In re F.K.
| Decision Date | 06 October 2021 |
| Docket Number | No. 21-0901,21-0901 |
| Citation | 967 N.W.2d 371 (Table) |
| Parties | In the INTEREST OF F.K., G.K., and T.Y., Minor Children, J.K., Mother, Appellant. |
| Court | Iowa Court of Appeals |
Ashley Beisch of Johnson Law Office, Ogden, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant Attorney General, for appellee State.
Kevin Hobbs, Johnston, attorney and guardian ad litem for minor children.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
A mother appeals a district court order terminating her parental rights. We reject the mother's claim that the district court improperly took judicial notice of a timeline submitted by the State. There is sufficient evidence in the record to support termination of the mother's parental rights. Termination is in the children's best interests and none of the permissive exceptions to termination should be applied. We affirm the decision of the district court.
J.K. is the mother of F.K., born in 2015; G.K., born in 2016;1 and T.Y., born in 2017. The father of T.Y., T.Y. Jr., lived in the family home. The family came to the attention of the Iowa Department of Human Services (DHS) in October 2018 amid concerns the mother was using methamphetamine. There was also a report of an incident of domestic violence between T.Y. Jr. and the mother, resulting in the mother receiving a black eye. T.Y. Jr. was charged with domestic abuse.
On January 7, 2019, the children were adjudicated to be in need of assistance (CINA), pursuant to Iowa Code section 232.2(6)(c)(2) (2018). The mother successfully completed a substance-abuse treatment program in March 2019. She also met with a therapist for mental-health concerns. However, the mother's progress was short-lived, as the mother did not report for requested drug testing in August, November, or December. On January 11, 2020, the mother was arrested for a driving offense and possession of illegal drugs. The children were removed from the mother's custody on January 14 and placed with an extended family member.
The State received notice from the Cherokee Nation that the children were determined to be Indian Children as defined in the Indian Child Welfare Act (ICWA). See 25 U.S.C. § 1903(4). The State notified the Cherokee Nation the children were removed from the mother's custody.
Beginning in October 2019, the mother either refused or did not show up for requested drug testing. The mother struggled to show up on time for visits, provide adequate meals, have appropriate conversations, and interact in a positive way with the children. Additionally, the mother did not have adequate housing for herself and the children.
On October 19, 2020, the State filed a petition seeking termination of the mother's parental rights. The mother tested positive for methamphetamine in October and December. The Cherokee Nation filed a motion to intervene on January 11, 2021.2 The termination hearing was held on May 4. Renee Gann appeared on behalf of the Cherokee Nation as an expert witness. Gann testified:
That continued custody of these children with the mother and the father is most likely to result in serious emotional and/or physical damage to these children due to the issues of the substance abuse; inconsistent and unstable housing; um, issues with no income; and, um—yeah, and mental health, the mental health issues not being treated.
Gann also gave the opinion that termination of the mother's parental rights was in the children's best interests. She stated the children's current placement was appropriate and met the requirements of ICWA.
The district court terminated the mother's rights to F.K. and G.K. under section 232.116(1)(e) and (f) (2020) and T.Y. under section 232.116(1)(e) and (h).3 The court found beyond a reasonable doubt that continued custody of the children by the mother was likely to result in serious emotional or physical damage to the children. The court determined that termination of the mother's parental rights was in the children's best interests. The mother timely appeals from the decision of the district court.
Our review of termination proceedings is de novo. In re A.B. , 815 N.W.2d 764, 773 (Iowa 2012). The State must prove its allegations for termination by clear and convincing evidence. In re C.B. , 611 N.W.2d 489, 492 (Iowa 2000). " ‘Clear and convincing evidence’ means there are no serious or substantial doubts as to the correctness [of] conclusions of law drawn from the evidence." Id. Our primary concern is the best interests of the children. In re J.S. , 846 N.W.2d 36, 40 (Iowa 2014).
During the direct examination of Paige DenAdel, a social worker with DHS, the following exchange occurred:
This exchange shows that the mother did not object to the introduction of the timeline as a whole. She objected only to the portion of the timeline that arose before DenAdel started working on the case, stating, "I would object to anything prior to this worker's joining the case."
On appeal, the mother raises an entirely different objection to the one she raised at the termination hearing. She now claims the subject matter of the timeline was not information the court could judicially notice. We conclude the mother did not preserve error on the issue she raises on appeal. See In re M.A.F. , 679 N.W.2d 683, 685 (Iowa Ct. App. 2004) ().
To the extent the mother raises the issue of whether the timeline could be admitted through DenAdel, who did not have personal knowledge of incidents occurring before she started working on the case, we conclude the mother has not shown she was prejudiced by the information in the timeline. See Good v. State , No. 20-0722, 2021 WL 610168, at *2 (Iowa Ct. App. Feb. 17, 2021) (). Almost all the information in the timeline was in DHS reports, which were part of the record. See Iowa Code § 232.96(6) (); In re E.J.R. , 400 N.W.2d 531, 533 (Iowa 1987) ().
We reject the mother's claim that the district court improperly considered the timeline submitted by DHS.
A. Iowa Code section 232B.6(6)(a) provides:
Termination of parental rights over an Indian child shall not be ordered in the absence of a determination, supported by evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that the continued custody of the child by the child's parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
"This section requires the juvenile court to consider the testimony of a qualified expert witness prior to the termination of the parental rights of the child's parent or Indian custodian."4 In re S.M. , 508 N.W.2d 732, 734 (Iowa Ct. App. 1993). The qualified expert witness provides the court with information concerning "the social and cultural aspects of Indian life to diminish the risk of any cultural bias." In re D.S. , 806 N.W.2d 458, 470 (Iowa Ct. App. 2011) (citation omitted).
The mother claims the juvenile court improperly found the State proved beyond a reasonable doubt that "the continued custody of the child[ren] by the child[ren]’s parent or Indian custodian is likely to result in serious emotional or physical damage to the child[ren]."5 See Iowa Code § 232B.6(6)(a).
The mother does not dispute that Gann was a qualified expert witness. Gann testified that returning the children to the mother "is most likely to result in serious emotional and/or physical damage to these children." She based her opinion on the mother's issues with substance abuse, unstable housing, lack of income, and mental-health problems. Gann gave the opinion that termination of the mother's parental rights was in the children's best interests. Gann noted that the children were placed with an extended family member and stated this met the placement preferences of ICWA.
Based on Gann's testimony, we find the State proved beyond a reasonable doubt "that the continued custody of the child by the child's parent or Indian custodian is likely to result in serious emotional or physical damage to the child." See id. The evidence showed the mother had not successfully addressed her substance-abuse problems. She did not have adequate housing for the children to be placed in her care. Also, the mother had not addressed her mental-health...
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