and the Nebraska Indian
Child Welfare Act, it is disapproved.
5. Indian Child Welfare Act: Jurisdiction: Case Overruled. To the extent that
In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992), permits a
state court to consider the best interests of an Indian child in deciding whether
there is good cause to deny a motion to transfer a proceeding to tribal court, it
is overruled.
Petition for further review from the Court of Appeals,
iRWin, sieveRs, and cassel, Judges, on appeal thereto from
the Separate Juvenile Court of Lancaster County, RogeR J.
heideman, Judge. Judgment of Court of Appeals reversed, and
cause remanded with directions.
Norman Langemach for appellant.
Joe Kelly, Lancaster County Attorney, Alicia B. Henderson,
and Christopher M. Turner for appellee.
Rita Grimm and Rosalynd J. Koob, of Heidman Law Firm,
L.L.P., for intervenor-appellee.
Hazell G. Rodriguez, guardian ad litem.
heavican, c.J., WRight, connolly, stephan, mccoRmack,
and milleR-leRman, JJ.
stephan, J.
Zylena R. and Adrionna R. are Indian children who were
adjudicated by the separate juvenile court of Lancaster County
under Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2008) and
placed in foster care. When the State filed motions to ter-
minate parental rights, the Omaha Tribe of Nebraska (the
Tribe) sought to transfer the proceedings to the Omaha Tribal
Court pursuant to the federal Indian Child Welfare Act of

836 	284 NEBRASKA REPORTS
1978 (ICWA)1 and the Nebraska Indian Child Welfare Act
(NICWA).2 The juvenile court denied the requested trans-
fers based upon its finding that the motions were filed at an
“advanced stage” of the juvenile proceedings. The Nebraska
Court of Appeals affirmed in a memorandum opinion, reject-
ing the argument of the mother and the Tribe that under ICWA
and NICWA, a court should treat foster care placement and
termination of parental rights as separate proceedings for
purposes of determining whether a juvenile case pending in
state court has reached an advanced stage at the time a motion
is made to transfer the case to tribal court.3 We granted the
mother’s petition for further review, in which the Tribe has
joined, to consider this question.
BACKGROUND
Elise M. and Francisco R. are the biological parents of
Zylena, born in June 2007, and Adrionna, born in December
2008. Elise has been an enrolled member of the Tribe since
1991. Francisco is not an enrolled member and is not eli-
gible for enrollment. This appeal involves two separate cases
which were filed in the separate juvenile court and eventu-
ally consolidated.
In the case which is before us as No. S-11-659, the State
filed a petition on June 20, 2008, alleging that Zylena was a
child as defined by § 43-247(3)(a) as a result of the fault or
habits of Elise. An amended petition filed on July 1 alleged
that Zylena was a child as defined by § 43-247(3)(a) by reason
of the fault or habits of both Elise and Francisco. On or about
July 9, the State mailed a copy of the amended petition and
a notice to the Omaha Tribal Council. The notice stated that
Zylena was a member of or may be eligible for membership in
the Tribe. The notice further stated that the Tribe could inter-
vene in the case and that the action “may result in restriction of
1 25 U.S.C. § 1901 et seq. (2006).
2 Neb. Rev. Stat. §§ 43-1501 to 43-1516 (Reissue 2008).
3 In re Interest of Zylena R. & Adrionna R., Nos. A-11-659, A-11-660, 2012
WL 1020275 (Neb. App. Mar. 27, 2012) (selected for posting to court Web
site).

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	837
Cite as 284 Neb. 834
parental or custodial rights to the child or foster care placement
of the child or termination of parental rights to the child.” On
July 16, the Tribe informed the State that Zylena was not an
enrolled member and was not eligible for enrollment. Zylena
was adjudicated on September 22, 2008.
The case which is before us as No. S-11-660 was com-
menced by the filing of a petition in the separate juvenile
court on May 1, 2009. In this petition, the State alleged that
both Zylena and Adrionna were minor children as defined by
§ 43-247(3)(a) by reason of the fault or habits of Elise and
Francisco. Both children were adjudicated on May 12. They
were placed with their current foster family on May 29. At that
time, the permanency objective for both children was reunifica-
tion with their parents.
In October 2010, an employee of the Nebraska Department
of Health and Human Services realized that notice had not
been sent to the Tribe with respect to Adrionna. She then
sent a notice to the Tribe and inquired whether Adrionna was
an enrolled member or eligible for membership. The notice
included a statement that the pending action could result in
removal of the child from the home or termination of parental
rights and adoption. The department did not receive a response
from the Tribe.
From and after May 29, 2009, various services were pro-
vided to Elise and Francisco by the State of Nebraska. Neither
Elise nor Francisco made measurable progress toward reha-
bilitation. In November 2010, the permanency objective was
changed from reunification to adoption. And on February 7,
2011, the State filed motions in each case seeking to terminate
the parental rights of Elise and Francisco to both children.
In case No. S-11-660, the case involving both children, the
Tribe filed a notice of intervention on February 14, 2011, and
a notice of intent to transfer on February 22. The latter motion
asserted that Zylena and Adrionna were eligible for enrollment
in the Tribe and requested that the case be transferred to tribal
court pursuant to § 43-1503(4). The Tribe filed similar docu-
ments in case No. S-11-659 on March 1.
At a hearing on the Tribe’s motions, the State and the
guardian ad litem orally objected to the requested transfers

