L.N.W., In re, 89-1377

• Decision Date: 27 March 1990
• Docket Number: No. 89-1377,89-1377
• Parties: In re L.N.W., A Minor Child. Appeal of C.W., Mother.
• Court: Iowa Court of Appeals

Page 17

457 N.W.2d 17

In re L.N.W., A Minor Child.

Appeal of C.W., Mother.

No. 89-1377.

Court of Appeals of Iowa.

March 27, 1990.

Robert J. Rehan of Vakulskas & Hoffmeyer, Sioux City, for appellant.

Thomas J. Miller, Atty. Gen., Gordon E. Allen, Deputy Atty. Gen., and Valencia Voyd McCown, Asst. Atty. Gen., for appellee, the State of Iowa.

Considered by OXBERGER, C.J., and DONIELSON and HABHAB, JJ.

HABHAB, Judge.

Appellant, C.W., appeals from juvenile court order terminating her parental rights. ¹ We affirm.

The child in question, L.N.W., is a girl born on May 9, 1988. On May 29, 1988, L.N.W. was removed from the physical care of C.W. and placed in emergency foster care. On that date, C.W. was arrested for public intoxication and child endangerment after leaving the care of L.N.W. to other bar patrons while C.W. became inebriated.

L.N.W. has remained in foster care since that time. In July 1988, L.N.W. was adjudicated a child in need of assistance. ² The State subsequently filed a petition for termination of parental rights of C.W. and T.K. Following a hearing on the petition for termination of parental rights, the juvenile court terminated the rights of both parents. In its ruling, the juvenile court found the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (1982), applicable to the case. ³ C.W. raises two issues on this appeal: (1) whether the State satisfied the ICWA's requirement of including the testimony of a "qualified expert witness" in the termination proceeding, and (2) whether the State made sufficient active efforts to provide C.W. with remedial services and rehabilitative programs.

Appellate review of termination proceedings is de novo. In re W.G., 349 N.W.2d 487, 491 (Iowa 1984), cert. denied, 469 U.S. 1222, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985). We give weight to the findings of fact of the juvenile court, especially when considering the credibility of witnesses, but we are not bound by those determinations. Id. at 491-92. We note at the inception that the attorney and guardian ad litem for the minor child joins the appellee-State of Iowa in support of the juvenile court's order terminating C.W.'s parental rights.

I.

The first issue we need address concerns C.W.'s argument that the State failed within the meaning of the Indian Child Welfare Act to present the testimony of a qualified expert witness at the termination proceeding. To meet this requirement, the State presented the testimony of social worker Alma Schmitt. Thus, appellant's argument centers on whether Ms. Schmitt is a qualified expert witness within the meaning of that act.

ICWA provides in pertinent part:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

25 U.S.C. § 1912(f) (1982). This section requires the juvenile court to consider the testimony of a qualified expert witness prior to termination of the parental rights of the child's parent or Indian custodian. This testimony "is to provide the court with knowledge of the social and cultural aspects of Indian life to diminish the risk of any cultural bias." In re N.L., 754 P.2d 863, 867 (Okl.1988). The term "qualified expert witness" is not statutorily defined. While the Department of Interior issued guidelines for state courts, these guidelines "are not published as regulations because they are not intended to have binding legislative effect." 44 Fed.Reg. 67584 (1979).

Ms. Schmitt is a social worker employed by the Department of Human Services for over two and one-half years. She has a bachelor of science degree in social work and has taken a seminar on ICWA. Additionally, Ms. Schmitt has throughout her life been associated with Native Americans and has affiliated herself with the Indian Youths of America group. Approximately one-third of Ms. Schmitt's usual case load of forty-five to fifty cases normally involve Native American households.

The juvenile court made a specific factual finding as to Ms. Schmitt's qualification to be a qualified expert witness under ICWA. Upon our de novo review, we find no abuse of discretion in this determination. See In re T.J.J., 366 N.W.2d 651, 655 (Minn.Ct.App.1985) (Court found no abuse in discretion in finding that two psychologists were qualified expert witnesses where both psychologists had taken course work in Native American culture and one of the psychologists was experienced in working with Native American youth.); In re K.A.B.E., 325 N.W.2d 840, 844 (S.D.1982) (Social worker with B.A. in social work and who had regular contract with Native Americans and director of youth shelter which had approximately 30% Native Americans as residents were both found to be qualified expert witnesses.). We find the requirement of 25 U.S.C. section 1912(f), pertaining to qualified expert witness testimony, to have been met by the testimony of Ms. Schmitt.

II.

Appellant also argues that the State failed to show that active efforts were made to provide her with remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. ICWA provides:

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under state law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

25 U.S.C. § 1912(d) (1982). We find appellant's argument on this issue to be meritless. The record shows conclusively that the State made a number of efforts at providing C.W. with remedial services and rehabilitative programs designed to prevent the breakup of her family. We note "these efforts and their futility must be shown beyond a reasonable doubt." Matter of Kreft, 148 Mich.App. 682, 384 N.W.2d 843, 848 (1986) (citing In re Morgan, 140 Mich.App. 594, 604, 364 N.W.2d 754, 758 (1985)).

C.W. has a long history of alcoholism and drug abuse....