In re Interest of Shayla H. et al.

remanded to the district court to remand to the county court
for further proceedings.
C onviCtions and sentenCes vaCated.
R eveRsed and Remanded foR
fuRtheR pRoCeedings.
in Re inteRest of shayla h. et al .,
ChildRen undeR 18 yeaRs of age .
state of nebRaska , appellee , v.
david h., appellant.
764 N.W.2d 119
Filed March 10, 2009. 	No. A-08-947.
1. Juvenile Courts: Evidence: Appeal and Error. Juvenile cases are reviewed de
novo on the record, and an appellate court is required to reach a conclusion inde-
pendent of the juvenile court’s findings. When the evidence is in conflict, how-
ever, an appellate court may give weight to the fact that the lower court observed
the witnesses and accepted one version of the facts over the other.
2. Indian Child Welfare Act: Pleadings. The Indian Child Welfare Act’s require-
ment of “active efforts” is separate and distinct from the “reasonable efforts” pro-
vision of Neb. Rev. Stat. § 43-292(6) (Reissue 2008) and therefore requires the
State to plead active efforts by the State to prevent the breakup of the family.
3. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
Appeal 	from 	the 	Separate 	Juvenile 	Court 	of 	Lancaster
County: linda s. poRteR, Judge. Reversed and remanded for
further proceedings.
Patrick T. Carraher, of Legal Aid of Nebraska, for appellant.
Jeremy P. Lavene, Deputy Lancaster County Attorney, and
Richard Grabow, Senior Certified Law Student, for appellee.
CaRlson, mooRe, and Cassel, Judges.
mooRe, Judge.
INTRODUCTION
David H. appeals from an order of the separate juvenile
court of Lancaster County, adjudicating his minor children
436 	17 NebRASkA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

as juveniles under Neb. Rev. Stat. § 43-247(3)(a) (Reissue
2008) and placing the children outside the family home. For
the reasons set forth herein, we reverse, and remand for fur-
ther proceedings.
bACkGROUND
David is the father of three minor children, Shayla H., born
August 21, 2001; Shania H., born August 1, 2003; and Tanya
H., born September 26, 2004. because the mother of the chil-
dren is not involved in the present appeal, we have limited
our recitation of the facts to only those applicable to David.
Through David, the children are eligible for enrollment with
the Rosebud Sioux Tribe (Tribe).
The State filed a petition in the juvenile court on February
15, 2008, alleging that the children were within the meaning
of § 43-247(3)(a) in that they lacked proper parental care by
reason of the faults or habits of David. The petition included
the following allegations: (1) that since November 2007, David
had failed to provide one or more of the children with proper
medical care; (2) that on one or more occasion since January
2007, David had been involved in physical or verbal domes-
tic confrontations with the children’s mother occurring in the
presence of or vicinity of one or more of the children; and (3)
that on one or more occasion since November 2007, David had
been under the influence of methamphetamine while being the
primary caregiver of one or more of the children. The State
alleged that because of these allegations, the children were
at risk of physical or emotional harm. The petition does not
contain any allegations under or references to the Nebraska
Indian Child Welfare Act (ICWA), Neb. Rev. Stat. §§ 43-1501
to 43-1516 (Reissue 2008).
The State also filed a motion for ex parte temporary cus-
tody of the children. In the motion, the State alleged that the
case fell within the provisions of § 43-247(3)(a) and that the
children were in such conditions or surroundings that their
welfare and best interests required that their custody be imme-
diately assumed by the Department of Health and Human
Services (Department) in order to place the children in the
safest and least restrictive placement pending a hearing. In the
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Cite as 17 Neb. App. 436