838 	284 NEBRASKA REPORTS
without specifically stating the grounds for their objection.
A representative of the Tribe testified that, due to a math-
ematical error, it had incorrectly determined in July 2008 that
Zylena was not eligible for enrollment. The Tribe presented
evidence that both children are eligible for enrollment through
Elise. The Tribe first realized its error in late January or early
February 2011. A tribal representative testified that but for
the mistake, the Tribe likely would have moved to intervene
sooner. A representative also testified that a tribal court would
work to reunify the family, but would not terminate parental
rights. She explained that a long-term guardianship could be
established for the children by the tribal court. The repre-
sentative further testified that if the cases were transferred,
the Tribe intended to keep the children in their current foster
care placement.
The State presented evidence that it was in the best interests
of the children to remain in their current foster care placement.
In addition, the foster mother testified that she and her husband
were willing to adopt the children and that if they did so they
intended to integrate the children’s cultural traditions into their
lives. A state caseworker reviewed the proposed case plan pre-
pared by the Tribe and opined that it was essentially the same
case plan the State had been implementing since the proceed-
ings began 2 years prior.
In orders entered on June 30, 2011, the juvenile court
denied the Tribe’s motions to transfer to tribal court. In case
No. S-11-659, the case involving only Zylena, the juvenile
court found that the case had been pending since June 2008,
that Zylena was adjudicated in September 2008, that the per-
manency plan of adoption was approved in November 2010,
that a motion to terminate parental rights was filed, and that
the Tribe had not filed its notice of intent to transfer until
March 1, 2011, despite receiving notice in July 2008. The
court concluded that the proceeding was at an advanced stage
and that because the Tribe had not filed its motion to transfer
“for 32 months after receiving original notice, good cause
has been shown to deny the transfer.” In case No. S-11-660,
the case involving both children, the juvenile court noted that
the petition was filed in May 2009; that numerous hearings

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	839
Cite as 284 Neb. 834
had been held; that a permanency plan of adoption had been
approved on November 4, 2010; that a motion to terminate
parental rights was filed; and that the Tribe had not filed its
notice of intent to transfer until February 22, 2011. The court
concluded that because the proceeding was at an advanced
stage when the Tribe requested transfer, “good cause has been
shown to deny the transfer.” The juvenile court did not make
findings in either case as to whether transfer was in the best
interests of the children.
Elise filed a timely appeal in each case, and the Tribe cross-
appealed. Elise assigned that the juvenile court erred in deny-
ing the motion to transfer, arguing that in determining whether
the proceedings were at an “advanced stage” when the motions
to transfer were filed, the court should have considered only
the time after the filing of the petitions to terminate parental
rights, and not the preceding period when the children were
placed in foster care.
In affirming the judgments of the juvenile court, the Court
of Appeals relied on three prior Nebraska cases,4 including
one from this court, in concluding that “it is the policy of
this state to consider the entire history of a juvenile proceed-
ing in determining whether such is at an advanced stage.”5
Utilizing this standard, the court determined that the Tribe
had filed its motion to transfer “1 week after the State filed
a motion to terminate parental rights and nearly 2 years after
Zylena and Adrionna were placed with their current foster
family.”6 Citing our opinion in In re Interest of Bird Head,7
the Court of Appeals noted that “ICWA does not change
the cardinal rule that the best interests of the child are
4 In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992),
disapproved on other grounds, In re Interest of Walter W., 274 Neb. 859,
744 N.W.2d 55 (2008); In re Interest of Louis S. et al., 17 Neb. App. 867,
774 N.W.2d 416 (2009); In re Interest of Leslie S. et al., 17 Neb. App. 828,
770 N.W.2d 678 (2009).
5 In re Interest of Zylena R. & Adrionna R., supra note 3, 2012 WL 1020275
at *6.
6 Id. at *7.
7 In re Interest of Bird Head, 213 Neb. 741, 331 N.W.2d 785 (1983).

