In re Tavian B.

The juvenile court of Lancaster County, Nebraska, found that Tavian B. lacked proper parental care. The state (plaintiff) moved to terminate the parental rights of Tavian’s mother and father (defendants). The father moved to transfer jurisdiction to the Oglala Sioux Tribal Juvenile Court, which was recognized under the Indian Child Welfare Act (ICWA) as a tribal court. Under ICWA, a child’s parent, custodian, or tribe could petition the state court that was overseeing proceedings for termination of parental rights or foster-care placement from state court to tribal court. ICWA required transfer unless good cause was shown for the state court to retain jurisdiction. The Bureau of Indian Affairs (BIA) promulgated guidelines used when federal agencies and courts needed clarification on the interpretation of ICWA. At the time that the juvenile court was considering the father’s transfer motion, the BIA guidelines stated that good cause to retain jurisdiction might exist if the proceedings had reached an advanced stage of litigation. The state argued that because the proceedings were at an advanced stage when the father filed the transfer motion, there was good cause for the state court to retain jurisdiction. Before the transfer hearing, the state withdrew its motion to terminate parental rights. The juvenile court considered the filing of a motion to terminate parental rights to have marked the beginning of an advanced stage of litigation and denied the father’s motion. The father appealed. While the appeal was pending, the BIA guidelines were amended to state that a late stage of litigation should not be a factor in weighing a transfer motion.