J.D.B., In Interest of

• Citation: 584 N.W.2d 577
• Decision Date: 31 July 1998
• Docket Number: No. 97-1399,97-1399
• Parties: In the Interest of J.D.B., E.D.B., E.C.V., and J.J.B., Minor Children. A.C.B., Mother, Appellant.
• Court: Court of Appeals of Iowa

Page 577

584 N.W.2d 577

In the Interest of J.D.B., E.D.B., E.C.V., and J.J.B., Minor Children A.C.B., Mother, Appellant.

No. 97-1399.

Court of Appeals of Iowa.

July 31, 1998.

Teresa A. O'Brien of Forker & Kanter, Sioux City, for appellant.

Thomas J. Miller, Attorney General, Chris C. Odell, Assistant Attorney General, and Rhoda M. Tenuta, Assistant County Attorney, for appellee State.

Joseph Kertels, Sioux City, guardian ad litem for minor children.

Phyllis Cadue, Indian Child Welfare Advocate, Rosebud, South Dakota, for Rosebud Sioux Indian tribe.

Considered by CADY, C.J., and STREIT and VOGEL, JJ.

VOGEL, Judge.

The mother of four minor children appeals a district court order terminating her parental rights. She argues the district court erred in terminating her parental rights because it failed to apply and follow the provisions of the Indian Child Welfare Act, 25 U.S.C. § 1912, in the prior children-in-need-of-assistance (CINA) proceedings. She also argues there is insufficient evidence the children would be harmed in her care. We affirm.

Background Facts and Procedural History.

Amanda B. is the mother of four minor children, Jacob, born April 29, 1987, Elise, born June 21, 1990, Emilia V., born December 12, 1991, and Joshua, born April 26, 1993. The children's fathers did not participate in the termination proceedings and do not challenge the termination of their parental rights.

Amanda and the children first came to the attention of the Department of Human Services (DHS) in September 1995, when Amanda left them with relatives and did not return for several days. Amanda has a history of serious substance abuse. The relatives called police who removed the children and placed them in temporary foster care. At that time, the children were seriously developmentally delayed and suffered from severe head lice. Joshua was suffering from malnutrition, respiratory infection, and conjunctivitis. Emilia also suffered from respiratory infection, and Elise had an ear infection. Joshua was diagnosed as suffering from fetal alcohol effects, and the other three children have possible side effects resulting from Amanda's alcoholism. The State filed an application alleging the children were in need of assistance and asking the juvenile court for an order providing notice, pursuant to 25 U.S.C. § 1912(a), to the parents, Indian Tribes, and the United States Secretary of the Interior that the children may be members of or eligible for membership in an Indian tribe, triggering application of the Indian Child Welfare Act (ICWA). 25 U.S.C. §§ 1901-63. The juvenile court granted the application.

On September 25, 1995, the State filed a motion for hearing on the applicability of the ICWA, stating it had not been provided proof that any of the children were either a member of an Indian tribe or eligible for membership. At the temporary removal hearing on September 26, 1995, Amanda failed to appear, and no evidence was introduced indicating the children were subject to the provisions of ICWA. The juvenile court confirmed the children's custody with DHS and ruled there was no evidence at that time indicating the children were eligible for enrollment in any Indian tribe.

During the adjudicatory hearing on October 17, 1995, Amanda's attorney moved for a continuance because he had just received the file and had not yet met or had any contact with Amanda. Counsel informed the court the children were members of the Rosebud Sioux tribe. The court granted the continuance and requested that counsel provide it with a written confirmation of the children's tribal membership.

On November 1, 1995, the Rosebud Sioux tribe filed a motion to intervene, alleging the children were eligible for membership and ICWA applied. At the rescheduled CINA adjudicatory hearing on December 18, 1995, the Rosebud Sioux tribe failed to appear or submit any further evidence of the children's tribal eligibility. The court adjudicated the children to be in need of assistance, but continued the hearing on the motion to intervene and ordered the tribe to submit any evidence regarding the children's potential tribal membership.

Neither Amanda nor the Rosebud Sioux appeared at the dispositional hearing held on February 16, 1996. Amanda did, however, enter chemical dependency treatment and exercised visitation with the children in February 1996. She has not seen her children since that time. Although Amanda was offered numerous services by DHS, she continually failed to attend classes or complete substance abuse treatment. Although the tribe provided the court with some evidence regarding the children's tribal membership, the court concluded the information was incorrect, continued the hearing on the motion to intervene until August 16, 1996, and ordered the tribe to submit accurate information on or before August 12, 1996.