840 	284 NEBRASKA REPORTS
paramount, although it may alter its focus.”8 The court noted
that the children were being well cared for in a home that
“appears to be committed to fostering their Native American
heritage” and concluded that “the present situation is clearly
in the children’s best interests.”9 For these reasons, the Court
of Appeals concluded that the juvenile court had not abused
its discretion in finding that good cause existed to deny the
motions to transfer.
ASSIGNMENT OF ERROR
Elise assigns, summarized and consolidated, that the Court
of Appeals erred in finding the juvenile court had good cause
to deny her motion to transfer to tribal court. The Tribe filed
a response to the petition for further review, joining in Elise’s
assignment of error.
STANDARD OF REVIEW
[1] This court has not specifically articulated a standard for
reviewing the order of a juvenile court on a motion to transfer
a case to tribal court. But in In re Interest of C.W. et al.,10 we
held that a Nebraska juvenile court had discretionary authority
to vacate an order transferring a case to a tribal court and that
it did not abuse its discretion in doing so. In subsequent cases,
the Court of Appeals has stated that a denial of a transfer to
tribal court is reviewed for an abuse of discretion.11 We agree
that this is the appropriate standard of review.
ANALYSIS
ICWA was enacted by Congress in 1978. Its stated pur-
pose is
to protect the best interests of Indian children and
to promote the stability and security of Indian tribes
8 In re Interest of Zylena R. & Adrionna R., supra note 3, 2012 WL 1020275
at *7.
9 Id.
10 In re Interest of C.W. et al., supra note 4.
11 See, In re Interest of Louis S. et al., supra note 4; In re Interest of
Lawrence H., 16 Neb. App. 246, 743 N.W.2d 91 (2007).

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	841
Cite as 284 Neb. 834
and families by the establishment of minimum Federal
standards for the removal of Indian children from their
families and the placement of such children in foster
or adoptive homes which will reflect the unique values
of Indian culture, and by providing for assistance to
Indian tribes in the operation of child and family serv-
ice programs.12
ICWA is based upon an assumption that protection of an Indian
child’s relationship to the tribe is in the child’s best interests.13
The Act “‘seeks 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.’”14 The U.S. Supreme Court
has observed that ICWA does so “by establishing ‘a Federal
policy that, where possible, an Indian child should remain in
the Indian community,’ . . . and by making sure that Indian
child welfare determinations are not based on ‘a white, middle-
class standard which, in many cases, forecloses placement with
[an] Indian family.’”15
NICWA was enacted by the Nebraska Legislature in 198516
“to clarify state policies and procedures regarding the imple-
mentation by the State of Nebraska of the federal Indian Child
Welfare Act.”17 The Legislature declared that “[i]t shall be
the policy of the state to cooperate fully with Indian tribes in
Nebraska in order to ensure that the intent and provisions of
the federal Indian Child Welfare Act are enforced.”18
12 § 1902. See In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548
(2007).
13 See, Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30, 109 S.
Ct. 1597, 104 L. Ed. 2d 29 (1989); In re Interest of C.W. et al., supra
note 4.
14 Mississippi Choctaw Indian Band v. Holyfield, supra note 13, 490 U.S. at
37, quoting H.R. Rep. No. 95-1386 (1978), reprinted in 1978 U.S.C.C.A.N.
7530, 7546.
15 Id.
16 1985 Neb. Laws, L.B. 255.
17 § 43-1502.
18 Id.

842 	284 NEBRASKA REPORTS
Under ICWA and NICWA, “Indian child” means any unmar-
ried person who is under age 18 and is either (a) a member
of an Indian tribe or (b) eligible for membership in a tribe as
the biological child of a member of a tribe.19 Both Zylena and
Adrionna meet that definition. If an Indian child resides or is
domiciled within the reservation of a tribe, that tribe has exclu-
sive jurisdiction over any child custody proceeding.20 But when
an Indian child does not reside or is not domiciled on his or her
tribe’s reservation, as is the case here, state courts may exer-
cise jurisdiction over the child concurrently with tribal courts.21
However, a state court must refer “any State court proceeding
for the foster care placement of, or termination of parental
rights to, an Indian child” to a tribal court if the tribe or either
parent petitions for transfer, unless “good cause” is shown for
the retention of state court jurisdiction.22 At a hearing on a peti-
tion to transfer a proceeding to tribal court, the party opposing
the transfer has the burden of establishing that good cause not
to transfer exists.23 The U.S. Supreme Court has characterized
these provisions of ICWA as creating “concurrent but presump-
tively tribal jurisdiction in the case of children not domiciled
on the reservation.”24
“Good cause” is not defined in either ICWA or NICWA.
However, nonbinding guidelines published by the Bureau of
Indian Affairs (BIA Guidelines) provide that good cause not
to transfer a proceeding may exist if the proceeding is “at an
advanced stage” when the petition to transfer was received and
the petitioner failed to “file the petition promptly” after receiv-
ing notice.25 We have looked to the BIA Guidelines in the past
19 § 1903(4); § 43-1503(4).
20 § 1911(a); § 43-1504(1).
21 See, § 1911(b); § 43-1504(2).
22 Id.
23 Mississippi Choctaw Indian Band v. Holyfield, supra note 13; In re
Interest of C.W. et al., supra note 4.
24 Mississippi Choctaw Indian Band v. Holyfield, supra note 13, 490 U.S.
at 36.
25 See Guidelines for State Courts; Indian Child Custody Proceedings, 44
Fed. Reg. 67,584, 67,591, C.3(b)(i) (Nov. 26, 1979) (not codified).