accompanying affidavit, Holly Leonard, a protection and safety
worker with the Department, set forth allegations of medical
neglect, domestic violence, and substance abuse. Neither the
motion nor the affidavit contains any information regarding the
children’s eligibility for enrollment with the Tribe or allega-
tions under the ICWA. An ex parte order was entered, and the
children were placed in foster care.
A hearing on the State’s motion for temporary custody was
held on February 20, 2008, and was continued for 1 week upon
the parties’ request. At the February 27 temporary custody hear-
ing, the juvenile court heard testimony from Leonard, David,
and the children’s mother. The court received into evidence a
copy of the State’s motion for ex parte temporary custody, with
Leonard’s affidavit, and a copy of a letter from the Tribe indi-
cating the children’s eligibility for enrollment. Leonard testi-
fied that the Department was recommending that custody of
the children be continued with the Department due to the lack
of an appropriate safety monitor to reside in the family home
to ensure the safety of the children. Leonard indicated that the
Department was aware that David was enrolled with the Tribe.
Leonard did not know whether the Tribe had been contacted
about the pending juvenile case. based on the evidence pre-
sented at the hearing, the court continued the children’s tem-
porary custody with the Department, but continued the hearing
to allow for expert testimony relative to the provisions of the
ICWA and to allow for notice to the Tribe.
On April 10, 2008, the matter came on for hearing for adju-
dication on the petition and further hearing on the out-of-home
placement of the children under the applicable standards of
the ICWA. The juvenile court informed David of the nature
of the proceedings, the possible dispositions, and his rights
pursuant to Neb. Rev. Stat. § 43-279.01 (Reissue 2008). David
waived a formal reading of the petition and entered a denial
to the allegations. During the placement portion of the hear-
ing, Linda Dohmen, the children’s caseworker as of March
6, testified. Dohmen has a bachelor’s degree in human devel-
opment and the family and, at the time of the hearing, had
been employed by the Department for close to 11 years. In
her job, Dohmen regularly assesses the safety and well-being
438 	17 NebRASkA APPeLLATe RePORTS

of children, including the children in this case. To assist
her in doing so, Dohmen has received training through the
Department. Initially, when Dohmen began her employment,
she received 17 weeks of training, and then each year, she
receives “up to 24 hours of continuous training to fulfil[l] [her]
duties with the Department.” Dohmen testified that “[a]ssessing
children” is one of the duties she continues to be trained on and
that she recently received a 6-day training on “the new safety
model” being used by the Department. Dohmen testified that
the safety model is “a new way of identifying whether there
[are] any safety risks.” Dohmen was asked whether placing
the children back with David would likely result in serious
emotional or physical damage. David’s attorney objected that
Dohmen was not a qualified expert witness as required under
the ICWA for such an opinion. The court overruled David’s
objection, and Dohmen testified that returning the children
to David’s care would result in serious emotional or physical
damage to the children. The hearing was recessed due to a lack
of time. The court continued the placement hearing, set the
matter for a formal contested hearing, and ordered that its pre-
vious temporary orders remain in effect as modified following
the April 10 hearing.
David filed a motion on April 11, 2008, seeking an order
transferring the matter to the jurisdiction of the Tribe.
On May 2, 2008, the juvenile court considered and denied
the motion to transfer jurisdiction to the Tribe. The court also
heard a motion by the State for approval of placement change
and received further evidence relative to the ICWA standards
in connection with out-of-home placement of the children.
Dohmen testified further in connection with that motion.
Dohmen testified that in her 11 years with the Department,
she has had the opportunity to work with families with Native
American heritage. Dohmen also testified that the Department
believed that there was a risk to the children of emotional or
physical harm such that they could not yet be allowed to return
to the family home. The hearing was recessed due to a lack
of time.
The continued placement hearing and an adjudication hear-
ing were held on May 29, 2008. David entered his voluntary
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Cite as 17 Neb. App. 436