The Rosebud Sioux Tribe failed to appear at the August 1996 hearing on its motion to intervene or to provide membership information, so the court denied the motion to intervene. The Tribe failed to appear at the review hearing in December 1996. On February 13, 1997, the State filed a petition to terminate Amanda's parental rights pursuant to Iowa Code sections 232.116(1)(c), (d), (e), (g), (h), and (k) and the various fathers' rights pursuant to Iowa Code section 232.116(1)(b). The State also requested a hearing on the applicability of the Indian Child Welfare Act.

On March 20, 1997, the Rosebud Sioux filed a second motion to intervene, alleging ICWA applied because all four children were Indian children as defined in 25 U.S.C. § 1903(4). ¹ At the March 24, 1997, termination of parental rights and review/permanency hearing, a representative of the tribe participated via telephone. The court continued the determination of the applicability of ICWA for the tribe to present further evidence. The court scheduled a hearing on the ICWA issue for April 18, 1997. The tribe failed to appear, but did submit evidence of the children's tribal membership. On April 21, 1997, the court ruled that the children were Indian children, ICWA applied to the case, and granted the tribe's motion to intervene. On April 23, 1997, the tribe filed a motion to transfer jurisdiction and dismiss the termination proceedings. A hearing on the motion was scheduled for the same day as the termination hearing, but the tribe failed to appear. The court continued the hearing to provide the tribe with sufficient time to prepare for trial. The termination hearing was rescheduled for June.

A member of the tribe appeared on the first day of the June termination proceeding, but failed to appear for the second day. The court denied the Tribe's motion to transfer jurisdiction and to dismiss. Following the hearing, the district court terminated Amanda's parental rights as well as those of the various fathers pursuant to the statutory grounds alleged in the petition. The court found Amanda had failed to cooperate with the numerous family services offered and she continued to deny her serious substance abuse problem. The court concluded the children's welfare would be in jeopardy if they were placed in Amanda's care. Amanda has appealed; neither the Rosebud Sioux nor the fathers have appealed.

Scope of Review.

We review terminations of parental rights de novo. Iowa R.App. P. 4; In re M.N.W. and P.B.S.W., 577 N.W.2d 874, 875 (Iowa App.1998). We may review the facts as well as the law and adjudicate a parent's rights anew. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Our primary concern is the child's best interests, both immediate and long-term. In re J.W., 528 N.W.2d 657, 659 (Iowa App.1995).

The Indian Child Welfare Act, generally.

The Indian Child Welfare Act "seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society." H.R.Rep. No. 95-1386, 95th Cong., 2d Sess. 23 (1978), reprinted in 1978 U.S.C.C.A.N 7530, 7531. The Act:

was the product of rising concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 1600, 104 L.Ed.2d 29, 36 (1989); In re A.E., 572 N.W.2d 579, 581 (Iowa 1997). Congress acted in response to a perceived pattern of discrimination against native Americans in child custody proceedings. In re J.R.H., 358 N.W.2d 311, 321 (Iowa 1984) (citing Barsh, The Indian Child Welfare Act of 1978: A Critical Analysis, 31 Hastings L.J. 1287, 1287-96 (1980)). ICWA evidences a concern too many Indian children were being removed from their homes and deprived of their cultural heritage. 25 U.S.C. § 1901(4). ²

Error preservation from the CINA proceedings and federal preemption.

Amanda does not challenge the termination on the six grounds cited by the juvenile court nor does she claim the State failed to comply with the expert testimony provisions of Indian Child Welfare Act in the termination proceeding. See 25 U.S.C. § 1912(f). ³ Rather, Amanda contends the juvenile court erred in terminating parental rights because it did not comply with the expert testimony provisions of ICWA pursuant to 25 U.S.C. § 1912(e) ⁴ in the underlying CINA proceedings.

The State challenges Amanda's ability to appeal issues not raised below. It asserts Amanda failed to raise the issue of expert testimony during the CINA proceedings, although she did argue ICWA was generally applicable. The State maintains section 1914 ⁵ does not preempt state preservation of error law and thus Amanda is barred from challenging the CINA proceedings because she did not appeal the adjudication, dispositional, or review orders.

In response to the issue Amanda raises and for the protection of...