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	843
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in determining good cause issues under ICWA and NICWA.26
Various other courts have done likewise.27
To resolve this appeal, we must address two questions.
First, what constitutes a “proceeding” within the meaning of
ICWA, NICWA, and the BIA Guidelines? And second, should a
Nebraska court apply the “best interests of the child” standard
of the Nebraska Juvenile Code in deciding whether to transfer
a child custody proceeding involving an Indian child to a tribal
court for disposition? Our opinion in In re Interest of C.W. et
al.28 is pertinent to both questions.
In In re Interest of C.W. et al., the juvenile court sustained a
motion to transfer to tribal court filed shortly before trial on a
petition to terminate parental rights, but then vacated its trans-
fer order before the trial commenced. After conducting a trial
and determining that parental rights of the mother and putative
fathers of the children should be terminated, the juvenile court
transferred the case to tribal court for “the dispositional phase
of the proceeding.”29 On appeal, the mother argued that the
juvenile court erred in vacating the pretrial transfer order. In a
cross-appeal, the State argued that the juvenile court erred in
ordering transfer to tribal court after trial.
In rejecting the mother’s argument, we noted that the juve-
nile court had properly considered “the 8-year history of the
case” in concluding that good cause had been shown to deny
the requested transfer.30 While it is not entirely clear from the
opinion, it appears that this time period included juvenile court
proceedings which occurred both before and after the filing
of the motion to terminate parental rights. Thus, although we
did not specifically address the issue presented in the instant
26 In re Interest of C.W. et al., supra note 4. See, also, In re Interest of Louis
S. et al., supra note 4; In re Interest of Leslie S. et al., supra note 4.
27 See, e.g., People ex rel. T.I., 707 N.W.2d 826 (S.D. 2005); In re Adoption
of S.W., 41 P.3d 1003 (Okla. Civ. App. 2001); In re A.P., 25 Kan. App.
2d 268, 961 P.2d 706 (1998); Matter of M.E.M., 195 Mont. 329, 635 P.2d
1313 (1981).
28 In re Interest of C.W. et al., supra note 4.
29 Id. at 821, 479 N.W.2d at 110.
30 Id. at 830, 479 N.W.2d at 115.

844 	284 NEBRASKA REPORTS
cases, our reasoning in In re Interest of C.W. et al. implicitly
supports the State’s argument that a “proceeding” includes
everything that transpires after the filing of a petition invoking
the jurisdiction of the juvenile court under § 43-247(3)(a). In
reversing the posttrial transfer order, we noted with approval
decisions by courts in Arizona and Indiana recognizing that the
best interests of the child should be considered in determining
whether there is good cause to deny a requested transfer to
tribal court. We concluded:
Although we realize that the guidelines deem inappropri-
ate considerations of tribal socioeconomic considerations
and the perceived adequacy of the tribal or Bureau of
Indian Affairs social services or judicial systems, we also
recognize that, in the case of two of the children, those
considerations become necessary to a determination of the
best interests of the children and, therefore, “good cause”
not to transfer the case.31
We reasoned that two of the children had special needs and
would suffer “if their respective foster homes, the only stability
they have ever known, are taken away from them.”32 We now
revisit our holdings in In re Interest of C.W. et al. to determine
whether they are consistent with ICWA and NICWA.
What constitutes “pRoceeding”?
Elise and the Tribe focus on the language of ICWA and
NICWA governing transfer to tribal court of a state court pro-
ceeding “for the foster care placement of, or termination of
parental rights to,” an Indian child not residing on a reserva-
tion, in the absence of good cause to the contrary.33 They argue
that the use of the disjunctive “or” demonstrates a foster care
proceeding differs from a termination of parental rights pro-
ceeding under ICWA and NICWA and that therefore the two
should not be lumped together in considering whether a motion
to transfer is made at an “advanced stage” of the proceed-
ing. The State and the guardian ad litem argue that under the
31 Id. at 835-36, 479 N.W.2d at 118.
32 Id. at 836, 479 N.W.2d at 118.
33 § 1911(b); § 43-1504(2) (emphases supplied).

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	845
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reasoning of In re Interest of C.W. et al.,34 the juvenile court
properly considered everything which had occurred after the
initial filing of these cases in determining that the proceed-
ings had reached an advanced stage when the Tribe moved to
transfer. They also refer us to two prior opinions of the Court
of Appeals35 and an Illinois appellate court decision support-
ing this position.36 In deciding In re Interest of C.W. et al., we
did not apply principles of statutory construction to determine
whether, under ICWA and NICA, a termination of parental
rights proceeding should be regarded as separate and distinct
from a foster care placement proceeding which preceded it in
the same docketed case. We do so now.
Under the definitional sections of ICWA and NICWA, the
term “child custody proceeding” includes foster care place-
ment, termination of parental rights, preadoptive placement,
and adoptive placement.37 Foster care placement is specifically
defined to mean “any action removing an Indian child from
its parent or Indian custodian for temporary placement.”38
Termination of parental rights means “any action result-
ing in the termination of the parent-child relationship.”39
Preadoptive placement means “temporary placement of an
Indian child . . . after the termination of parental rights.”40
And adoptive placement means “the permanent placement of
an Indian child for adoption.”41 As we have noted, the statu-
tory provisions governing transfer provide that in any state
court “proceeding for the foster care placement of, or termi-
nation of parental rights to” an Indian child not domiciled
34 In re Interest of C.W. et al., supra note 4.
35 In re Interest of Louis S. et al., supra note 4; In re Interest of Leslie S. et
al., supra note 4.
36 In re M.H., 2011 IL App (1st) 110196, 956 N.E.2d 510, 353 Ill. Dec. 648
(2011).
37 § 1903(1); 43-1503(1).
38 § 1903(1)(i); § 43-1503(1)(a).
39 § 1903(1)(ii); § 43-1503(1)(b).
40 § 1903(1)(iii); § 43-1503(1)(c).
41 § 1903(1)(iv); § 43-1503(1)(d).