appearance and waived service of summons of the amended
petition on the record. In connection with the adjudication
portion of the hearing, the court heard testimony from the chil-
dren’s grandmother, two police officers, Leonard and a former
Department employee, and the children’s mother. Following
the conclusion of the mother’s testimony, the hearing was
recessed until July 2.
On July 2, 2008, the adjudication hearing resumed with testi-
mony from David and Dohmen. In closing arguments in con-
nection with the adjudication hearing, David’s attorney argued
that the ICWA requirements as to expert testimony applied
both to temporary custody proceedings and to adjudication
trials and that the case should be dismissed due to the State’s
failure to present ICWA expert testimony during the adjudica-
tion hearing. David’s counsel also argued, based on this court’s
ruling in In re Interest of Dakota L. et al., 14 Neb. App. 559,
712 N.W.2d 583 (2006), that the petition should be dismissed
because it did not include any ICWA allegations. Following
the parties’ closing arguments with respect to adjudication, the
court received evidence on the placement issue. In connection
with the placement portion of the July 2 hearing, Dohmen
testified, over David’s objection, that it was the Department’s
position that placing the children back with either parent was
likely to result in substantial emotional or physical harm to
the children.
The juvenile court entered an order on August 15, 2008,
adjudicating the children as juveniles under § 43-247(3)(a).
The court addressed David’s argument that the amended peti-
tion should be dismissed on the ground that it failed to include
allegations pleading the applicability of the ICWA. The court’s
analysis is as follows:
It is clear that the children . . . are “Indian children”
for whom the provisions of [the ICWA] are applicable.
[Certain exhibits] clearly show that the children are eli-
gible for membership in the . . . Tribe, thus triggering the
heightened evidentiary standards and substantive require-
ments for out of home placement of Indian children under
Neb. Rev. Stat. Section 43-1505(4) and (5). The notice
440 	17 NebRASkA APPeLLATe RePORTS

requirements of the [ICWA] are also applicable and were
complied with in this case . . . .
The only authority the Court has been referred to in
support of the position that there is a “pleading require-
ment” of ICWA applicability and standards, is In re
Interest of Dakota [L. et al.], . . . in which the appellate
court found that the [juvenile court] erred when it pro-
ceeded under a petition which lacked ICWA allegations.
In that case, however, the State had filed two petitions,
the latter of which did include specific ICWA allegations,
and the Court proceeded to allow the petitioner to pro-
ceed under the earlier petition over the objection of the
parent, who requested additional service and preparation
time in which to defend against the subsequent petition.
The appellate court did not cite any specific authority for
the proposition that there are “pleading” requirements
under [the] ICWA which make it improper to proceed on
a petition that lacks them. Further, it is noteworthy in that
case that the Juvenile Court in its subsequent adjudication
order did not make specific factual findings as to the sub-
stantive requirements of [the] ICWA.
There is no language in [the ICWA] which requires a
specific “pleading” to be included in a petition or proceed-
ing brought in the interest of children who are covered by
the provisions of the [ICWA]. There are specific eviden-
tiary requirements needed to support a Court-ordered out
of home placement and there are also elevated standards
of proof for proceedings seeking to place children in fos-
ter care. . . . In this case it is clear that those evidentiary
requirements and elevated standards of proof apply inso-
far as the State has requested and is continuing to request
an out of home placement of these children.
Counsel for [David] at no time moved to dismiss the
petition or complained of its alleged insufficiency in terms
of pleading requirements under [the] ICWA, until all of
the evidence by all parties had been presented. Despite
clear knowledge that the provisions of [the] ICWA were
applicable . . . in this case, the issue was never raised as
IN Re INTeReST OF SHAyLA H. eT AL. 	441
Cite as 17 Neb. App. 436

