In Re Interest of Bird Head

331 N.W.2d 785, 213 Neb. 741, 1983 Neb. LEXIS 1020
CourtNebraska Supreme Court
DecidedMarch 18, 1983
Docket82-197
StatusPublished
Cited by40 cases

This text of 331 N.W.2d 785 (In Re Interest of Bird Head) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Interest of Bird Head, 331 N.W.2d 785, 213 Neb. 741, 1983 Neb. LEXIS 1020 (Neb. 1983).

Opinions

McCown, J.

This is a proceeding to declare an Indian infant a. neglected and dependent child and to terminate parental rights. The county court of Sheridan County, acting in its capacity as a juvenile court, found Carmelita Madonna Bird Head to be a neglected and dependent child, terminated parental rights, placed custody of the child in the Nebraska Department of Public Welfare to be placed for adoption, and directed that temporary custody of the child should be continued in the foster parents previously designated by the Department of Public Welfare. Alva [742]*742Bird Head Rattling Chase, the child’s maternal aunt, appealed to the District Court, which affirmed the judgment of the county court. The aunt has again appealed.

Carmelita Madonna Bird Head was born on September 3, 1979. Following the birth of the child her mother, Martha Bird Head, and the child resided with the mother’s uncle, Thomas Plenty Wounds in Gordon, Nebraska. The residence periodically also served as a temporary residence for several other individuals, including Alva Bird Head Rattling Chase, a sister of Martha Bird Head. On many occasions, and for extensive periods of time before July 31, 1980, her mother had left the child in the care of Patricia and Delmer Dunnick of Rushville, Nebraska. Martha Bird Head died on July 31, 1980, in Denver, Colorado, shortly after being taken to the hospital.

Between July 31, 1980, and August 12, 1980, the child was in the care of her aunt, Alva Bird Head Rattling Chase, or Patricia and Delmer Dunnick. The child had been left at the residence of Thomas Plenty Wounds in Gordon, Nebraska, when her mother went to the hospital. On August 12, 1980, the child was taken into custody by the sheriff and a welfare worker. The sheriff delivered the child into the temporary custody of the Sheridan County Welfare Department, which placed her in the temporary care of Patricia and Delmer Dunnick.

On August 15, 1980, a petition was filed seeking to have the child declared to be neglected and dependent as described in Neb. Rev. Stat. § 43-202(1) (Reissue 1978), and seeking the termination of the parental rights of any natural father.

Two men listed by the mother on two different ADC applications as the father of the child were notified of the proceeding, neither of whom appeared. The former husband of Martha Bird Head, Fred Tail, was also notified. He appeared through counsel but later withdrew. Notice was also given to [743]*743the tribal prosecutor of the Oglala Sioux Tribe in Pine Ridge, South Dakota.

The appellant aunt, Alva Bird Head Rattling Chase, did not personally appear at the first hearing on September 3, 1980, but did appear by counsel. Following hearing, the court ordered that the Oglala Sioux Tribal Court be given notice of the proceeding, appointed a guardian ad litem for the minor child, continued temporary custody and care of the child in Patricia and Delmer Dunnick, and continued the proceeding.

On September 23, 1980, an adjudication hearing was held. The appellant was present and represented by counsel. Patricia and Delmer Dunnick were present and represented by counsel and the guardian ad litem for the child was also present. A motion requesting the court to transfer jurisdiction to the Oglala Sioux Tribal Court was made on behalf of Fred Tail by an individual who had no tribal authority to make such a motion.

The court noted that notice of the proceedings had been served on the tribal prosecutor of the Oglala Sioux Tribe and that the prosecutor had not appeared in the proceedings or authorized anyone else to appear on his behalf, and no appearance had been made on behalf of the tribe, the tribal juvenile court, the tribal prosecutor’s office, or any other party who might be authorized to appear on behalf of the tribe, and that consideration of any such motion was premature.

. The court then proceeded with the adjudication hearing and found that Carmelita Bird Head was a child described in § 43-202(1) and (2) and took under advisement the termination of parental rights. The court further found that the adjudication hearing did not preclude interested parties from addressing the issue of the court’s jurisdiction pursuant to the Indian Child Welfare Act of 1978. The court therefore ordered the matter continued until October 31, 1980, for a hearing on motions which might be filed per[744]*744taining to whether the matter should be transferred to the Oglala Sioux Tribal Court for further proceedings. The court directed that any such motions should be filed on or before October 16, 1980, and briefs in support or in opposition on or before October 26, 1980.

On October 18, 1980, a petition for transfer of the proceedings to the Oglala Sioux juvenile court was filed, signed by a judge of the tribal court. Objection was made on the ground of late filing. On October 30, 1980, the court accepted the filing and continued the hearing upon the petition to transfer proceedings to November 25, 1980.

On November 25, 1980, hearing on the petition to transfer jurisdiction to the tribal court was held as scheduled. No representative of the Oglala Sioux Tribe or of the tribal court was present to argue the motion or present evidence. The guardian ad litem and Patricia and Delmer Dunnick had filed objections to the petition.

Hearing was held and argument had. There was no evidence that the petition for transfer had been authorized by the tribe. The court apparently determined that the petition for transfer was unauthorized by the tribe or had been declined by the tribal court. The court found that the petition was deemed to have been abandoned and good cause had been shown by the evidence why the transfer should not be ordered. The court therefore denied the transfer and set the date for dispositional hearing. Neither the Oglala Sioux Tribe nor the tribal court appealed from the order, and neither has taken any further part in these proceedings.

A dispositional hearing was held on January 9, 1981. Evidence was submitted and the court found that the mother of the child was deceased and that the father of the child was unknown and had abandoned the child for more than 6 months, and that the child should be placed for adoption. The court therefore terminated the parental rights of any po[745]*745tential father and ordered custody of the child placed with the Nebraska Department of Public Welfare to be placed for adoption by that agency, and continued temporary custody in Patricia and Delmer Dunnick pending further disposition by the Department of Public Welfare.

Alva Bird Head Rattling Chase appealed to the District Court. After extensive delays involving the right to proceed in forma pauperis and problems of preparation and completion of the bill of exceptions from the county court, the District Court received the bill of exceptions and some additional documentary evidence and took the case under advisement on February 2, 1982.

On February 16, 1982, the District Court found that the appellant’s history of criminal conduct, her use of alcohol and resulting intoxication, and the apparent abuse of the child while in her care established that she was unfit to have custody. The District Court also found that the tribe and the tribal court had abandoned the motion to transfer jurisdiction and that the appellant was not an Indian custodian under the Indian Child Welfare Act.

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Bluebook (online)
331 N.W.2d 785, 213 Neb. 741, 1983 Neb. LEXIS 1020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-interest-of-bird-head-neb-1983.