846 	284 NEBRASKA REPORTS
or residing within a reservation, a state court shall grant a
motion to transfer to tribal court “in the absence of good
cause to the contrary.”42
[2,3] A court must attempt to give effect to all parts of a stat-
ute, and if it can be avoided, no word, clause, or sentence will
be rejected as superfluous or meaningless.43 Absent anything
to the contrary, an appellate court will give statutory language
its plain and ordinary meaning.44 Applying these familiar prin-
ciples, we conclude that ICWA and NICWA contemplate four
different types of child custody proceedings, two of which
must be transferred from a state court to a tribal court upon
proper motion in the absence of good cause to the contrary.
Thus, when the BIA Guidelines state that good cause may exist
when “[t]he proceeding was at an advanced stage” at the time
a petition to transfer is received, they can only be referring
to one of the two proceedings subject to transfer: foster care
placement or termination of parental rights. The State’s argu-
ment that a foster care placement proceeding and a termination
of parental rights proceeding are a single “proceeding” for
purposes of the “advanced stage” analysis is inconsistent with
the plain language of ICWA and NICWA, which defines them
as separate proceedings. The fact that Nebraska law permits
both objectives to be pursued sequentially in a single-docketed
case is entirely irrelevant to the question of whether they are
separate “proceedings” under the plain statutory language of
ICWA and NICWA.
At least two other state courts have reached this conclusion.
The North Dakota Supreme Court in In re A.B.45 held that a
juvenile court “correctly interpreted ICWA to measure the
42 § 1911(b); § 43-1504(2).
43 State v. State Code Agencies Teachers Assn., 280 Neb. 459, 788 N.W.2d
238 (2010); Herrington v. P.R. Ventures, 279 Neb. 754, 781 N.W.2d 196
(2010).
44 Metropolitan Comm. College Area v. City of Omaha, 277 Neb. 782, 765
N.W.2d 440 (2009); Koch v. Cedar Cty. Freeholder Bd., 276 Neb. 1009,
759 N.W.2d 464 (2009).
45 In re A.B., 663 N.W.2d 625, 632 (N.D. 2003).

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	847
Cite as 284 Neb. 834
relevant time period for a motion to transfer jurisdiction . . .
from the filing of the petition to terminate parental rights.”
This was so even though there was a preceding foster place-
ment in the same docketed case. In In re A.B., the court noted
that its holding was based on the plain language of ICWA
separately defining termination of parental rights proceedings
and foster placement proceedings and the different purposes
served by those proceedings under ICWA. Specifically, the
court found that the “plain language of 25 U.S.C. § 1911(b)
authorizes transfer motions for either foster care placement
proceedings or for termination of parental rights proceed-
ings” and that interpreting the two proceedings as one “would
subsume an Indian tribe’s right to request transfer of a ter-
mination proceeding into its right to request transfer of an
earlier foster placement proceeding.”46 The court reasoned that
doing so was particularly troubling when a foster care place-
ment only temporarily affects an Indian child’s relationship
with his or her tribe, while a termination proceeding severs
that relationship.
A Minnesota appellate court employed similar reasoning in
concluding that foster placement proceedings and termination
of parental rights proceedings were separate and distinct under
ICWA and should not be “conflated” in determining whether a
“proceeding” is at an “advanced stage” within the meaning of
the BIA Guidelines.47 The court noted that whether Minnesota
law considered the two types of proceedings to be “continuous
or distinct” was not pertinent to the issue of transfer, which
was governed by the statutory language of ICWA.48 It further
reasoned that a tribe’s interest in maintaining its relationship
with an Indian child may not be implicated in a foster care
placement proceeding to the same degree as in a termina-
tion proceeding.49
46 Id.
47 In re Welfare of Children of R.M.B., 735 N.W.2d 348, 352 (Minn. App.
2007).
48 Id. at 352 n.6.
49 In re Welfare of Children of R.M.B., supra note 47.