a defect in the petition that could easily have been cor-
rected. based upon counsel’s clear opportunity to raise
the issue of an alleged defect in the pleading at vari-
ous opportunities prior to completion of the evidence,
the lack of any specific statutory pleading requirement
under the [ICWA], as well as the fact that the Court will
clearly apply the evidentiary and burden of proof require-
ments under the [ICWA] to the evidence presented, the
Court overrules the motion to dismiss the petition based
solely upon the lack of ICWA allegations in the petition.
The Court does note that the Amended Petition clearly
alleges that the parents’ actions or the situation place[s]
the children at risk of physical or emotional harm, which
closely parallels the language of [§ 43-]1505(5), requir-
ing the State to prove by clear and convincing evidence,
including testimony of qualified expert witnesses, that the
continued custody of the child by the parent “is likely
to result in serious emotional or physical damage to
the child.”
In its August 15, 2008 order, the juvenile court found that
the State failed to prove the allegations of count I of the peti-
tion (medical neglect) as they related to David and dismissed
that count for failure of proof. The court determined that the
State proved the remaining counts of the petition (domestic
violence and drug use) by clear and convincing evidence as
they related to David.
The juvenile court also made findings on the issue of out-
of-home placement. The court found that Dohmen’s testimony,
particularly when considered with the evidence presented by
the State at the formal hearing as to the violent relationship
between the parents over a period of years and the use of
methamphetamines by the parents as recently as 2008, was
sufficient to satisfy the elevated standards under the ICWA to
warrant an out-of-home placement of the children. The court
observed that in In re Interest of Devin W. et al., 270 Neb.
640, 707 N.W.2d 758 (2005), the Nebraska Supreme Court
noted that the adjudicatory phase of juvenile proceedings
is to determine whether a child falls within the meaning of
§ 43-247(3)(a) and that the dispositional phase is to address
442 	17 NebRASkA APPeLLATe RePORTS

the child’s placement, including the parental preference for
placement. The juvenile court found that, while the In re
Interest of Devin W. et al. case did not involve Indian children,
the placement standards under the ICWA would be further
addressed at the dispositional phase of the present proceed-
ings. The court determined that the State would be required
to present further evidence, including the expert testimony
required under the ICWA, as well as evidence of both reason-
able and active efforts to reunify the family, if continued out-
of-home placement outside either parent’s home is requested
at that time. The court determined, based on the evidence
currently before it, including the testimony of Dohmen and
Leonard, as well as testimony presented during the formal
adjudication hearing, that reasonable and active efforts were
made by the State to prevent the children’s removal from the
parental home and that to return them to either parent’s care,
at that time, would likely result in serious emotional or physi-
cal harm to the children.
ASSIGNMeNTS OF eRROR
David asserts that the juvenile court erred in (1) not follow-
ing decisions from this court regarding pleadings under the
ICWA, (2) entering an order of adjudication when the State
failed to present expert testimony regarding standards set forth
in the ICWA, (3) adjudicating the children as juveniles under
§ 43-247(3)(a), and (4) removing the children from the family
home and placing them in foster care without expert testimony
as required under the ICWA.
David also argues, but does not assign as error, that the
juvenile court erred in finding that a certain district court order
was not relevant evidence in the present case. errors argued
but not assigned will not be considered on appeal. Vokal v.
Nebraska Acct. & Disclosure Comm., 276 Neb. 988, 759
N.W.2d 75 (2009).
STANDARD OF ReVIeW
[1] 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 Taylor W.,
IN Re INTeReST OF SHAyLA H. eT AL. 	443
Cite as 17 Neb. App. 436

276 Neb. 679, 757 N.W.2d 1 (2008); In re Interest of Jagger L.,
270 Neb. 828, 708 N.W.2d 802 (2006). When the evidence is
in conflict, however, an appellate court may give weight to the
fact that the lower court observed the witnesses and accepted
one version of the facts over the other. In re Interest of Jagger
L., supra.
ANALySIS
Pleadings.
David asserts that the juvenile court erred in not follow-
ing decisions from this court regarding pleadings under the
ICWA. We treat this argument as one assigning error to the
juvenile court’s failure to sustain David’s motion to dismiss
the petition.
One of the reasons the juvenile court gave for overrul-
ing David’s motion to dismiss the petition due to the lack of
ICWA allegations was his counsel’s failure to raise the issue
earlier in the proceedings. David’s motion was made during
the course of closing arguments in connection with the adju-
dication hearing. David’s motion was purportedly a motion
for failure to state a cause of action under Neb. Ct. R. Pldg.
§ 6-1112(b)(6), and we observe that § 6-1112(b) allows for
such a defense to be made at trial. See, also, § 6-1112(h)(2)
(waiver or preservation of certain defenses). Thus, to the
extent that the court’s denial was based upon the motion’s
untimeliness, this was error.
David argues that the petition and motions for temporary
custody should have alleged facts with regard to § 43-1505,
which sets forth guidelines for state courts to follow in involun-
tary proceedings when the court knows or has reason to know
that an Indian child is involved. The following subsections of
§ 43-1505 are relevant to our analysis:
(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.
444 	17 NebRASkA APPeLLATe RePORTS

