In re Interest of Phoenix L.

Caselaw Number
270 Neb. 870
Filed On


SUMMARY: It is not a violation of due process to have a different burden of proof for the termination of the parental rights to an Indian child than the burden of proof required to terminate parental rights to a non-Indian child, because the “parents of non-Indian children are not similarly situated to the parents of Indian children.”

A mother appealed from the juvenile court’s order terminating her parental rights with respect to her three children. The mother claimed that the difference in standards of proof required for termination of parental rights with respect to a non-Indian child, as compared to an Indian child, violated her right to equal protection. She also claimed that the court improperly terminated her parental rights.

The burden of proof required to terminate parental rights to a non Indian-child is the “clear and convincing” evidence standard, while the burden of proof required to terminate parental rights to an Indian children is “beyond a reasonable doubt.” Thus, the burden of proof required to terminate parental rights to an Indian child is higher than the burden with respect to non-Indian children. The court rejected the equal protection challenge stating that “the parents of non-Indian children are not similarly situated to the parents of Indian children.” Equal protection simply keeps “governmental decisionmakers” from treating similarly situated groups differently. Since non-Indian parents and Indian parents are not similarly situated, the mother does not have an equal protection claim. The statutes’ different treatment of non-Indian parents and Indian parents was based on the “historical sovereignty of Indian tribes,” and not racial discrimination as the mother claimed.

The court also upheld the juvenile court’s order terminating the mother’s rights. The court concluded that the juvenile court had the jurisdiction to terminate the mother’s rights. The fact that the father was appealing a separate order terminating his rights, was not sufficient to prevent the juvenile court’s termination of the mother’s rights, because the father’s case is separate from the mother’s case and based upon separate facts.Further, the juvenile court properly adjudicated Phoenix because Phoenix’s siblings had been previously adjudicated and the mother had failed to remedy the conditions which caused these prior adjudications. Termination was appropriate because Phoenix’s siblings were in out of home placement for at least 15 of the most recent 22 months, and the mother “substantially and continuously or repeatedly neglected and refused to give Phoenix and her siblings necessary parental care and protection.” The court found that in the 4 years the mother had to demonstrate that she could take care of her children, she continuously failed. Termination was also in the children’s best interests because their mother was “unwilling or unable to rehabilitate herself” and there was evidence that the foster parents were willing to adopt and provide permanency.