848 	284 NEBRASKA REPORTS
We acknowledge that an Illinois appellate court reached
a contrary conclusion in In re M.H.50 That court rejected an
argument that the filing of a petition to terminate parental
rights initiated a new “proceeding” under ICWA. The court
noted that under settled Illinois law, the filing of a petition to
terminate parental rights did not initiate an entirely new pro-
ceeding within an existing juvenile case and concluded that the
plain language of ICWA did not support a distinction between
a proceeding to terminate parental rights and a foster place-
ment proceeding which immediately preceded it in the same
docketed case. Accordingly, the court concluded that under
the plain language of ICWA, the “proceedings” commenced
when the child was placed in foster care and the tribe’s motion
to transfer more than 2 years later was made at an advanced
stage of the proceeding, constituting good cause for denying
the motion.51
The record in this case vividly demonstrates why the rea-
soning of the Illinois court is inconsistent with the principles
underlying ICWA and NICWA. A representative of the Tribe
testified that placement of Indian children with foster parents,
relatives, or a long-term guardian is consistent with the Tribe’s
cultural interests but that termination of parental rights is not.
Thus, a Tribe may have no reason to seek transfer of a foster
placement proceeding where it agrees with the Indian child’s
placement and the permanency goal is reunification with the
parents. However, once the goal becomes termination of paren-
tal rights, a Tribe has a strong cultural interest in seeking trans-
fer of that proceeding to tribal court. As one court has noted,
“[s]upporting the State’s reunification efforts should not result
in allegations of a Tribe’s lack of diligence in requesting trans-
fer” when the proceeding becomes one for the termination of
parental rights.52
[4] Accordingly, to the extent In re Interest of C.W. et al.53
can be read as holding that a foster placement proceeding and a
50 In re M.H., supra note 36.
51 Id. at ¶ 59, 956 N.E.2d at 522, 353 Ill. Dec. at 660.
52 In re M.S., 237 P.3d 161, 169 (Okla. 2010).
53 In re Interest of C.W. et al., supra note 4.

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	849
Cite as 284 Neb. 834
subsequent termination of parental rights proceeding involv-
ing an Indian child are not separate and distinct under ICWA
and NICWA, it is disapproved. Here, the relevant proceed-
ings commenced on February 7, 2011, when the State filed its
motions to terminate parental rights. The Tribe intervened and
requested transfer of both cases by March 1, which was prior
to any substantive hearing or adjudication and indeed prior to
the parents’ appearances and pleas to the termination motions.
The commentary to the BIA Guidelines indicates that denial
of a requested transfer at an “advanced stage” of a proceeding
serves the purpose of preventing a party from waiting “until
the case is almost complete to ask that it be transferred to
another court and retried.”54 That was clearly not the case here,
as the termination of parental rights proceedings had barely
begun when the Tribe requested that they be transferred to
tribal court.
best inteRests
The juvenile court made no findings as to whether transfer to
tribal court would be in the best interests of these Indian chil-
dren. But the Court of Appeals did. It noted that the children
had been out of their parents’ home for 2 years, that they were
being well cared for in a home that “appears to be commit-
ted to fostering their Native American heritage,” and that “the
present situation is clearly in the children’s best interests.”55
The court included this best interests determination as one of
the reasons for its conclusion that the juvenile court did not
abuse its discretion in denying the motions to transfer.
As the legal underpinning of its best interests analysis,
the Court of Appeals relied on this court’s decision in In re
Interest of Bird Head.56 In that case, we held that a county
court did not err in denying a motion to transfer on grounds
that the motion had been abandoned and good cause had been
shown. We then turned to a separate issue, whether the county
54 BIA Guidelines, supra note 25, 44 Fed. Reg. 67,590, C.1, commentary.
55 In re Interest of Zylena R. & Adrionna R., supra note 3, 2012 WL 1020275
at *7.
56 In re Interest of Bird Head, supra note 7.

850 	284 NEBRASKA REPORTS
court erred in failing to follow the preferential preadoptive
placement provisions of ICWA in the absence of good cause to
the contrary. We concluded that it did, noting that the county
court had made no findings as to what good cause was shown
to warrant failure to place the child with persons or agencies
having preference under ICWA.57 In reaching this conclusion,
we stated that ICWA “does not change the cardinal rule that
the best interests of the child are paramount, although it may
alter its focus.”58 In this case, the Court of Appeals cited that
statement as the basis for its best interests findings. But that
reliance was misplaced, because in In re Interest of Bird Head,
that principle was stated in the context of the issue of place-
ment, not transfer to tribal court.
But in In re Interest of C.W. et al., we clearly did deter-
mine that the best interests of Indian children was a factor
to be considered in deciding whether to transfer a state court
proceeding to tribal court. We relied on decisions of Arizona59
and Indiana60 courts in reaching this conclusion. But other state
courts have taken a contrary and what we now believe to be
a better approach. In In re A.B., the North Dakota Supreme
Court stated:
Although one of the goals of ICWA is to protect the
best interests of an Indian child, . . . the issue here is the
threshold question regarding the proper forum for that
decision. . . . We agree with those courts that have con-
cluded the best interest of the child is not a consideration
for the threshold determination of whether there is good
cause not to transfer jurisdiction to a tribal court.61
One of the cases which the North Dakota court found per-
suasive was Yavapai-Apache Tribe v. Mejia,62 in which a Texas
57 See § 1915(b).
58 In re Interest of Bird Head, supra note 7, 213 Neb. at 750, 331 N.W.2d at
791.
59 Matter of Appeal in Maricopa County, 136 Ariz. 528, 667 P.2d 228 (Ariz.
App. 1983).
60 Matter of Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988).
61 In re A.B., supra note 45, 663 N.W.2d at 633-34 (citations omitted).
62 Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex. App. 1995).

