In re D.S.

• Decision Date: 05 October 2011
• Docket Number: No. 11–0954.,11–0954.
• Citation: 806 N.W.2d 458
• Parties: In the Interest of D.S., Minor Child,D.S., Father, Appellant,J.M., Mother, Appellant.
• Court: Iowa Court of Appeals

806 N.W.2d 458

In the Interest of D.S., Minor Child,D.S., Father, Appellant,J.M., Mother, Appellant.

No. 11–0954.

Court of Appeals of Iowa.

Oct. 5, 2011.

Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant father.

Jodee R. Dietzenbach of the Law Offices of Thad J. Murphy, P.C., Dubuque, for appellant mother.

Thomas J. Miller, Attorney General, Kathrine Miller–Todd, Attorney General, Ralph Potter, County Attorney, and Jean Becker, Assistant County Attorney, for appellee State.MaryBeth Fleming, Dubuque, for intervenors.Mary Kelley, Dubuque, for minor child.

Considered by VOGEL, P.J., and POTTERFIELD and DANILSON, JJ.

DANILSON, J.

A father and mother appeal from the order terminating their parental rights to their one-year-old son. They contend the juvenile court erred in terminating parental rights without the testimony of a qualified expert witness and that the State failed to prove active efforts were made for reunification. The father also contends the juvenile court erred in failing to address placement until after the termination hearing. The mother also contends termination is not in the child's best interests. Considering the parents' lack of involvement with the child and their periods of incarceration during these proceedings, we find termination of parental rights in the best interests of the child. The parents are also unable to safely parent the child and provide for his extensive medical needs. The child's permanency cannot be further delayed. The Iowa Indian Child Welfare Act (ICWA) requirements under Iowa Code chapter 232B are satisfied in this case. For these reasons, we affirm the decision of the juvenile court.

I. Background Facts and Proceedings.

This family came to the attention of the Iowa Department of Human Services (DHS) shortly after the child's birth on January 15, 2010. He was born prematurely and with severe medical issues.¹ Shortly after his birth, he was transferred from Finley Hospital in Dubuque to the University of Iowa Hospitals in Iowa City. Medical staff was unable to make contact with the parents and the parents did not call to check on the child. The mother later admitted that she received no prenatal care, and smoked cigarettes and consumed alcohol throughout the pregnancy.

On January 21, 2010, the child was transferred back to Finley Hospital in Dubuque. On January 23, 2010, the parents visited the child for fifteen minutes. The mother was offered transportation and a room at Finley Hospital because she was unemployed and lived approximately fourteen blocks from the hospital, but she declined. The child was transferred back to University of Iowa Hospitals due to additional health concerns. Again, the mother was offered transportation, lodging, and food to stay in Iowa City with the child, which she declined. Medical providers were not able to contact the parents to receive consent for treatment for the child.

On January 25, 2010, the juvenile court entered an ex parte removal order due to concerns about abandonment by the parents. The child was placed in the custody of DHS, for appropriate foster care placement once discharged from the hospital.

The mother is a member of the Ho–Chunk Nation Indian tribe. The tribe was notified immediately upon the entry of the emergency removal order. The tribe subsequently filed a motion to intervene, which was granted by the court.

A removal hearing was held on February 3, 2010. The mother did not appear. The father appeared and objected to the continued removal of the child. The father had previously served time in prison for burglary and armed robbery. He testified he had raised another child, had completed parenting classes in prison, and was prepared to take custody of the child. Tribal counsel appeared and opined that custody of the child should remain with DHS for foster family placement upon the child's release from the hospital. A foster family had been identified and the foster parents had visited the child a number of times in the hospital. The foster mother, a pediatric nurse, was aware of the child's health concerns.

The child was adjudicated in need of assistance on March 29, 2010, following an adjudication/disposition hearing. Tribal counsel appeared at the hearing, as well as the mother and father, both represented by counsel. The court found the parents had become more cooperative with services but continued to lack a full understanding of the child's significant health issues and needs. The court observed that DHS had been in continuous contact with the tribe regarding placement options and services and active efforts were being made to provide remedial and rehabilitative services designed to prevent the breakup of the Indian family but these efforts had not been successful due to the parents' slow progress. Stephanie Lozano, a social worker and qualified expert witness for the tribe, testified at the hearing. Lozano opined that custody of the child by the parents or Indian custodian would likely result in serious emotional or physical damage to the child and the current foster family placement was appropriate, particularly due to the child's medical needs. Placement of the child was continued with the foster family, with a goal of family reunification.

