A legal setback in Elise Mallory’s child custody dispute with the state of Nebraska last February nearly drove the young Omaha Native woman from her alcohol treatment program.
Just a few months earlier, Mallory had celebrated a state supreme court decision that had given her hope of seeing her two daughters soon. The Nebraska Supreme Court had reversed a lower court’s ruling giving custody to the state.
Now, as Mallory worked through treatment at a hospital in Winnebago, she learned the Lancaster County Attorney’s Office would appeal to the U.S. Supreme Court.
“I almost walked out of treatment,” she said. “It was very hard for me.”
But the 24-year-old Lincoln mother didn't give up.
And on Oct. 7, in her eighth month of sobriety, Mallory celebrated what will be the ultimate victory. The U.S. Supreme Court denied the county attorney’s writ of certiorari, ending the state’s attempts to retain custody.
In doing so, the high court reaffirmed the Nebraska Supreme Court’s earlier decision: the Nebraska Court of Appeals erred in saying the tribe took too long to become involved in the kids' custody cases.
The majority on the state supreme court had ruled the Indian Child Welfare Act allows tribes to seek custody of a Native child either when that child is taken from a Native home or later when a state seeks to terminate a Native parents’ rights.
In a dissenting opinion, Chief Justice Michael Heavican said allowing the tribe to take custody so late in the proceeding was not in the children’s best interest.
The Omaha Tribe had sought custody of the girls nearly two years after the state had taken them.
The ruling has triggered alarms in the juvenile court system, with some fearing it could significantly increase the amount of time tribes have to intervene in child custody cases. And that, in turn, would increase the length of court proceedings involving Native children as well as the time Native children spend in foster care.
Mallory’s children have spent most of their lives in foster care.
The case began in May 2009, when state child welfare workers removed Mallory’s daughters from her home after she left them with a friend and briefly departed Lincoln.
At the time, her oldest daughter was a state ward, and Mallory’s friend didn’t have state permission to care for the girl.
Her daughters, born in December 2008 and June 2007, are now ages 4 and 6 and have lived with the same Lincoln foster family nearly the entire time since May 2009.
Alicia Henderson, who represented the county attorney’s office in the case, said she hopes other tribes aren’t emboldened by the state supreme court’s decision to wait until late in a court proceeding to attempt to seek custody of Native children.
“I hope that the tribal courts see this case as an illustration of why they should request transfer early on in the case so the children's need for safety and stability and attachment can be maximized,” she said.
Mallory’s victory was also a defeat for the foster parents.
Matthew Munderloh, an attorney representing Mary Kneifl and Randy Nelson, the foster parents who’ve cared for Mallory’s daughters, said the couple was devastated by the decision and now fear the Omaha Tribal Court will remove the girls from their care.
“They’re heartbroken over the reality of that probably happening,” he said.
He’s heard nothing from the tribe about whether it will remove the children, and an official who oversees the tribe’s child protective services division did not return a call from the Journal Star seeking comment.
Sherri Eveleth, the state’s Native child welfare program specialist, said she agreed with the state supreme court’s decision to grant custody of the children to the tribe.
“I thought it supported the letter and intent of the Indian Child Welfare Act,” she said. “I think it will be good for Indian child welfare in Nebraska.”
She said the decision allows tribes to change their minds in deciding whether to attempt to seek custody of Native children later during juvenile court proceedings when a state seeks to terminate a Native parent’s rights. She said a tribe may not necessarily oppose efforts to remove a Native parent’s children but could view termination of that parent’s rights as another matter.
Indeed, an Omaha tribal official who testified before a juvenile court judge in 2011 said the tribe wouldn’t terminate Mallory’s parental rights because termination of parental rights goes against the tribe’s core beliefs. The tribal official said she would recommend that Mallory’s daughters be allowed to remain in Kneifl’s and Nelson’s home but that a tribal court would ultimately decide what to do with the girls.
Now, Mallory is waiting for her tribe to take custody of her daughters and praying she can see them again soon.
She said she last saw her daughters in summer 2012. She and the girls watched a movie, played with toys and then stepped outside to admire the trees and grasshoppers.
“I’m 24, and I feel old,” she said. “I’m ready for my kids to come home.”