In re Interest of Leslie S. et al.

I n re I nterest of L esLIe s. et aL.,
chILdren under 18 years of age .
state of nebraska , appeLLee ,
v. francIs c., appeLLant.
770 N.W.2d 678
Filed August 4, 2009. 	No. A-09-070.
1. Indian Child Welfare Act: Jurisdiction: Appeal and Error. A denial of a trans-
fer to tribal court is reviewed for an abuse of discretion.
2. Judges: Words and Phrases: Appeal and Error. A judicial abuse of discretion
exists when a judge, within the effective limits of authorized judicial power,
elects to act or refrain from action, but the selected option results in a decision
which is untenable and unfairly deprives a litigant of a substantial right or a just
result in matters submitted for disposition through a judicial system.
3. Indian Child Welfare Act: Jurisdiction: Good Cause. The party opposing a
transfer of jurisdiction to the tribal courts has the burden of establishing that good
cause not to transfer the matter exists.
4. Indian Child Welfare Act: Jurisdiction. That a state court may take jurisdiction
under the Indian Child Welfare Act does not necessarily mean that it should do
so, as the court should consider the rights of the child, the rights of the tribe, and
the conflict of law principles, and should balance the interests of the state and
the tribe.
Appeal 	from 	the 	Separate 	Juvenile 	Court 	of 	Lancaster
County: reggIe L. ryder, Judge. Affirmed.
Susan L. Kirchmann for appellant.
Gary 	E. 	Lacey, 	Lancaster 	County 	Attorney, 	Jenna 	L.
Venema, and Richard Grabow, Senior Certified Law Student,
for appellee.
James L. Beckmann, of Beckmann Law Offices, guardian
ad litem.
I nbody, Chief Judge, and carLson and Moore, Judges.
Moore, Judge.
INTRODUCTION
Francis C. appeals from the decision of the separate juvenile
court of Lancaster County which denied his motion to trans-
fer this juvenile case to the Omaha Tribal Court. Because the
juvenile court did not abuse its discretion in denying Francis’
motion, we affirm.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

BACKGROUND
Kinda S. is the natural mother of Raeanne S., Leslie S.,
Glory S., Crystal S., Iyn C., and Rena C. Francis is the natu-
ral father of Iyn and Rena. As Raeanne has turned 19 and is
no longer under the juvenile court’s jurisdiction, references
throughout this opinion to “the children,” unless otherwise
indicated, refer to Francis and Kinda’s children other than
Raeanne. Francis and Kinda are both enrolled as members of
the Omaha Tribe of Nebraska (the Tribe). The children are also
members of the Tribe.
On July 11, 2006, the State filed a petition in the juve-
nile court alleging that the children, including Raeanne, came
within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2004) in that they lacked proper parental care by reason of
the fault or habits of their parents or custodians, Francis and
Kinda, or that the children were all in a situation dangerous to
life or limb or injurious to their health or morals.
On November 27, 2006, the Tribe filed a notice of intent to
transfer the case to the tribal court pursuant to the Nebraska
Indian Child Welfare Act. The juvenile court heard the Tribe’s
motion on January 22, 2007. Based on Kinda’s objection at the
hearing, the juvenile court denied the motion.
Since the filing of the original juvenile petition in July 2006,
several additional petitions have been filed in the juvenile court
involving some of the children. First, in a case filed under
§ 43-247(3)(b) (Cum. Supp. 2006), Leslie has been determined
to have been habitually truant from school. Leslie has been a
ward of the State since April 13, 2007. As of December 11,
2008, Leslie was being held at the Lancaster County Youth
Services Center, Staff Secure, awaiting an assessment and
recommendations as to what placement level was in her best
interests. The Tribe has not made a request to transfer Leslie’s
truancy case to the tribal court. Second, the State has filed a
delinquency petition involving Glory. In that case, the court
has determined that Glory committed a law violation which,
if committed by an adult, would be deemed a crime. Glory
has been committed to the Office of Juvenile Services, making
her a ward of the State at the agency-based foster care level.
