43-1503. Terms, defined.
For purposes of the Nebraska Indian Child Welfare Act, except as may be specifically provided otherwise:
(1) Active efforts shall mean and include, but not be limited to:
(a) A concerted level of casework, both prior to and after the removal of an Indian child, exceeding the level that is required under reasonable efforts to preserve and reunify the family described in section 43-283.01 in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child's tribe or tribes to the extent possible under the circumstances;
(b) A request to the Indian child's tribe or tribes and extended family known to the department or the state to convene traditional and customary support and services;
(c) Actively engaging, assisting, and monitoring the family's access to and progress in culturally appropriate and available resources of the Indian child's extended family members, tribal service area, Indian tribe or tribes, and individual Indian caregivers;
(d) Identification of and provision of information to the Indian child's extended family members known to the department or the state concerning appropriate community, state, and federal resources that may be able to offer housing, financial, and transportation assistance and actively assisting the family in accessing such community, state, and federal resources;
(e) Identification of and attempts to engage tribally designated Nebraska Indian Child Welfare Act representatives;
(f) Consultation with extended family members known to the department or the state, or a tribally designated Nebraska Indian Child Welfare Act representative if an extended family member cannot be located, to identify family or tribal support services that could be provided by extended family members or other tribal members if extended family members cannot be located;
(g) Exhaustion of all available tribally appropriate family preservation alternatives; and
(h) When the department or the state is involved in a proceeding under the act, the department or the state shall provide a written report of its attempt to provide active efforts to the court at every hearing involving an Indian child. This report shall be sent to the Indian child's tribe or tribes within three days after being filed with the court and shall be deemed to be admissible evidence of active efforts in proceedings conducted under the act;
(2) Best interests of the Indian child shall include:
(a) Using practices in compliance with the federal Indian Child Welfare Act, the Nebraska Indian Child Welfare Act, and other applicable laws that are designed to prevent the Indian child's voluntary or involuntary out-of-home placement; and
(b) Whenever an out-of-home placement is necessary, placing the child, to the greatest extent possible, in a foster home, adoptive placement, or other type of custodial placement that reflects the unique values of the Indian child's tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the Indian child's tribe or tribes and tribal community;
(3) Child custody proceeding shall mean and include:
(a) Foster care placement which shall mean any action removing an Indian child from his or her parent or Indian custodian for temporary or emergency placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;
(b) Termination of parental rights which shall mean any action resulting in the termination of the parent-child relationship;
(c) Preadoptive placement which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement;
(d) Adoptive placement which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption; and
(e) Voluntary foster care placement which shall mean a non-court-involved proceeding in which the department or the state is facilitating a voluntary foster care placement or in-home services to families at risk of entering the foster care system. An Indian child, parent, or tribe involved in a voluntary foster care placement shall only be provided protections as provided in subsection (4) of section 43-1505 and sections 43-1506 and 43-1508.
Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents;
(4) The department or the state shall mean the applicable state social services entity that is involved with the provision of services to Indian children, specifically the Department of Health and Human Services and the Office of Probation Administration in certain cases;
(5) Extended family member shall be as defined by the law or custom of the Indian child's primary tribe or, in the absence of such laws or customs of the primary tribe, the law or custom of the Indian child's other tribes or, in the absence of such law or custom, shall mean a person who has reached the age of eighteen and who is the Indian child's parent, grandparent, aunt or uncle, clan member, band member, sibling, brother-in-law or sister-in-law, niece or nephew, cousin, or stepparent;
(6) Federal Indian Child Welfare Act shall mean the federal Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et seq.;
(7) Indian shall mean any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a regional corporation defined in section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1606;
(8) Indian child shall mean any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe;
(9) Indian child's primary tribe shall mean, in the case of an Indian child that is a member or eligible for membership in multiple tribes, the tribe determined by the procedure enumerated in subsection (4) of section 43-1504;
(10) Indian child's tribe or tribes shall mean the Indian tribe or tribes in which an Indian child is a member or eligible for membership;
(11) Indian custodian shall mean any Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control has been transferred by the parent of such child;
(12) Indian organization shall mean any group, association, partnership, limited liability company, corporation, or other legal entity owned or controlled by Indians or a majority of whose members are Indians;
(13) Indian tribe shall mean any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the secretary because of their status as Indians, including any Alaska Native village as defined in section 3(c) of the Alaska Native Claims Settlement Act, as amended, 43 U.S.C. 1602(c);
(14) Parent means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father when paternity has not been acknowledged or established;
(15) Qualified expert witness shall mean one of the following persons, in descending priority order although a court may assess the credibility of individual witnesses:
(a) A member of the Indian child's tribe or tribes who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family and childrearing practices;
(b) A member of another tribe who is recognized to be a qualified expert witness by the Indian child's tribe or tribes based on his or her knowledge of the delivery of child and family services to Indians and the Indian child's tribe or tribes;
(c) A lay expert witness that possesses substantial experience in the delivery of child and family services to Indians and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe or tribes;
(d) A professional person having substantial education and experience in the area of his or her specialty who can demonstrate knowledge of the prevailing social and cultural standards and childrearing practices within the Indian child's tribe or tribes; or
(e) Any other professional person having substantial education in the area of his or her specialty;
(16) Reservation shall mean Indian country as defined in 18 U.S.C. 1151 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation or a federally designated or established service area which means a geographic area designated by the United States where federal services and benefits furnished to Indians and Indian tribes are provided or which is otherwise designated to constitute an area on or near a reservation;
(17) Secretary shall mean the Secretary of the United States Department of the Interior;
(18) Tribal court shall mean a court with jurisdiction over child custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings; and
(19) Tribal service area shall mean a geographic area, as defined by the applicable Indian tribe or tribes, in which tribal services and programs are provided to Indians.
Source
Annotations
A guardianship proceeding qualified as a "foster care placement" as defined by the federal Indian Child Welfare Act of 1978 and subdivision (3)(a) of this section, where the proceeding was initiated by a grandparent of an Indian child, and the object of the proceeding was to remove custody from the Indian child's parent and place custody with the Indian child's grandparent who would serve as guardian. In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (2020).
There is no precise formula for active efforts; the active efforts standard requires a case-by-case analysis and should be judged by the individual circumstances. In re Adoption of Micah H., 301 Neb. 437, 918 N.W.2d 834 (2018).
At any point in an involuntary juvenile proceeding involving Indian children at which a party is required to demonstrate its efforts to reunify or prevent the breakup of the family, the active efforts standard of the Indian Child Welfare Act of 1978 and the Nebraska Indian Child Welfare Act applies in place of the reasonable efforts standard applicable in cases involving non-Indian children. In re Interest of Shayla H. et al., 289 Neb. 473, 855 N.W.2d 774 (2014).
The provisions of the Nebraska Indian Child Welfare Act apply prospectively from the date Indian child status is established on the record. In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).
The lower standard of proof under subsection (3) of section 43-279.01 for the termination of parental rights to non-Indian children, as opposed to the higher standard of proof under the Nebraska Indian Child Welfare Act does not violate the equal protection rights of parents of non-Indian children. In re Interest of Phoenix L. et al., 270 Neb. 870, 708 N.W.2d 786 (2006).
Pursuant to subsection (4) of this section, a party to a proceeding who seeks to invoke a provision of the Indian Child Welfare Act has the burden to show that the act applies in the proceedings; for application of the act to proceedings for the termination of parental rights, the proceedings must involve an Indian child within the purview of the act. In re Interest of J.L.M. et al., 234 Neb. 381, 451 N.W.2d 377 (1990).