From yesterday's decision by the Nebraska Court of Appeals in Ewing v. Evans, by Judge Francie Riedmann, joined by Judges Riko Bishop and Lawrence Welch:
Joseph Evans appeals the order of the Lancaster County District Court that overruled his complaint to modify a custody order and parenting plan. We conclude that Evans failed to show a material change in circumstances to warrant modification. Furthermore, we find the district court did not abuse its discretion in enjoining Evans from taking the child into sweat lodges ….
Evans and Ewing are the biological parents of a son born in May 2013. The parties were never married, and their relationship ended in February 2014. On January 23, 2015, Evans was in a severe automobile accident in which he collided with a wall at 75 miles per hour. Among his many injuries, he suffered a broken back, a traumatic brain injury, and bleeding in his brain.
In March 2015, the district court issued a custody order … regarding the parties' son. The order was based on a joint stipulation filed by the parties in which Ewing received sole physical and legal custody of their son and Evans received parenting time set out under a parenting plan….
In 2021, the trial court ordered Evans not to take his son to a sweat lodge, and the Court of Appeals upheld the injunction. There's a lot going on in the opinion, but I'll focus on the sweat lodge issue:
Evans explained that the first 4 years of his life, his grandmother raised him "in the native way." But Evans' mother wanted to raise him herself, so they moved from South Dakota. Evans did not reengage with his Native American heritage until after the 2015 accident. He is not an enrolled member of any tribe, but participates in the Lakota Nation ceremonies, which include sweat lodges, sun dances, and other ceremonies, in South Dakota. He explained that he began reengaging in the ceremonies to heal himself in ways in which traditional medicine "wasn't working" and that he needed to clear that "negative spiritual energy in — in that [sweat] lodge."
Evans takes all of his children to the sweat lodge, including his 3-year-old daughter. A sweat lodge consists of a hole, which holds stones that have been warmed by fire, inside layers of tarps and blankets. Evans' best estimate of the temperature inside the sweat lodge is 100 degrees Fahrenheit at most, but he has previously measured a sweat lodge at 101.2 degrees. The amount of time inside the sweat lodge with the door closed is usually 45 minutes, although the amount of time at the sweat lodge is usually 1½ hours. Evans acknowledged that too much heat could be harmful but explained that his prior inability to remain in a sweat lodge "to finish" is related more to his inexperience on how to control his breathing and panic. He described his need to leave the sweat lodge and lie on the ground was "not only just to get the cold air but also to rest my back. Cause if you have fear, you tense up. You tense up you have a bad back."
Evans testified he lives an "Indigenous life." Evans treats the "Indigenous life" as a family affair, so he wants his son to be involved with his activities. Evans defines an "Indigenous life" as "spirituality," a way of life more than a religion. Evans fears that by not allowing his son in the sweat lodge, its participants will not be able to include him in prayers. Additionally, the child will not be able to hear stories of his ancestors, because the elders with such wisdom tell those stories only while in the sweat lodge.
Susan Roaneagle, who is a member of the Oglala Lakota Nation, explained that a person does not need to be a tribal member to participate in a sweat lodge ceremony and that it was common for people of all religions to participate. There is one door in the sweat lodge, and participants are free to leave during the ceremony. She described sweat lodge ceremonies as a supplement to religion.
Erin, Evans' older daughter, and Roaneagle testified about observing the child in the sweat lodge and not noticing him to be in any kind of distress. Evans' older daughter testified when she was in the sweat lodge with the parties' son, he appeared to be enjoying himself, insofar as he would either sing songs or sleep. Roaneagle recalled that the child appeared to enjoy himself in the sweat lodge and would pray, smile, and sing. She also recalled that after the order barring the child from sweat lodges, he would sit outside with the other children and adults.
Evans testified he took his son to sweat lodges in hopes it would help with his conduct disorder. He believes the sweat lodge teaches self-control. He explained, "Plus if you imagine a hot and dark place and you learn how to control yourself and pray, you'll then learn a lot more body self[-]control." He hoped his son would grow from the experience of overcoming the heat and darkness and learn to listen and be patient and still. He believes his son needs spiritual help.
Ewing countered Evans' testimony by discussing her concerns with her son's health in a sweat lodge. She requested the court maintain its bar on the child's participation in sweat lodges. She believes it is unsafe for him. He takes Clonidine for his [Oppositional Defiant Disorder], which affects his blood pressure. Neither Evans nor Ewing has checked with the child's doctor to ensure the sweat lodge would not have a negative interaction with the Clonidine.
The paramount consideration in all cases involving the custody or visitation of a child is the best interests of that child. Thus, when a court finds that particular religious practices pose an immediate and substantial threat to a child's temporal well-being, a court may fashion an order aimed at protecting the child from that threat. In doing so, a court must narrowly tailor its order, so as to result in the least possible intrusion upon the constitutionally protected interests of the parent.
Although there was testimony regarding prayer and spirituality related to the sweat lodge, based upon the record before us, we cannot determine that Evans' participation in the sweat lodge constitutes a religious practice. Evans is not an enrolled member of any tribe. He testified that he lives an "Indigenous life," which he defined as a "way of life." He wanted his son to experience the sweat lodge not only to learn more about Native American culture, but because he believed it taught self-control. By overcoming heat and darkness, he believed, his son would learn to listen and to be patient and still.
Testimony from other witnesses further negates the sweat lodge as a religious practice in this case. Roaneagle testified that people from all religions participate and need not be tribal members. Erin denied that religion was being practiced at the sweat lodge; rather, she described it as "part of the Native American culture." Having failed to establish that participation in the sweat lodge is a religious practice, we review the district court's order through a best interests analysis.
Here, the district court found that restricting the child's ability to use a sweat lodge was in his best interests. It heard conflicting testimony from each parent. Ewing testified that the sweat lodges posed a danger to the child. Evans testified that the sweat lodges could help the child spiritually, as well as help with his behavior issues. Erin, Evans' older daughter, and Roaneagle all testified that the child did not seem to be in distress when he participated in the sweat lodges. But neither parent confirmed with a healthcare professional whether the sweat lodges could adversely interact with the child's medication.
Although we review the record de novo for an abuse of discretion, appellate courts do not reweigh the credibility attributed to witnesses. The district court appears to have found persuasive Ewing's testimony that the sweat lodge is unsafe, as well as Evans' testimony that he has needed to exit a sweat lodge prior to the completion of the ceremony. Both [the son's therapist] and Ewing testified about the importance of routine for the child and how much transition can negatively impact the child's behaviors. The district court ultimately found Ewing's statements regarding the difficulties in maintaining this routine with the child after his attending a sweat lodge were persuasive.
Because the district court found Ewing's testimony persuasive that the sweat lodges posed a threat to the child's well-being, it determined it was in the child's best interests to restrict his ability to enter the sweat lodge. We find no abuse of discretion in that decision….
Tara L. Gardner-Williams and Joel Bacon, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., represent Ewing.
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