Finally, a case has been filed involving Leslie’s child, who has
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been made a ward of the State in that case. The record before
us shows that Leslie’s child is not eligible for enrollment in
the Tribe.
On October 2, 2008, Francis filed a motion to transfer the
present juvenile case to the tribal court. On October 3, the
Tribe filed a second notice of intent to transfer.
On December 11, 2008, the juvenile court heard the motion
to transfer the case to the tribal court and took the motion to
transfer under advisement. The record shows that sometime
before the hearing, a motion was filed seeking to terminate
Francis’ and Kinda’s parental rights. The record does not con-
tain a copy of the termination motion or show when the ter-
mination motion was filed in relation to the filing of Francis’
motion to transfer.
At the December 11, 2008, hearing, Francis testified that
he sought the present transfer because he wanted his children
to have a greater involvement with the Tribe. Francis read a
prepared statement in which he stated, among other things, that
he had wanted to transfer the case to the tribal court since the
inception of the case, because he wanted to work with Native
American counselors, attorneys, and judges. Francis acknowl-
edged that he has an addiction to drugs and alcohol, but he
insisted that he is taking responsibility and will continue to
be responsible. Francis had not seen his children since March.
He has disagreements with the caseworker assigned by the
State and refuses to work with her. At the time of the hearing,
Francis had pending criminal charges for assault, carrying a
concealed weapon, and possession of a controlled substance.
Francis acknowledged that if the case were transferred to the
tribal court, he would be expected to participate in the same
programs which he has failed to participate in while the case
has been under the juvenile court’s jurisdiction.
Kinda testified that she supported the motion to transfer and
that she felt the transfer was in the children’s best interests.
Kinda had not seen the children since approximately March
2008, even though she was allowed visitation by the court.
Kinda testified that she had objected to the previous motion
to transfer because at that time, she felt that she would be
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reunified with her children more quickly if the case remained
in the juvenile court.
The caseworker assigned to this case by the State testified
that she and the children’s foster parents have developed a
plan to help the children become more involved with tribal
culture. As part of the plan, the children and foster parents
have attended functions on the reservation and have read books
about the Tribe. The caseworker testified that she spoke with
Leslie, Glory, and Crystal about their wishes regarding transfer
of the case and that all three would like the case to be trans-
ferred to the tribal court. At the time of the hearing, Leslie
and Glory were both at least 15 years old and Crystal was 12
years old.
On December 12, 2008, the juvenile court issued an order
denying Francis’ motion to transfer the case to the tribal court.
The court found that good cause had been shown to prevent
the matter from being transferred to the tribal court in that the
issue had been previously litigated and overruled and that the
court would continue to have jurisdiction over the separate
cases involving Glory, Leslie, and Leslie’s child even if the
present case were transferred. The court stated that “the [T]ribe
and the parents delayed nearly two years in expressing an
intent to intervene after the prior effort of the [T]ribe was not
successful.” The court found that it was not in the children’s
best interests to transfer the case to the tribal court “at this
advanced stage of the proceeding.” Francis subsequently per-
fected his appeal to this court.
ASSIGNMENT OF ERROR
Francis asserts, consolidated and restated, that the juvenile
court abused its discretion in denying his motion to transfer the
case to the tribal court.
STANDARD OF REVIEW
[1,2] 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). A judicial abuse of discre-
tion exists when a judge, within the effective limits of autho-
rized judicial power, elects to act or refrain from action, but
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the selected option results in a decision which is untenable
and unfairly deprives a litigant of a substantial right or a just
result in matters submitted for disposition through a judicial
system. Id.
ANALYSIS
Francis asserts that the juvenile court abused its discretion
in denying his motion to transfer the case to the tribal court.
