J.R.H., In Interest of

• Decision Date: 14 November 1984
• Docket Number: No. 84-138,84-138
• Citation: 358 N.W.2d 311
• Parties: In the Interest of J.R.H. and M.J.H., Children, W.R.S., Mother, Appellant, R.H., Father, Appellant, Oglala Sioux Tribe, Intervenor-Appellant.
• Court: Iowa Supreme Court

Page 311

358 N.W.2d 311

In the Interest of J.R.H. and M.J.H., Children,

W.R.S., Mother, Appellant,

R.H., Father, Appellant,

Oglala Sioux Tribe, Intervenor-Appellant.

No. 84-138.

Supreme Court of Iowa.

Nov. 14, 1984.

Michael J. Schilling, Burlington, for appellant mother.

Michael G. Dieterich, Burlington, for appellant father.

William J. Cahill, Burlington, and Russell D. Zephier, Pine Ridge, S.D., for intervenor-appellant Oglala Sioux Tribe.

Alan Waples, Burlington, guardian ad litem, for appellees J.R.H. and M.J.H.

Thomas J. Miller, Atty. Gen., Gordon E. Allen, Sp. Asst. Atty. Gen., and Eleanor E. Lynn, Asst. Atty. Gen., for Iowa Dept. of Human Services.

Considered by REYNOLDSON, C.J. and McCORMICK, LARSON, SCHULTZ and CARTER, JJ.

SCHULTZ, Justice.

These appeals arise from a child-in-need-of-assistance (CINA) proceeding in juvenile court pursuant to Iowa Code sections 232.87-.103. The State instituted these proceedings on behalf of J.R.H. and his sister M.J.H. The father, R.H., a resident of Burlington, Iowa, and the mother, W.R.S., a resident of South Dakota, were given notice of the proceedings and took part in them. The father is white. The American Indian mother is a member of the Oglala Sioux Tribe which has intervened on her behalf and requested the proceedings be transferred to its tribal court. Early in the proceedings, the juvenile court placed temporary custody of the children with the Iowa Department of Human Services (Department) for foster home placement because of suspected child abuse. After an adjudication that the children were in need of assistance, the juvenile court in two dispositional orders continued their placement with the Department.

The mother appeals from the second dispositional order claiming the court should have placed custody with her. The tribe appeals, joining the mother's claim concerning the dispositional order, and further claiming that the juvenile court order denying the tribe jurisdiction over the children was in error. The father appeals challenging the adjudicatory and dispositional orders of the juvenile court.

The Department and the children who are represented by an appointed attorney do not appeal; however, they have expressed their positions in their briefs and arguments. The Department recommended placement of the children with the mother at the time of the dispositional hearing and adheres to that position on appeal. The attorney for the children urges that the juvenile court's dispositional order be affirmed.

The father and mother lived together for approximately seven years, but were never married. The parents traveled together throughout the country in furtherance of the father's singing career. The mother was married to another man until the marriage was dissolved sometime after the birth of J.R.H. in 1972. J.R.H. was born on the Pine River Reservation in South Dakota, and his parents left the reservation several weeks after his birth. M.J.H. was born in the University Hospital in Iowa City while the parents were residing in Camanche, Iowa, in 1976. Both children have been acknowledged by their father as his children. The children are eligible for enrollment in the Oglala Sioux Tribe as members.

The evidence reflects that the father has a long-standing drinking problem. The mother testified that she was subjected to physical abuse and that she left the home shortly after her daughter was born due to this abuse and the father's threats. She maintains that she unsuccessfully sought the aid of the local authorities to secure physical custody of the children. She returned to the reservation and sought the assistance of her grandfather, a chief of the tribe. She indicated that after performing a tribal rite, he told her the children would be returned to her.

Until these proceedings commenced, the mother had little or no contact with the children. From the time of the separation until the institution of these proceedings, the father has had the full responsibility for the children. He rarely worked, so he was able to devote his time to the children. The family has received Aid to Families With Dependent Children and has lived in low-rent housing.

