J.W., In Interest of, 94-0745

• Decision Date: 23 January 1995
• Docket Number: No. 94-0745,94-0745
• Citation: 528 N.W.2d 657
• Parties: In the Interest of J.W., B.W., T.W., K.W.-H., and R.W.-H., Minor Children, G.W., Mother, Appellant.
• Court: Iowa Court of Appeals

Page 657

528 N.W.2d 657

In the Interest of J.W., B.W., T.W., K.W.-H., and R.W.-H., Minor Children,

G.W., Mother, Appellant.

No. 94-0745.

Court of Appeals of Iowa.

Jan. 23, 1995.

Teresa O'Brien, Sioux City, for appellant.

Bonnie J. Campbell, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., Judy A. Sheirbon, Asst. Atty. Gen., and Rhoda M. Tenuta, Asst. County Atty., for appellee-State.

Debra Y. Lulf, Sioux City, guardian ad litem, for minor children.

Heard by DONIELSON, C.J., and HAYDEN and CADY, JJ.

CADY, Judge.

Grace, an enrolled member of the Omaha tribe and eligible member of the Santee Tribe, is the mother of five children. They are John, born April 3, 1982, Bron, born June 2, 1986, Tran, born January 5, 1988, Kayla, born June 25, 1990, and Rion, born May 19, 1991. The putative father of John and Tran is John T. Lauro is the putative father of Bron. David is the father of Kayla and Rion. Grace appeals the trial court's order terminating her parental rights to her five children. She asserts the State and trial court failed to follow various procedural requirements of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1901-63. Upon review, we affirm the trial court's termination order.

The children first came to the attention of the Department of Human Services (DHS) in June 1989 when Grace and David went to South Dakota and left Tran and Bron with a thirteen-year-old baby-sitter. When Grace did not return after two days the baby-sitter contacted the police and Tran and Bron were placed in emergency foster care. The Omaha Indian Tribe was orally notified of the children's removal two days later. Grace subsequently received a substance abuse evaluation and was diagnosed alcohol dependent. At an August 1989 hearing, the parties stipulated that John, Tran, and Bron were children in need of assistance (CINA) pursuant to Iowa Code section 232.2(6)(b), (c)(2), and (n). John was also placed in emergency foster care at this time.

The two youngest children were removed from Grace's care shortly after their birth. When Kayla was born in June 1990, Grace had a blood alcohol content of .202. Kayla was placed in emergency foster care upon her release from the hospital and in August was adjudicated CINA pursuant to Iowa Code section 232.2(6)(n). At a September review hearing, the children were ordered to continue in foster care. Grace and David were granted visitation and ordered to undergo psychological evaluations and substance abuse treatment. Visitation was conditioned on the parents' proof of attending Alcoholics Anonymous and demonstrating a consistent lifestyle for at least four weeks. In February 1991, visitation was suspended due to Grace and David's inability to comply with these requirements.

Rion was born in May 1991, and placed in emergency foster care upon his release from the hospital. The Omaha Tribe received written notice of the removal the day after the hearing. Rion was adjudicated CINA in July. At a September review hearing, the children were ordered to continue in foster care and DHS indicated it would seek termination of parental rights.

In November 1991, the State filed its first petition for termination of parental rights. The Omaha Tribe received insufficient notice of the termination proceedings. After the February 1992 termination hearing, the district court found that the children would likely suffer serious physical or emotional damage if returned to Grace's or David's custody. The court ordered Grace's parental rights to John, Tran, Bron, Kayla, and Rion and David's parental rights to Kayla and Rion terminated. The court further ordered the parental rights of John T. and Lauro and any unknown biological fathers terminated.

Grace and David appealed. In November 1992, the Omaha Tribe filed a motion to intervene. We granted the Omaha Tribe's motion to intervene, however, the Omaha Tribe failed to file a brief or participate further in the appeal. In April 1993, we reversed and remanded the case. We determined the Omaha and Santee Tribes were not given proper notice of the termination proceedings. See In re J.W., 498 N.W.2d 417 (Iowa App.1993).

In May 1993, a second petition for termination was filed. By this time, the children had become enrolled members of the Omaha Tribe. The Omaha Tribe and the Santee Tribe were both given proper notice of the petition.

