(1) In any involuntary proceeding in a state court, when the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall send a notice conforming to the requirements of 25 C.F.R. 23.11 to the parents, the Indian custodian, and the Indian child's tribe or tribes, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe or tribes cannot be determined, such notice shall be given to the secretary in like manner, who may provide the requisite notice to the parent or Indian custodian and the tribe or tribes. No foster care placement or termination of parental rights proceedings shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or tribes or the secretary. The parent or Indian custodian or the tribe or tribes shall, upon request, be granted up to twenty additional days to prepare for such proceeding.
(2) In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interests of the Indian child. When state law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the secretary upon appointment of counsel and request from the secretary, upon certification of the presiding judge, payment of reasonable attorney's fees out of funds which may be appropriated.
(3) Each party to a foster care placement or termination of parental rights proceeding under state law involving an Indian child shall have the right to examine all reports or other documents filed with the court upon which any decision with respect to such action may be based.
(4) Any party seeking to effect a foster care placement 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 or unite the parent or Indian custodian with the Indian child and that these efforts have proved unsuccessful. Any written evidence showing that active efforts have been made shall be admissible in a proceeding under the Nebraska Indian Child Welfare Act. Prior to the court ordering placement of the child in foster care or the termination of parental rights, the court shall make a determination that active efforts have been provided or that the party seeking placement or termination has demonstrated that attempts were made to provide active efforts to the extent possible under the circumstances.
(5) The court shall not order foster care placement under this section in the absence of a determination by the court, supported by clear and convincing evidence, 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) The court shall not order termination of parental rights of an Indian child under this section unless and until the court:
(a) Makes a determination, supported 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; and
(b) Makes a determination, in the case of an Indian child that may be eligible for a tribal customary adoption, that such adoption would not be an appropriate permanency plan and would not be in the best interests of the Indian child. It shall be sufficient justification to find that a tribal customary adoption would not be an appropriate permanency plan and would not be in the best interests of the Indian child if:
(i) Notice was provided to the tribe of the Indian child as provided in section 43-1505.02; and
(ii) By the time of the initial appearance of the parties on the termination of parental rights, the tribe did not file an objection with the court stating its belief that tribal customary adoption would be appropriate for the child and in the best interests of the Indian child.
Notes of Decisions
In Re Interest of Walter W., 744 N.W.2d 55 (Neb. 2008).
· cites it 19× “We also conclude that the State met its burden in proving the “serious emotional or physical damage” element and that terminating Martina’s parental rights is in Walter’s best interests.”
In Re Interest of Dakota L., 712 N.W.2d 583 (Neb. Ct. App. 2006).
· cites it 27× “Specifically, the amended petition alleged that the five children were enrolled or were eligible for enrollment in the Omaha Tribe and that pursuant to Neb. Rev. Stat. § 43-1505 (4) (Reissue 2004), active efforts had been made to provide remedial services and rehabilitative…”
Linda H. v. Tyler R. (In Re Micah H.), 301 Neb. 437 (Neb. 2018).
· cites it 6× “Linda and Daniel also served a copy of the complaint on the president of the Oglala Sioux Tribe, as required by § 43-1505(1), and the tribe declined to intervene.”
In re Guardianship of Eliza W., 304 Neb. 995 (Neb. 2020).
· cites it 9× “On that form document, Tara asserted that she was entitled to appointed counsel under a provision of NICWA, Neb. Rev. Stat. § 43-1505 (2) (Reissue 2016), that she had no forms of income, - 998 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF…”
State v. Nebrasks (In Re Interest Audrey T.), 26 Neb. Ct. App. 822 (Neb. Ct. App. 2019).
· cites it 9× “Therefore, we believe the stated purposes of the ICWA are best served by allowing parents to raise, in their direct appeal from a termination of parental rights, the issue of the State's failure to notify the child's Indian tribe of the termination of parental rights proceedings…”
In re Interest of Nery v., 20 Neb. Ct. App. 798 (Neb. Ct. App. 2013).
· cites it 22× “Pursuant to Neb. Rev. Stat. § 43-1505 (1) (Reissue 2008), in any involuntary proceeding in a state court, when the court knows or has reason to know that an Indian child is involved, the party seeking termination of parental rights to an Indian child shall notify the Indian…”
In Interest of Shayla H., 764 N.W.2d 119 (Neb. Ct. App. 2009).
· cites it 12× “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 involuntary proceedings when the court knows or has reason to know that an Indian child is involved.”
In Re Interest of Louis S., 774 N.W.2d 416 (Neb. Ct. App. 2009).
· cites it 12× “Section 43-1505 requires in part: (4) Any party seeking to effect a foster care placement 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…”
In Re Interest of Sabrienia B., 621 N.W.2d 836 (Neb. Ct. App. 2001).
· cites it 12× “The court further specifically found that the State had proved the requirements of the ICWA, Neb. Rev. Stat. § 43-1505 (4) and (6) (Reissue 1998).”
State v. Shannon P., 709 N.W.2d 676 (Neb. Ct. App. 2006).
· cites it 8× “The petition stated that it was error for the court to adjudicate the children by a “preponderance of the evidence,” rather than by “ ‘clear and convincing evidence’ ” (emphasis omitted) as required under Neb. Rev. Stat. § 43-1505 (5) (Reissue 2004).”
State v. Regina S., 664 N.W.2d 470 (Neb. Ct. App. 2003).
· cites it 9× “See § 43-1505. Section 43-1505(4), addressing termination of parental rights in cases involving an Indian child, provides as follows: Any party seeking to effect .”
In Re Interest of Walter W., 719 N.W.2d 304 (Neb. Ct. App. 2006).