(5) No foster care placement may be ordered in [an
involuntary] proceeding [in a state court] in the absence
of a determination, supported by clear and convincing evi-
dence, including testimony 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.
(6) No termination of parental rights may be ordered in
such proceeding in the absence of a determination, sup-
ported by evidence beyond a reasonable doubt, including
testimony 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.
This court previously addressed ICWA pleading require-
ments in the context of a termination of parental rights pro-
ceeding in In re Interest of Sabrienia B., 9 Neb. App. 888, 621
N.W.2d 836 (2001). In In re Interest of Sabrienia B., the State
failed to include ICWA language in its motion for termination,
although the parties had stipulated that the child was Indian
and that the ICWA would be applicable to any termination
proceedings. The State’s motion for termination included lan-
guage under the general termination statute, see Neb. Rev. Stat.
§ 43-292 (Reissue 2008), but it failed to include any specific
ICWA language under § 43-1505(4) and (6). The mother in
that case demurred to the motion for termination, claiming that
because the State’s motion did not include any ICWA language,
the allegations in the motion did not “‘articulate an essential
element to sustain a finding and Order of termination.’” 9 Neb.
App. at 890, 621 N.W.2d at 839. The juvenile court denied
the demurrer and terminated the mother’s parental rights. The
juvenile court concluded that the State had proved the require-
ments of § 43-1505(4) and (6), even though no ICWA language
appeared in the motion. The mother appealed, alleging, among
other things, that the juvenile court erred in finding that the
State’s motion stated a cause of action.
[2] On appeal, this court held that the ICWA’s requirement
of “active efforts” is separate and distinct from the “reasonable
efforts” provision of § 43-292(6) and therefore requires the
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Cite as 17 Neb. App. 436

State to plead active efforts by the State to prevent the breakup
of the family. In re Interest of Sabrienia B., supra. This court
determined that the State’s motion failed to state a cause of
action for termination of parental rights under the ICWA. We
found the State’s failure to include the relevant ICWA language
in its motion was not remedied by the facts that the applica-
bility of the ICWA had been discussed in court and that the
juvenile court specifically found that the State had proved the
relevant ICWA requirements. This court reversed the order
of termination, granting the State leave to amend its motion
on remand.
This court applied the rationale of In re Interest of Sabrienia
B. to an adjudication proceeding in In re Interest of Dakota L.
et al., 14 Neb. App. 559, 712 N.W.2d 583 (2006). In that case,
the State filed a petition alleging that the children were within
the meaning of § 43-247(3)(a) and also filed a motion for
temporary custody, requesting that temporary custody of the
children be placed with the Department. Neither the original
petition nor the motion for temporary custody included any
allegations under the ICWA. The juvenile court ordered that
temporary custody be given to the Department, with place-
ment to exclude the mother’s home. At a first appearance and
detention/protective custody hearing, the court was informed
that the ICWA was applicable and that the children were
enrolled in an Indian tribe. The court informed the mother of
her rights, including the enhanced evidentiary standard of the
ICWA. An ICWA notice was then sent to the applicable tribe.
Subsequently, the State filed an amended petition with the
court, which petition included ICWA language in its allega-
tions. Then, for reasons not important to our analysis, at the
adjudication hearing, the court proceeded with the adjudication
hearing on the original, rather than the amended, petition. The
juvenile court adjudicated the children under § 43-247(3)(a),
made a finding in the adjudication order that the ICWA applied
to the proceedings, and found that certain allegations of the
petition were true by clear and convincing evidence. The court
made no specific findings under the ICWA.
On appeal to this court, the mother alleged, among other
things, that the State’s petition failed to meet the pleading
446 	17 NebRASkA APPeLLATe RePORTS

