In the Interest of C.A.V., No. 0-329/10-0075 (Iowa App. 6/16/2010)
| Decision Date | 16 June 2010 |
| Docket Number | No. 0-329/10-0075.,0-329/10-0075. |
| Parties | IN THE INTEREST OF C.A.V., Minor Child, C.V., Mother, Petitioner, R.R.A., Father, Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Lyon County, Robert J. Dull, District Associate Judge.
A father appeals the termination of his parental rights in a private termination action. AFFIRMED.
Micah J. Schreurs of Wolff, Whorley, De Hoogh & Shreurs, Sheldon, for appellant-father.
Debra S. DeJong of Klay, Veldhuizen, Bindner, De Jong, De Jong & Halverson, P.L.C., Orange City, for appellee-mother.
Missy Clabaugh of Jacobsma, Clabaugh & Freking, P.L.C., Sioux Center, attorney and guardian ad litem for minor child.
Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
A father appeals the termination of his parental rights in a private termination action. He contends he did not abandon his daughter, who is an enrolled member of an Indian tribe. He further contends the child's mother failed to satisfy the Iowa Indian Child Welfare Act (Iowa ICWA), Iowa Code chapter 232B (2007) in two ways: (1) by not showing his continued custody was likely to result in serious emotional or physical damage to his daughter and (2) by not providing evidence of "active efforts" to prevent the break-up of the Indian family. We affirm the juvenile court's decision.
Rayne and Christina are the parents of C.A.V., who was born in April of 2005. They met in April of 2004 when Christina was nineteen years old and Rayne was twenty-nine years old. The couple lived together for a few months, but Christina moved out before C.A.V. was born. Rayne did not participate in any prenatal care visits and did not attend the birth. Rayne first saw his daughter when she was three weeks old and Christina brought her to his workplace. Similar visits of thirty minutes to an hour occurred approximately once a month between May of 2005 and May of 2006. One exception was a visit that lasted for several hours. Christina recalled that she always arranged the visits, while Rayne testified that he initiated the contact about five times. Rayne and Christina also spoke frequently on the telephone during this period of time, though as the juvenile court noted, the evidence did not support that C.A.V. was a central topic of these conversations.
Rayne provided a total of $500 in support for C.A.V. during her first thirteen months of life, in separate payments of $200 and $300, and only after Christina requested financial help. In May of 2006, Rayne acknowledged paternity and was ordered to pay $100 a month in child support. He was current in his payments as of the time of the termination order.
Rayne's contact with C.A.V. stopped on May 23, 2006, when he was sentenced to concurrent eight-year prison sentences in South Dakota for two felony offenses of witness tampering and concurrent one-year sentences for two misdemeanor offenses of furnishing alcohol to a minor.
Christina initially wrote to the sentencing judge, extolling Rayne's qualities as a "great father." She changed course in a second letter, expressing her fear of him as a "dangerous" and "manipulative" man.
Rayne decided not to accept visitors during his incarceration. He also opted to have no direct communication with C.A.V. during his time in prison, despite two letters from Christina inviting him to call her. Rayne's mother occasionally sent cards and gifts to C.A.V. during this time. Christina sought a pro se domestic abuse protective order in November of 2006, but moved to dismiss it less than a month later. Christina believed the protective order would enable her to find out Rayne's release date, but later learned that the South Dakota Department of Corrections would notify her. Rayne refrained from contacting his daughter because he concluded it was not in his "best interests" as he sought to overturn his convictions and secure parole.
After Rayne received parole in the spring of 2009, he petitioned for visitation with C.A.V. By that time, C.A.V. was four years old and had no knowledge that Rayne was her father. Christina denied Rayne's request for visitation. She married another man while Rayne was incarcerated and C.A.V. considers Christina's husband Kyle to be her father. Kyle and Christina also have a child in common.
On May 8, 2008, Christina petitioned for termination of Rayne's parental rights under Iowa Code section 600A.5, alleging abandonment. The juvenile court appointed C.A.V. a guardian ad litem, whose report supported the petition for termination.
On October 1, 2008, Rayne filed a motion to determine the applicability of the Iowa ICWA. Rayne attached certification from the Bureau of Indian Affairs showing C.A.V. was an enrolled member of the Lower Brule Sioux Tribe with one-sixteenth degree of Indian blood. Rayne has not been involved with the tribe. His Indian father's parental rights were terminated when Rayne was an infant and he was adopted by his non-Indian stepfather. Rayne testified he had not been able to embrace his Indian heritage but was "curious" about it.