· cites it 11× “The motion further alleged that active efforts required under Neb. Rev. Stat. § 43-1505 (4) (Reissue 2004) had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family, but that said efforts were unsuccessful, and that…”
— Neb. Rev. Stat. § 43-1505(1) — 11 cases
In Re Interest of Dakota L., 712 N.W.2d 583 (Neb. Ct. App. 2006).
“Specifically, the amended petition alleged that the five children were enrolled or were eligible for enrollment in the Omaha Tribe and that pursuant to Neb. Rev. Stat. § 43-1505 (4) (Reissue 2004), active efforts had been made to provide remedial services and rehabilitative…”
In re Interest of Nery v., 20 Neb. Ct. App. 798 (Neb. Ct. App. 2013).
“Pursuant to Neb. Rev. Stat. § 43-1505 (1) (Reissue 2008), in any involuntary proceeding in a state court, when the court knows or has reason to know that an Indian child is involved, the party seeking termination of parental rights to an Indian child shall notify the Indian…”
In Re Interest of Walter W., 719 N.W.2d 304 (Neb. Ct. App. 2006).
“The motion further alleged that active efforts required under Neb. Rev. Stat. § 43-1505 (4) (Reissue 2004) had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family, but that said efforts were unsuccessful, and that…”
Linda H. v. Tyler R. (In Re Micah H.), 301 Neb. 437 (Neb. 2018).
“Linda and Daniel also served a copy of the complaint on the president of the Oglala Sioux Tribe, as required by § 43-1505(1), and the tribe declined to intervene.”
State v. Nebrasks (In Re Interest Audrey T.), 26 Neb. Ct. App. 822 (Neb. Ct. App. 2019).
“Therefore, we believe the stated purposes of the ICWA are best served by allowing parents to raise, in their direct appeal from a termination of parental rights, the issue of the State's failure to notify the child's Indian tribe of the termination of parental rights proceedings…”
— Neb. Rev. Stat. § 43-1505(2) — 1 case
In re Guardianship of Eliza W., 304 Neb. 995 (Neb. 2020).
“On that form document, Tara asserted that she was entitled to appointed counsel under a provision of NICWA, Neb. Rev. Stat. § 43-1505 (2) (Reissue 2016), that she had no forms of income, - 998 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF…”
— Neb. Rev. Stat. § 43-1505(4) — 32 cases
In Re Interest of Walter W., 744 N.W.2d 55 (Neb. 2008).
“We also conclude that the State met its burden in proving the “serious emotional or physical damage” element and that terminating Martina’s parental rights is in Walter’s best interests.”
Linda H. v. Tyler R. (In Re Micah H.), 301 Neb. 437 (Neb. 2018).
“Linda and Daniel also served a copy of the complaint on the president of the Oglala Sioux Tribe, as required by § 43-1505(1), and the tribe declined to intervene.”
In Re Interest of Dakota L., 712 N.W.2d 583 (Neb. Ct. App. 2006).
“Specifically, the amended petition alleged that the five children were enrolled or were eligible for enrollment in the Omaha Tribe and that pursuant to Neb. Rev. Stat. § 43-1505 (4) (Reissue 2004), active efforts had been made to provide remedial services and rehabilitative…”
State v. Shannon P., 709 N.W.2d 676 (Neb. Ct. App. 2006).
“The petition stated that it was error for the court to adjudicate the children by a “preponderance of the evidence,” rather than by “ ‘clear and convincing evidence’ ” (emphasis omitted) as required under Neb. Rev. Stat. § 43-1505 (5) (Reissue 2004).”
State v. Regina S., 664 N.W.2d 470 (Neb. Ct. App. 2003).
“See § 43-1505. Section 43-1505(4), addressing termination of parental rights in cases involving an Indian child, provides as follows: Any party seeking to effect .”
— Neb. Rev. Stat. § 43-1505(5) — 8 cases
In Re Interest of Dakota L., 712 N.W.2d 583 (Neb. Ct. App. 2006).
“Specifically, the amended petition alleged that the five children were enrolled or were eligible for enrollment in the Omaha Tribe and that pursuant to Neb. Rev. Stat. § 43-1505 (4) (Reissue 2004), active efforts had been made to provide remedial services and rehabilitative…”
In re Guardianship of Eliza W., 304 Neb. 995 (Neb. 2020).
“On that form document, Tara asserted that she was entitled to appointed counsel under a provision of NICWA, Neb. Rev. Stat. § 43-1505 (2) (Reissue 2016), that she had no forms of income, - 998 - Nebraska Supreme Court Advance Sheets 304 Nebraska Reports IN RE GUARDIANSHIP OF…”
In Interest of Shayla H., 764 N.W.2d 119 (Neb. Ct. App. 2009).
“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 involuntary proceedings when the court knows or has reason to know that an Indian child is involved.”
— Neb. Rev. Stat. § 43-1505(6) — 29 cases
In Re Interest of Walter W., 744 N.W.2d 55 (Neb. 2008).
“We also conclude that the State met its burden in proving the “serious emotional or physical damage” element and that terminating Martina’s parental rights is in Walter’s best interests.”
State v. Nebrasks (In Re Interest Audrey T.), 26 Neb. Ct. App. 822 (Neb. Ct. App. 2019).
“Therefore, we believe the stated purposes of the ICWA are best served by allowing parents to raise, in their direct appeal from a termination of parental rights, the issue of the State's failure to notify the child's Indian tribe of the termination of parental rights proceedings…”
In Re Interest of Louis S., 774 N.W.2d 416 (Neb. Ct. App. 2009).
“Section 43-1505 requires in part: (4) Any party seeking to effect a foster care placement 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…”
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