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	851
Cite as 284 Neb. 834
appellate court held that the best interests standard is not an
appropriate consideration in a determination of whether good
cause exists to deny transfer of jurisdiction for two reasons.
First, the court concluded that applying the best interests stan-
dard to transfer decisions would defeat the purpose for which
ICWA was enacted by allowing “Anglo cultural biases into the
analysis.”63 The court reasoned:
The ICWA precludes the imposition of Anglo standards
by creating a broad presumption of jurisdiction in the
tribes. Thus, the jurisdictions [sic] provisions in sections
1911(a) and (b) are at the very heart of the ICWA. We
decline to embrace a test that would, in our judgment,
eviscerate the spirit of the Act.64
Second, the Texas court rejected the best interests standard
because it deemed it relevant to issues of placement, not juris-
diction. The court stated:
For a court to use this standard when deciding a purely
jurisdictional matter, alters the focus of the case, and
the issue becomes not what judicial entity should decide
custody, but the standard by which the decision itself is
made. The utilization of the best interest standard and fact
findings made on that basis reflects the Anglo-American
legal system’s distrust of Indian legal competence by its
assuming that an Indian determination would be detri-
mental to the child.65
Other courts have followed similar reasoning in holding that
best interests should not be a factor in resolving the issue of
whether there is good cause to deny a motion to transfer a case
involving an Indian child from state court to tribal court.66
[5] We now conclude that these decisions are more con-
sistent with the underlying purpose of ICWA and NICWA
than the Indiana and Arizona cases we cited in In re Interest
63 Id. at 169.
64 Id. at 170.
65 Id.
66 See, People in Interest of J.L.P, 870 P.2d 1252 (Colo. App. 1994); Matter
of Ashley Elizabeth R., 116 N.M. 416, 863 P.2d 451 (N.M. App. 1993); In
re Armell, 194 Ill. App. 3d 31, 550 N.E.2d 1060, 141 Ill. Dec. 14 (1990).

852 	284 NEBRASKA REPORTS
of C.W. et al. We further note that the BIA Guidelines do not
include the best interests of a child as “good cause” for deny-
ing transfer to a tribal court, but instead, specifically state that
“[s]ocio-economic conditions and the perceived adequacy of
tribal or Bureau of Indian Affairs social services or judicial
systems may not be considered in a determination that good
cause exists.”67 The reality is that both a juvenile court apply-
ing Nebraska law and a tribal court proceeding under ICWA
must act in the best interests of an Indian child over whom
they have jurisdiction. The question before a state court con-
sidering a motion to transfer to tribal court is simply which
tribunal should make that decision. Permitting a state court to
deny a motion to transfer based upon its perception of the best
interests of the child negates the concept of “presumptively
tribal jurisdiction” over Indian children who do not reside on
a reservation and undermines the federal policy established by
ICWA of ensuring that “Indian child welfare determinations
are not based on ‘a white, middle-class standard which, in
many cases, forecloses placement with [an] Indian family.’”68
Stated another way, recognizing best interests as “good cause”
for denying transfer permits state courts to decide that it is not
in the best interests of Indian children to have a tribal court
determine what is in their best interests. By enacting ICWA,
Congress clearly stated otherwise. Accordingly, we overrule In
re Interest of C.W. et al.69 to the extent that it permits a state
court to consider the best interests of an Indian child in decid-
ing whether there is good cause to deny a motion to transfer a
proceeding to tribal court.
CONCLUSION
For the reasons discussed, we conclude that there is no basis
on the records for a determination that the motions to transfer
these cases to tribal court were filed at an advanced stage of
67 BIA Guidelines, supra note 25, 44 Fed. Reg. 67,591, C.3(c).
68 Mississippi Choctaw Indian Band v. Holyfield, supra note 13, 490 U.S.
at 36-37, quoting H.R. Rep. No. 95-1386 (1978), reprinted in 1978
U.S.C.C.A.N. 7530, 7546.
69 In re Interest of C.W. et al., supra note 4.