Francis argues that good cause did not exist to deny the trans-
fer, that the earlier request to transfer was not fully and fairly
litigated, that the proceeding was not at an advanced stage, and
that continued jurisdiction over part of the family after transfer
to the tribal court was not an appropriate basis for the denial
of his motion.
Neb. Rev. Stat. § 43-1504(2) (Reissue 2008) provides:
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 jurisdic-
tion 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 sub-
ject to declination by the tribal court of such tribe.
See, also, 25 U.S.C. § 1911(b) (2006) (corresponding fed-
eral Indian Child Welfare Act provision regarding transfer
of proceedings).
[3,4] The party opposing a transfer of jurisdiction to the
tribal courts has the burden of establishing that good cause
not to transfer the matter exists. In re Interest of Brittany C.
et al., 13 Neb. App. 411, 693 N.W.2d 592 (2005). That a state
court may take jurisdiction under the Indian Child Welfare
Act does not necessarily mean that it should do so, as the
court should consider the rights of the child, the rights of
the tribe, and the conflict of law principles, and should bal-
ance the interests of the state and the tribe. In re Interest of
Lawrence H., supra.
The federal Indian Child Welfare Act does not define
“good cause,” but the Bureau of Indian Affairs has published
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nonbinding guidelines for determining whether good cause
exists. Guidelines for State Courts; Indian Child Custody
proceedings, 44 Fed. Reg. 67,584, 67,591 (Nov. 26, 1979) (not
codified), states in part:
C.3. Determination of Good Cause to the Contrary
(a) Good cause not to transfer the proceeding exists
if the Indian child’s tribe does not have a tribal court
as defined by the [federal Indian Child Welfare] Act to
which the case can be transferred.
(b) Good cause not to transfer the proceeding may exist
if any of the following circumstances exists:
(i) The proceeding was at an advanced stage when the
petition to transfer was received and the petitioner did
not file the petition promptly after receiving notice of
the hearing.
(ii) The Indian child is over twelve years of age and
objects to the transfer.
(iii) The evidence necessary to decide the case could
not be adequately presented in the tribal court without
undue hardship to the parties or the witnesses.
(iv) The parents of a child over five years of age are not
available and the child has had little or no contact with
the child’s tribe or members of the child’s tribe.
(c) Socio-economic conditions and the perceived ade-
quacy of tribal or Bureau of Indian Affairs social services
or judicial systems may not be considered in a determina-
tion that good cause exists.
The juvenile court found good cause to deny the motion to
transfer, relying on the facts that a previous motion to transfer
had been denied, that the case had advanced to the stage where
a motion for termination of parental rights had been filed, and
that the court had jurisdiction over multiple cases involving
several of the children. The court also found that the transfer
would not be in the children’s best interests.
Upon our de novo review, we are unable to say that the
juvenile court abused its discretion in denying the motion to
transfer. One of the stated circumstances set forth in the non-
binding regulations noted above is clearly present in this case;
namely, the advanced stage of the proceeding. Francis did not
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Cite as 17 Neb. App. 828

file the motion to transfer until well after 2 years following the
filing of the juvenile petition, during which time Francis did
very little to participate in the case. At the time of the hearing
on this motion to transfer, proceedings had begun to terminate
both parents’ parental rights. In addition, the fact that other
cases involving some of the children were to remain in the
juvenile court is essentially a forum non conveniens matter,
which is a valid basis for good cause to deny transfer. See In
re Interest of Brittany C. et al., 13 Neb. App. 411, 693 N.W.2d
592 (2005). We observe that because Francis is the biological
father of only Iyn and Rena, he did not have standing to seek a
transfer relative to Leslie, Glory, and Crystal. Neither the Tribe
nor Kinda has appealed from the juvenile court’s decision.
Accordingly, our opinion applies only to the ruling relative to
Iyn and Rena.
CONCLUSION
The juvenile court did not abuse its discretion in denying the
motion to transfer.
affIrMed.
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