The juvenile court first tackled the question whether Iowa Code chapter 232B, providing for the protection of Indian children, applied to Christina's termination petition. The court determined sections 232B.5(19) and 232B.6(6)(a) were applicable to the termination proceedings.
The juvenile court held an evidentiary hearing on September 29, 2009, and terminated Rayne's parental rights to C.A.V. on November 5, 2009. Rayne now appeals.
We review de novo termination proceedings under chapter 600A. In re R.K.B., 572 N.W.2d 600, 601 (Iowa 1998). We accord weight to the factual findings of the juvenile court, especially those regarding witness credibility, but we are not bound by them. Id. To the extent Rayne's claims of error rest upon statutory interpretation, our review is for correction of errors of law. In re R.E.K.F., 698 N.W.2d 147, 149 (Iowa 2005). The paramount concern in termination proceedings is the best interest of the child. Iowa Code § 600A.1; see In re P.L., 778 N.W.2d 33, 39 (Iowa 2010) ().
The provisions of the Iowa ICWA are to be strictly construed and applied to protect American Indian families. In re J.L., 779 N.W.2d 481, 487 (Iowa Ct. App. 2009).
The parties disagree whether Christina must prove the elements of abandonment by clear and convincing evidence or by evidence beyond a reasonable doubt. Rayne contends the proof-beyond-a-reasonable-doubt standard in section 232B.6(6)(a) applies to all aspects of the termination proceeding. Christina counters that ICWA provides a separate burden of proof as it relates to the risk of serious emotional or physical damage to the child in section 232B.6(6)(a), but that proof of abandonment remains subject to the clear-and-convincing-evidence standard in section 600A.8.
The Iowa Supreme Court recognized the variant standards in In re P.L., 778 N.W.2d 33, 35 n.1 (Iowa 2010) and In re A.W., 741 N.W.2d 793, 807 n.11 (Iowa 2007). However, in neither case did the court definitively answer the question whether the elements of abandonment must be proved beyond a reasonable doubt. In A.W., the court noted in dicta ICWA's higher standard for showing harm from continued custody, adopted from the federal act at 25 U.S.C. section 1912(f) (2006), but did not have occasion to apply the proof-beyond-a-reasonable-doubt standard to a sufficiency challenge. A.W., 741 N.W.2d at 807, n.11. The court in P.L. relied on the clear-and-convincing-evidence standard because that standard was applied by the juvenile court and the parties did not raise the burden of proof as an issue on appeal. P.L., 778 N.W.2d at 35, n.1.
Rayne cites In re J.W., 528 N.W.2d 657, 662 (Iowa Ct. App. 1995) for the proposition that the party seeking termination must prove the elements of abandonment beyond a reasonable doubt. However, J.W. addressed the higher burden only as to 25 U.S.C. section 1912(f)1 and not as to proof of abandonment under Iowa Code section 600A.8(3)(b). J.W., 528 N.W.2d at 662.
Although the juvenile court concluded Christina proved Rayne's abandonment of their daughter beyond a reasonable doubt, on appeal Christina properly recites the required burden of proof as clear and convincing evidence. The juvenile court should have applied the clear-and-convincing-evidence standard to all matters except the question whether Rayne's continuing custody is "likely to result in serious emotional or physical damage" to C.A.V. Iowa Code § 232B.6(6)(a) Proof beyond a reasonable doubt was required only with respect to the discrete determination required by section 232B.6(6)(a). In the future, juvenile courts should employ a dual burden of proof to the separate findings under sections 600A.8 and 232B.6(6)(a). Applying dual standards is consistent with how other jurisdictions have reconciled the beyond-a-reasonable-doubt standard expressed in section 1912(f) of the federal ICWA with their own state-law findings in termination cases. See, e.g., Valerie M. v. Arizona Dep't of Econ. Sc., 198 P.3d 1203, 1207 (Ariz. 2009); Timmons v. Arkansas Dep't of Human Services, ___ S.W.3d ___, ___ (Ark. Ct. App. 2010); In re D.S.P., 480 N.W.2d 234, 238-39 (Wis. 1992).
The clear-and-convincing-evidence standard also should be applied to the "active efforts" mandate found in section 232B.5(19). See In re Roe, 764 N.W.2d 789, 797 (Mich. Ct. App. 2008), abrogated on other grounds by In re J.L., 770 N.W.2d 853 (Mich. 2009); In re Vaughn R., 770 N.W.2d 795, 810-11 (Wis. Ct. App. 2009). But see In re L.N.W., 457 N.W.2d 17, 19 (Iowa Ct. App. 1990) (...
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