In January 1982 the Des Moines County Attorney's Office filed a petition to have the children adjudicated children-in-need-of-assistance due to physical abuse and neglect. The children had been placed in emergency foster care on occasions due to their father's intoxication, including one instance when he arrived for a court proceeding intoxicated. There are numerous reports of physical abuse toward the boy. On April 27, the children were placed with the Department on an emergency basis due to physical abuse to the boy which was committed the previous day.

The mother and the tribe were notified of the CINA proceedings. The mother renewed contact with her children at times when hearings were set in August and December of 1982.

On December 10, 1982, following an adjudicatory hearing, the juvenile court found the children were in need of assistance. The court cited the father's severe drinking problem and listed numerous incidents of neglect of both children and physical abuse of the boy. The petition does not allege that the children were in need of assistance due to any acts of the mother, and there were no findings to that effect pursuant to Iowa Code section 232.2(5). The court stated that the parties had agreed to a temporary disposition allowing the children to remain in the present foster home placement pending the dispositional hearing, which was then scheduled.

The dispositional hearing was set for January 11, 1982. The attorney for the children had been authorized by the court to travel to South Dakota to investigate the mother's situation in regard to custody of the children, and the court additionally authorized the father's attorney to conduct such an investigation at county expense. Home studies concerning the mother were prepared by the Department.

At the dispositional hearing in January 1983, all parties, except the father, recommended placement with the mother. On January 19, 1983, the court ordered that the children remain in the temporary legal custody of the Department with placement authorized in a foster home. The court further ordered that at the expiration of the second semester of school, the children were to be transported to South Dakota for temporary placement with the mother during the summer months under the supervision of the Department. A hearing for review and further disposition was set for August 5, 1983. The juvenile court found that the father continued to suffer from a drinking problem which detrimentally affects his treatment of the children and that it would be inappropriate to return the children into his custody. Upon considering placement with the mother, the court found that she "is unemployed, living on very limited public assistance, and further that her living arrangements, if the children were placed with her, are very uncertain and presently crowded, lacking in necessary facilities and inappropriate." At that time the mother was unemployed and lived on the reservation with members of her extended family.

At the time of the summer visitation with the mother, she moved off the reservation to Rapid City, South Dakota. She secured better housing and a job. The children were returned to Iowa and placed once again in foster care awaiting the outcome of the scheduled hearing.

The next hearing commenced, and evidence was presented on August 5 and 6. The matter was taken under advisement; however, the hearing was later reopened and further evidence was taken on October 20, 1983.

The father presented evidence that he had undergone treatment for his alcoholism and had made great strides in treatment. At the reopened hearing, however, evidence was admitted that the father had been arrested for public intoxication.

The mother provided evidence that she had moved to Rapid City, secured better housing and employment. She indicated that she had provided the children with recreational activities and the opportunity to meet their family and learn of their cultural background. A social worker for the Bureau of Indian Affairs in South Dakota and an Indian child welfare advocate for the Oglala Sioux Tribe visited the mother's home while the children were there and found the situation satisfactory. One incident occurred in which the boy was involved in some bicycle thefts with a neighbor boy. The witnesses indicated that the mother properly disciplined the boy.

The foster mother was called to testify by the father and gave a different slant on the summer's activities. She transported the children to South Dakota and testified that while the house was satisfactory, the area around it was like a Chicago ghetto. She further testified there were intoxicated men at the house behaving in what she felt was an inappropriate manner toward the mother. The foster mother reports that, after their return to Iowa, the children have talked about drinking and fighting which occurred during their visit. This testimony is suspect. The social worker concluded that the foster mother became emotionally involved with the children and lost her objectivity.

The State presented evidence through a social worker for the Department who testified and presented a report of her social investigation. The social worker concluded the father had not demonstrated sufficient progress to warrant the return of the children to his care. She indicated that the mother had provided the children's basic needs during the two months' visitation without any abuse or neglect; however, she thought that the mother would benefit from parenting assistance and would need to establish her own residence. The social worker further recommended that the court apply the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63 (1982), with special emphasis on the order of preference in placement; thus, the children...