By June 1993, both David and Grace had filed applications requesting reinstatement of visitation. At a July 1993 hearing, the court approved an agreement for visitation entered into between Grace, David, the Omaha Tribe and DHS. However, prerequisites for visitation were not fulfilled. Although no visitation pursuant to the agreement ever occurred about a week prior to the termination hearing John met with Grace in the presence of his therapist.

In December 1993, the Omaha Tribe filed a motion, which Grace later joined, to transfer jurisdiction and dismiss the case. A hearing on the pending motions and termination petition was held in January. Grace attended the first day of the hearing but was absent the remaining three days. David was absent throughout the entire hearing.

DHS caseworker Cathy Gray testified that all of the children except John had probable fetal alcohol effects and Bron had possible microcephaly. The four youngest children were considered special needs children and required a highly structured environment. She further explained that the four oldest children had been living together in one foster home. Rion was living in the foster home of the daughter and son-in-law of the older children's foster parents and had almost daily contact with his siblings. Both sets of foster parents expressed a willingness to adopt the children.

The witnesses who testified as ICWA qualified experts at the termination hearing included: DHS caseworkers Ms. Vogel and Ms. Tope, Mr. Blackbird, from the Omaha Tribe, and Dr. Evans, an expert obtained by the guardian ad litem. Vogel and Tope, who had also testified at the previous termination hearing, recommended termination of parental rights. Blackbird testified that he knew of no Native American homes available for the children and that none of Grace's relatives had offered their homes as placement options. Dr. Evans testified that he did not think the children could be returned to Grace or David's custody.

Mr. Jacobson, John's therapist, testified that John cried inconsolably after the meeting with Grace and stated that there was little bonding between them. Jacobson did not believe the children could be returned to Grace without being likely to suffer serious emotional or physical damage. The court spoke to John in camera. John indicated he would like to remain with his foster parents and that he thought the other children felt the same way.

The district court found that there was good cause not to transfer jurisdiction of the case to the tribal court and denied the motions for transfer. The court further found that it was in the children's best interest to terminate parental rights. Accordingly, the court ordered Grace's parental rights terminated pursuant to Iowa Code section 232.116(1)(b), (d), (e), (g), (h) and (k) and David's parental rights terminated pursuant to Iowa Code section 232.116(1)(b), (d), (g), (h) and (k). The court also terminated the parental rights of John T., Lauro, and any unknown biological fathers of the children.

Grace appeals. She first argues that no good cause existed to prevent transfer of the case to the tribal court. Second, Grace contends the State removed Kayla and Rion from her custody and continued the placement of the older children without establishing by clear and convincing evidence or the testimony of qualified experts that the children would likely suffer serious emotional or physical damage in her custody as required by the ICWA. Third, Grace argues that the ICWA guidelines regarding foster care and pre-adoption placement were not complied with because the State made little or no effort to place the children in an Indian home. Finally, Grace argues that her alcoholism is not a sufficient reason to terminate her parental rights.

I. Scope of Review

Our review of proceedings to terminate parental rights is de novo. In re R.L.F., 437 N.W.2d 599, 600 (Iowa App.1989). We accord weight to the fact findings of the trial court, especially when considering the credibility of the witnesses the court has heard and observed first hand, but we are not bound by them. Id.; Iowa R.App.P. 14(f)(7). Our primary concern is the best interests of the child. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). We look to both the child's long-range and immediate interests. Id.

In the present case, the children are members of the Omaha Tribe. The Iowa statutory and case law is therefore modified by the provisions of the ICWA. See R.L.F., 437 N.W.2d at 601.

II. The Indian Child Welfare Act

Congress enacted the ICWA in response to the threat to the integrity of Indian culture caused by the unwarranted removal of large numbers of Indian children from their families and tribes by non-tribal public and private agencies and their placement in non-Indian foster and adoptive homes. 25 § U.S.C.1901. In the Act, Congress announced a two-pronged national policy: "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." Id. at § 1902. To this end, the Act imposes strict procedural standards for the removal of Indian children from their families and their placement in foster and adoptive homes. Id.; See Russell L. Barsh, The Indian Child Welfare Act of 1978: A Critical Analysis, 31 Hastings L.Rev. 1287, 1287 (1980).

III. Transfer of Jurisdiction

The core of the ICWA is its jurisdictional provisions over child custody proceedings. In re J.L.P., 870 P.2d 1252, 1256 (Colo.App.1994). The Act provides a mechanism for tribes to exert their jurisdiction beyond reservation boundaries to child custody...