In the Interest of L.B.-A.D.

• Decision Date: 25 May 2011
• Docket Number: No. 1-343 / 11-0456,1-343 / 11-0456
• Court: Court of Appeals of Iowa
• Parties: IN THE INTEREST OF L.B.-A.D. and A.I.A.M., Minor Children, C.N.J., Mother, Appellant.

IN THE INTEREST OF L.B.-A.D. and A.I.A.M., Minor Children,

C.N.J., Mother, Appellant.

No. 1-343 / 11-0456

COURT OF APPEALS OF IOWA

Filed May 25, 2011

Appeal from the Iowa District Court for Pottawattamie County, Craig Dreismeier, District Associate Judge.

A mother appeals from the order terminating her parental rights. AFFIRMED ON CONDITION AND REMANDED.

Scott D. Strait, Council Bluffs, for appellant mother.

Sara Thalman, Council Bluffs, for father of L.B.-A.D.

Phil Caniglia, Council Bluffs, for father of A.I.A.M.

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, Matthew Wilber, County Attorney, and Dawn Landon, Assistant County Attorney, for appellee State.

Roberta Megel, Council Bluffs, for minor children.

Considered by Sackett, C.J., and Doyle and Danilson, JJ.

DOYLE, J.

A mother appeals from the order terminating her parental rights. She contends the juvenile court failed to comply with the notice requirements of the Iowa Indian Child Welfare Act (ICWA) set forth in Iowa Code chapter 232B (2009). Additionally, she argues the State failed to prove the grounds for termination and that termination was not in the children's best interests. Upon our de novo review, we affirm on condition and remand.

I. Background Facts and Proceedings.

C.J. is the mother of L.B.-A.D., born January 2009, and A.I.A.M., born January 2010. C.J. also has three older children, born in 2003, 2004, and 2006, respectively.¹ In 2005 and 2006, C.J. and her children lived in Ohio. There were allegations in Ohio that C.J. was failing to provide her children with suitable housing, and services were offered to the mother in Ohio. Ultimately, she moved to Iowa in 2008, and her children went to live with their fathers.

After moving to Iowa, the family came to the attention of the Iowa Department of Human Services (Department) in November 2009, after it was reported that the apartment where the mother and L.B.-A.D. were living was unfit for human occupancy. One of the officers that went to the family's apartment to investigate the report described the apartment's condition as follows:

We were greeted by a strong foul odor emitting from within the house. Roaches were seen in abundance running up the kitchen walls, running across the kitchen counter.

. . . .

Roaches and flying insects were seen in every room of the [apartment]. There were roaches in the oven, refrigerator, microwave, [and] running all over the kitchen counter. The carpetswere greasy, extremely dirty, [and] littered with trash of various types and ages. The kitchen floor was covered with filth, spilled food, [and] bags of garbage. The rooms were littered with dirty clothes, dirty diapers, trash, dirty dishes, [and] other household items. The cat litter box was completely filled with cat feces.

It appeared that [L.B.-A.D.] had not been bathed recently. Her face was very dirty and she smelled like she hadn't been bathed recently.

The apartment was then inspected by the Council Bluff's rental property inspector, and he determined the apartment was unsafe and unfit for human occupancy due to unsafe and unsanitary living conditions and electrical code violations. The inspector checked other apartments in the same building and found they did not have the same issues with bugs as the family's apartment. Thereafter, the State filed its petition alleging L.B.-A.D. to be a child in need of assistance (CINA). L.B.-A.D. was then temporarily removed from the mother's care and placed in family foster care.

Services were offered to the mother, including visitation with L.B.-A.D. In early January 2010, the mother and her boyfriend found a new apartment that was at that time neat and clean. The mother gave birth to A.I.A.M. later that month. In February, the juvenile court adjudicated L.B.-A.D. CINA.

On March 3, 2010, the State filed an "Application for Notice, Order and Notice." The application stated L.B.-A.D. was allegedly an enrolled member of the Santee Sioux Tribe, and it noted that several of L.B.-A.D.'s relatives, including her grandmother, were allegedly enrolled members of the Cherokee Indian Nation. The same day, the juvenile court entered its order directing the Cherokee Nation of Oklahoma, the Easter Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians be served with a copy of the CINApetition and the juvenile court's order setting the matter for the next hearing. The bottom of the order listed those persons specified by the court to receive notice, as well as the United States Secretary of the Interior. Next to each name was a United States Postal Service tracking number, indicating notice had been mailed to those persons. Although it appears the tribes were given notice of the CINA petition, there is no indication in the record the tribes responded to the notices.