requirements of the ICWA, infringing her due process rights.
This court applied the rationale of In re Interest of Sabrienia
B., 9 Neb. App. 888, 621 N.W.2d 836 (2001), and concluded
that in an action for adjudication of Indian children, it is neces-
sary to plead facts under the ICWA. In re Interest of Dakota L.
et al., supra. This court observed that although the State filed
an amended petition including allegations under the ICWA,
the court did not adjudicate the children on that petition. We
determined that it was error for the court to proceed under the
original petition, which did not allege facts under the ICWA,
despite the fact that the mother had been served with the
amended petition and had been notified in court of the ICWA’s
applicability. We also concluded that the court erred in pro-
ceeding on the original petition, which had been superseded
by the amended petition. Accordingly, we reversed the order of
adjudication and remanded the cause for an adjudication under
an appropriate amended petition, with directions to the court to
make specific findings as required by § 43-1505.
In the present case, neither the petition nor the motion for
temporary custody included any allegations under the ICWA.
In the petition, the State asked the court to make such orders
concerning the care, custody, and control of the children as it
deemed proper, including liability for child support if the chil-
dren were placed outside the parental home. The motion for
temporary custody urged that the children’s custody be imme-
diately assumed by the court in order to place the children in
the safest and least restrictive placement pending a hearing.
Clearly, placement outside the family home was contemplated
by both the petition and the motion. We observe that the juve-
nile court in this case did make ICWA findings in its August
15, 2008, order, unlike the court in In re Interest of Dakota L.
et al., 14 Neb. App. 559, 712 N.W.2d 583 (2006). Nonetheless,
we conclude that allegations under the ICWA were required
in the petition and motion for temporary custody. Therefore,
we find that the juvenile court erred in failing to sustain
David’s motion to dismiss made at the adjudication hearing.
The defects in the State’s petition and motion appear capable
of being cured by amendment. We note that the record does not
show that the State ever sought to amend the petition and/or
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motion. but see Alston v. Parker, 363 F.3d 229 (3d Cir. 2004)
(noting that complaints vulnerable to Fed. R. Civ. P. 12(b)(6)
dismissal should not be dismissed without allowing amendment
even when plaintiff does not seek leave to amend). As such,
we reverse, and remand for further proceedings consistent with
this opinion.
Expert Testimony.
[3] David asserts that the juvenile court erred in removing
the children from the family home and placing them in foster
care without expert testimony as required under the ICWA.
because issues regarding the expert testimony required under
the ICWA are likely to recur upon remand, we have reviewed
this assignment of error. An appellate court may, at its discre-
tion, discuss issues unnecessary to the disposition of an appeal
where those issues are likely to recur during further proceed-
ings. Gavin v. Rogers Tech. Servs., 276 Neb. 437, 755 N.W.2d
47 (2008).
Pursuant to the ICWA, qualified expert testimony is required
on the issue of whether serious emotional harm or physical
damage to the Indian child is likely to occur if the child is not
removed from the home before foster care placement may be
ordered. See § 43-1505(5). A similar requirement is imposed
by § 43-1505(6) in the context of termination of parental rights
proceedings. This evidence must be established by qualified
expert testimony provided by a professional person having
substantial education and experience in the area of his or her
specialty. See In re Interest of C.W. et al., 239 Neb. 817, 479
N.W.2d 105 (1992).
The Nebraska Supreme Court has previously addressed the
qualifications of experts to give testimony under § 43-1505. In
In re Interest of C.W. et al., 239 Neb. at 824, 479 N.W.2d at
111, the court noted the following guidelines set forth by the
bureau of Indian Affairs under which expert witnesses will
most likely meet the requirements of the ICWA:
“(i) A member of the Indian child’s tribe who is rec-
ognized by the tribal community as knowledgeable in
tribal customs as they pertain to family organization and
childrearing practices.
448 	17 NebRASkA APPeLLATe RePORTS

