ICWA, right to counsel apply to private guardianships, says Nebraska high court

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02/10/2020, Litigation, Abuse/Neglect/Dependency - Accused Parents

In In re Eliza W., 304 Neb. 995 (2020), the Supreme Court of Nebraska held that the provisions of the Indian Child Welfare Act apply to private child guardianship disputes (and not just removals by the state), relying on the definition of "foster care disputes" in 25 U.S.C. § 1903(1)(i) as including "any action removing an Indian child from its parent or Indian custodian for temporary 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." 


The court then suggested that ICWA would entitle an indigent parent to appointed counsel, since 25 U.S.C. § 1912(b) provides that "[i]n 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."  However, because the court ruled that the materal grandmother in the case had failed to meet her burden of proof regarding the need for the guardianship, the court ultimately did not have to address the denial of counsel.

Appointment of Counsel: categorical Qualified: yes