On March 23, the juvenile court entered its dispositional order. The court found the mother had kept the house clean and sanitary during that reporting period, and it noted L.B.-A.D. had been in a trial home visit since March 7. The court directed the mother to maintain the condition of the home and to seek employment. L.B.-A.D. was then transitioned back into the mother's care.

By June 2010, the condition of the family's home had deteriorated substantially, and the State sought removal of the children from the mother's care. The Department's worker stated in support of the children's removal:

This family has continued to live in an environment that was marginal at best. There is consistently dirty dishes with food waste on the kitchen counters, sink, and on the stove. There are consistently ashes surrounding the toilet from being spilled in an attempt to flush them. A flea infestation has overwhelmed the family and [their] apartment.

The worker also reported both children had numerous flea bites on their bodies; L.B.-A.D. had more than fifty bites that had been scratched so hard they scabbed over. The worker also stated A.I.A.M.'s head was flat from being confined to her car seat. On July 1, 2010, the court ordered the children be placed in family foster care. The court directed the mother to participate in family safety, risk, andpermanency services, to comply with the safety plans, and to maintain employment and suitable housing. A.I.A.M. was thereafter adjudicated CINA.

The mother became homeless in July 2010. In September 2010, following a review and dispositional hearing, the court entered its order noting that the mother continued to be homeless but had reported she was saving money to be able to establish a new home. She reported she was working hard to earn an income and she was hopeful to have a new place within a short period of time. The court noted the children were doing well in their foster home.

A permanency order was entered by the juvenile court in December 2010 following a permanency hearing. The court's order stated the mother had still not found suitable housing and continued to live in limbo. The court found that housing continued to be a "huge barrier to reunification" in the case, noting the mother chose to live with friends until she found adequate housing to accommodate the children. The court further noted L.B.-A.D.'s case had been involved with the court for a year and A.I.A.M.'s for nearly six months, without any significant changes in the mother's situation. The court directed the State to file a petition for the termination of the mother's parental rights.

On December 30, 2010, the State filed its petition for termination the mother's parental rights to L.B.-A.D. and A.I.A.M. Hearing on the petition was set for February 2011. There is no indication in the record that the tribes potentially affiliated with the children received notice of the petition or the hearing.

A few days before the scheduled termination hearing, the mother reported to the Department that she had secured housing. The Department's caseworker went to the apartment and identified several issues that needed to be resolvedbefore visits took take place as the apartment. The worker observed the floors in the kitchen and the living room were dirty, there were issues with items plugged into the electrical outlets, there were three to four inches of standing water in the bathtub, the mother's bedroom was cluttered, and there was no furniture in the home.

Hearing on the petition was held February 9 and 11, 2011. Although the mother had at last secured housing, the Department's caseworker testified it would be speculation as to whether the mother would be able to maintain the house in a livable condition, and the mother would need to maintain the home in good condition for at least three to four months before she could demonstrate she could possibly maintain stability for the children. The mother testified she had corrected the issues in her new home identified by the caseworker except she still had no furniture. She requested additional time to establish she could maintain a clean and stable home environment for the children. There was no testimony concerning the children's alleged affiliation with the various tribes, and the mother did not voice any objections or concerns that the tribes had not received proper notice of the petition for termination of her parental rights.

On March 27, 2011, the juvenile court entered its order terminating the mother's rights to the children under Iowa Code sections 232.116(1)(h) and (i). The court's order noted it had been alleged L.B.-A.D. was an enrolled as a member of the Santee Sioux Tribe and several of L.B.-A.D.'s relatives were enrolled members of the Cherokee Indian Nation. The court's order further indicated L.B.-A.D. "was not domiciled or residing within the reservation of the above mentioned tribes." There was no further reference as to notice to thetribes concerning the termination petition or any response from the tribes from their notice of the filing of the CINA petition.

The mother now appeals. She contends the juvenile...