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	853
Cite as 284 Neb. 834
the proceedings to terminate parental rights and that the Court
of Appeals therefore erred in affirming the separate juvenile
court’s denial of the motions on this ground. Accordingly, we
reverse, and remand to the Court of Appeals with directions to
reverse the judgments of the separate juvenile court and direct
that court to sustain the motions to transfer the cases to the
Omaha Tribal Court.
R eveRsed and Remanded With diRections.
cassel, J., not participating.
heavican, C.J., dissenting.
I respectfully dissent. I would find that the proceedings in
these consolidated cases were at an advanced stage and that
good cause existed for the juvenile court to retain jurisdiction
and to deny the requests to transfer. As such, I would affirm the
decisions of the juvenile court.
As noted by the majority, we addressed, albeit implicitly, the
issue presented here in In re Interest of C.W. et al.,1 where this
court noted that the juvenile court had properly considered “the
8-year history of the case” in concluding that good cause had
been shown to deny the requested transfer.2 We also noted in In
re Interest of C.W. et al. that it was appropriate for the juvenile
court to consider the best interests of the child in determining
good cause to deny a transfer.3 Since our decision in that case,
the Court of Appeals has twice considered the entire pendency
of a juvenile abuse and neglect proceeding when affirming the
juvenile court’s denial of a motion to transfer to tribal courts
on the ground that the motion was filed at an advanced stage
of the proceeding.4
Moreover, this position is consistent with other author-
ity. The Illinois Court of Appeals in In re M.H.,5 rejected an
1 In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105 (1992).
2 Id. at 830, 479 N.W.2d at 115.
3 In re Interest of C.W. et al., supra note 1.
4 See, In re Interest of Louis S. et al., 17 Neb. App. 867, 774 N.W.2d 416
(2009); In re Interest of Leslie S. et al., 17 Neb. App. 828, 770 N.W.2d 678
(2009).
5 In re M.H., 2011 IL App (1st) 110196, 956 N.E.2d 510, 353 Ill. Dec. 648
(2011).

854 	284 NEBRASKA REPORTS
argument that the filing of a petition to terminate parental
rights initiated a new “proceeding” under ICWA. The court
in In re M.H. explicitly addressed and rejected the reasoning
of the North Dakota Supreme Court in In re A.B.,6 which is
relied upon by the majority, and concluded it did not find that
the plain language of ICWA supported a distinction between a
proceeding to terminate parental rights and a foster placement
proceeding which immediately preceded it in the same dock-
eted case.
In my view, the conclusion that a new “proceeding” is not
initiated by the filing of a motion to terminate parental rights is
an appropriate balance of the interests of all the stakeholders in
a juvenile case. An Indian tribe unquestionably has an interest
in “protect[ing] the best interests of Indian children and [in]
promot[ing] the stability and security of Indian tribes,”7 and
Indian children should be placed whenever possible in homes
that “will reflect the unique values of Indian culture.”8 But the
State also has a parens patriae interest9 and has a right to pro-
tect the welfare of its resident children,10 which includes estab-
lishing permanency for those children.11 By requiring notice
and freely allowing intervention, at least in nonadvanced stages
of the proceedings, the Tribe is permitted sufficient opportunity
to protect its interest while not interfering with the welfare and
best interests of children residing in Nebraska. By curtailing
the right of transfer after a certain point, the State is allowed to
pursue permanency on behalf of children who are not able to
be returned to their parental home.
In this instance, the Tribe was given notice of these pro-
ceedings. In Zylena’s case, the amended petition to adjudicate
was filed on July 1, 2008, and notice was sent to the Tribe on
6 In re A.B., 663 N.W.2d 625 (N.D. 2003).
7 See 25 U.S.C. § 1902 (2006).
8 Id.
9 See In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012).
10 See id.
11 Neb. Rev. Stat. § 43-246(6) (Cum. Supp. 2012). Cf. Neb. Rev. Stat.
§ 43-1312 (Cum. Supp. 2012).

IN RE INTEREST OF ZYLENA R. & ADRIONNA R. 	855
Cite as 284 Neb. 834
July 9. By July 16, the Tribe responded, indicating that Zylena
was not an enrolled member of the Tribe and that she was not
eligible for enrollment. With Adrionna, a petition to adjudicate
was not filed until May 1, 2009, and notice was admittedly not
sent until October 2010. But notice was sent, and the Tribe did
not seek to intervene until February 14, 2011, or a week after
the State filed a motion to terminate the parental rights to both
Zylena and Adrionna.
Not only was the Tribe sent notice of these actions, that
notice was unambiguous: the action filed on behalf of Zylena,
and later Adrionna, “may result in restriction of parental or
custodial rights to the child or foster care placement of the
child or termination of parental rights to the child.” In Zylena’s
case, the Tribe actually responded in the negative and allowed
the State’s proceedings to continue for another 31 months
before finally asking to intervene and for transfer.
Nebraska’s juvenile code provides that the code should
be construed to accomplish, among other goals, “permanent
arrangements for children . . . who are unable to return
home.”12 But in this case, it is clear that by allowing the trans-
fer, Zylena’s and Adrionna’s rights to such permanency have
been delayed as the futures of these children play out in yet
another court.
I would hold that the filing of a petition to terminate parental
rights does not commence a new proceeding under ICWA and
NICWA and that the Tribe’s intervention came at an advanced
stage of the proceedings. I would therefore conclude that this
late intervention was good cause to deny the Tribe’s motions to
transfer and that the decision of the Court of Appeals affirm-
ing the juvenile court’s denial of the motions to transfer should
be affirmed.
12 § 43-246(6).