Following a June 25, 2010 review hearing, the court observed the mother was beginning to engage in services. She had become more involved with the child and was attending his doctor appointments. Visitation became partially supervised, and the mother began to display she could meet the child's basic needs. However, there continued to be concerns about the mother's commitment to the father, due to his continued drug use and incarceration. The father tested positive for THC in March and April and became incarcerated in Illinois in May as a result of a probation violation.

Unfortunately, the mother's status began deteriorating by the permanency hearing on September 25, 2010. The court observed the mother was incarcerated in Wisconsin and facing a two-year sentence. DHS noted that in July 2010, the mother was intoxicated when the child arrived for a visit, and the visit was cancelled. DHS later learned the mother had been arrested in Wisconsin in August 2010, where she had five prior operating-while-intoxicated convictions and was wanted for probation violations. The father was still incarcerated, but his counsel indicated he had an anticipated release date in November 2010. The court observed that the child continued to have medical needs, but was thriving in the care of the foster family. The foster family indicated they would be willing to adopt the child. Tribal counsel stated the tribe would only support termination of parental rights if the child was placed in an Indian home. DHS located such a home in Wisconsin, where a cousin of the child had also been placed. The court ordered DHS to conduct a home study on the home in Wisconsin.

At the permanency hearing on December 16, 2010, the court observed the home study was currently being conducted in Wisconsin. The mother remained incarcerated, but the court noted she intended to move to Wisconsin once released from prison. The father also intended to move to Wisconsin in the near future. The court ordered DHS to receive the home study, review it with the parents, and if feasible, begin a slow transition of the child to Wisconsin. Due to the child's need for permanency, the court also directed the State to initiate termination of parental rights, which would also be addressed at the next hearing, scheduled for February 17, 2011.

The court reset the February hearing for March 23, 2011, granting the parents' motions for extension of time despite a “serious concern that an extension of time would not be in the best interests of the child.” The court advised that the scope of the hearing would pertain only to the State's petition for termination of parental rights, the grounds alleged therein, and the evidence required pursuant to Iowa Code section 232B.6(6)(a) (2009) of the Indian Child Welfare Act.

On February 24, 2011, the tribe filed a motion for placement in accordance with ICWA. In the motion, the tribe stated its preference that the child be placed with the proposed foster family in Wisconsin. The tribe stated such placement “would allow D.S. to be placed with one of his Ho–Chuck relatives” and “would permit the mother and father to continue to have reasonable contact with the child in the future.” The tribe further stated the Wisconsin foster family had recently been approved by the Wisconsin Interstate Compact for the Placement of Children and the approval paperwork had been mailed to Iowa.

On March 10, 2011, the child's Iowa foster parents filed a motion to intervene. The motion detailed the child's extensive medical needs, expressed concern the Wisconsin foster family was “not familiar with his medical needs,” and opined placement of D.S. with the Wisconsin foster family “could potentially have dire and far-reaching effects for D.S. and ... could cause him severe physical and psychological harm.”

The termination hearing was held over two days, on March 23 and April 14, 2011. The mother had been released from prison on March 15, 2011, and participated in the hearing. The father appeared as well. The State, guardian ad litem, and DHS caseworkers supported termination of the father's and mother's parental rights. The tribe disagreed. Lozano, the tribe's social worker, opined: (1) termination was not something that the tribe viewed as culturally appropriate; (2) the parents should have additional time (in terms of years) for reunification; (3) active efforts had not been made to the parents, and (4) the child should be placed in the Indian home in Wisconsin, as requested by the tribe.

The juvenile court granted termination of the father's and mother's parental rights pursuant to Iowa Code sections 232.116(1)(h) and 232B.6(6)(a). Specifically in respect to the ICWA provision set...