“(ii) A lay expert witness having substantial experience
in the delivery of child and family services to Indians,
and extensive knowledge of prevailing social and cul-
tural standards in childrearing practices within the Indian
child’s tribe.
“(iii) A professional person having substantial educa-
tion and experience in the area of his or her specialty.”
In that case, the court reviewed case law from other juris-
dictions finding that a witness’ background in Indian culture
does not necessarily determine that witness’ qualifications as
an expert under the ICWA. The court found no error in the
admission of the expert’s opinion in that particular case, where
he possessed substantial education and experience in his area
of specialty, which was clinical psychology, and the court
determined that his lack of experience with the Indian way of
life did not compromise or undermine the value of his testi-
mony. See, also, In re Interest of Phoebe S. & Rebekah S., 11
Neb. App. 919, 664 N.W.2d 470 (2003) (social work professor
qualified to testify as expert witness under ICWA, where pro-
fessor had substantial education and experience in area of child
welfare, bonding, and attachment and in sociological aspects
of childhood, and was experienced and knowledgeable about
ICWA); C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. App. 1992)
(stating that phrase “qualified expert witness” is not defined by
federal ICWA, but legislative history of federal ICWA reveals
that phrase is meant to apply to expertise beyond normal social
worker’s qualifications), citing Matter of Adoption of T.R.M.,
525 N.e.2d 298 (Ind. 1988).
In the present case, the only witness to provide testimony
that returning the children to David’s care was likely to result
in serious emotional or physical damage to the children was
Dohmen. Dohmen has a bachelor’s degree in human devel-
opment, had been employed by the Department for close to
11 years, and regularly assesses the safety and well-being
of children in the course of her employment. To assist her
in her duties, Dohmen receives regular training through the
Department. Dohmen testified that in her 11 years with the
Department, she has had the opportunity to work with families
with Native American heritage. While we decline to address the
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Cite as 17 Neb. App. 436

question of whether a Department caseworker can ever qualify
as an expert witness under § 43-1505, we conclude in this case
that this particular record did not establish that Dohmen was
sufficiently qualified to testify as an expert witness under the
requirements of the ICWA. The evidence does not support a
conclusion that Dohmen had either substantial experience in
the delivery of child and family services to Indians or exten-
sive knowledge of social and cultural standards in childrearing
practices within the Tribe. Nor does the evidence support a
conclusion that Dohmen was a professional person with sub-
stantial education and experience in the area of her specialty.
Accordingly, the juvenile court erred in relying on her for the
required expert testimony to justify continued out-of-home
placement under the ICWA.
David also asserts that the juvenile court erred in enter-
ing an order of adjudication when the State failed to present
expert testimony regarding standards set forth in the ICWA,
noting that no such expert testimony was presented during
the adjudication portion of any of the hearings in this case.
In addressing David’s assertion, we simply observe that while
the plain language of § 43-1505 requires expert testimony for
foster care placement of an Indian child, the plain language of
§ 43-247(3)(a) does not require expert testimony to establish
that a child is a juvenile as described in that section.
because of our resolution of the above assignments of
error, we need not address David’s assertion that the juvenile
court erred in adjudicating the children as juveniles under
§ 43-247(3)(a).
CONCLUSION
The juvenile court erred in failing to sustain David’s motion
to dismiss made at the adjudication hearing. Accordingly, we
reverse the decision of the juvenile court and remand the cause
for further proceedings as indicated above.
R eveRsed and Remanded foR
fuRtheR pRoCeedings.
450 	17 NebRASkA APPeLLATe RePORTS