(Cite as: 671 N.W.2d 531)

(The Court's decision is referenced in a "Decisions Without Published Opinions" table in the North Western Reporter. See FI IA R 6.14(5) for rules regarding the use and citation of unpublished opinions.)


Court of Appeals of Iowa.

In the Interest of C.I.W.-V., Minor Child,

A.W., Mother, Appellant,

A.V., Father, Appellant.

No. 03-0681.


Sept. 10, 2003.


Father's claim that trial court should have considered placing child with extended-family was not proper subject for appellate review of order terminating parental rights, insofar as father did not raise issue at trial or provide any legal authority to support claim.


Child was not "Indian child" and thus, Indian Child Welfare Act (ICWA) did not apply to proceedings to terminate parental rights, despite letter from tribal council that child was eligible for enrollment; previous application for enrollment was denied because child did not meet blood quantum requirements, tribe's policy had not changed regarding membership requirement, and mother had not provided any additional evidence to indicate that child met blood quantum requirement.  Indian Child Welfare Act of 1978, § 2 et seq., 25 U.S.C.A. § 1903(4).


Clear and convincing evidence supported determination to terminate mother's parental rights; mother had substance abuse problem that she refused to acknowledge, she continued to participate in abusive relationships, she failed to maintain regular employment or provide any financial assistance, and mother's response to services provided was so poor that it led to waiver of further reunification services.  I.C.A. § 232.116(1).

Appeal from the Iowa District Court for Woodbury County, Brian L. Michaelson, Associate Juvenile Judge.


The mother and father appeal from the juvenile court's order terminating their parental rights to their daughter. AFFIRMED.


William Binkard, South Sioux City, Nebraska, for appellant-mother.


Richard Moeller, Sioux City, for appellant-father.


Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Dewey Sloan, Assistant County Attorney, for appellee-State.


Marchelle Denker, Sioux City Juvenile Office, Sioux City, guardian ad litem for minor child.


Considered by SACKETT, C.J., and HUITINK and VOGEL, JJ.


SACKETT, C.J.


**1 Alita and Antonio, the mother and father of Claudia, appeal from the juvenile court's order terminating their parental rights to their daughter. The juvenile court terminated Alita's parental rights under Iowa Code sections 232.116(1)(d), (e), (g), and (h) (2003). [FN1] The juvenile court terminated Antonio's parental rights under sections 232.116(1)(d), (e), and (h). The mother contends (1) the court erred in finding, by clear and convincing evidence, the State proved all the elements of any of the statutory grounds for termination, and (2) the court erred in finding the child was not an "Indian child" within the terms of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2002) (ICWA). The father contends his family members never were "afforded the opportunity to provide a home for the child." We affirm.


FN1. The termination order cites to the 2001 Code as amended, but the petition, filed in 2003, clearly refers to the subsections in effect at that time. It is clear from the termination order that the court based its termination on the 2003 sections.


Background facts and proceedings.


Twenty-one-year-old Alita is the unmarried mother of Maricella, born in September 1999, Claudia, born in August 2001, and Chico, born in December 2002. Maricella tested positive for controlled substances at birth. Alita's parental rights to Maricella were terminated in April 2001 and she is not involved in this appeal. Chico was removed from Alita's care at birth, adjudicated to be in need of assistance, and is in the custody of the Department of Human Services. He is not involved in this appeal. Antonio is the father of Claudia, but not Maricella or Chico.


Alita is a member of the Winnebago Tribe in northeastern Nebraska. She has had a long history of services with the Iowa Department of Human Services (DHS) for chemical dependency. Her two-year tumultuous relationship with Antonio was marked by domestic abuse, substance abuse, several separations, and Antonio's assaults on Alita, resulting in a no contact order. [FN2] Her second child, Claudia, came to the attention of DHS in March 2002 when Antonio brought her to his probation officer claiming Alita had told Antonio to "take the child" and that he wanted to give Claudia to DHS. Alita and Antonio had had an altercation outside Antonio's residential treatment facility and Alita left seven-month-old Claudia on the trunk of Antonio's car. Claudia was removed from her parents' custody in May 2002 based on a finding she was imminently likely to be abused or neglected. She was placed with the same family that had custody of her half-sister, Maricella.


FN2. In early 2003, prior to the termination hearing, Alita was hospitalized after being assaulted by Antonio. She was still taking strong pain medication (Hydrocodone) for internal injuries on the morning of March 17, the hearing on the Tribe's petition for intervention.


After Claudia's removal in March, Alita was offered additional services to help correct parenting inadequacies, substance abuse problems, and other behavior, such as prostitution, that had contributed to Claudia's removal and the termination of Alita's parental rights to Maricella. Alita was resistant to and uncooperative with services offered. She was verbally aggressive and belligerent toward service providers, leading to a finding of aggravated circumstances in August 2002. Based on that finding, the court waived reasonable efforts at reunification.


Alita exercised supervised visitation with Claudia. She did not provide for Claudia financially and failed to obtain and maintain employment. Alita received a substance abuse assessment, but did not follow through with recommended services. She refused to provide UAs. A psychosocial evaluation noted Alita was in denial about the seriousness of the choices she makes to abuse drugs, to participate in illegal activity, to choose co-dependent and domestically violent relationships, and not to comply with services. At the termination hearing, she admitted violating the no contact order with Antonio and using methamphetamine regularly in the month just prior to the hearing.


**2 Antonio has a long history of drug abuse, criminal behavior, and abusive relationships. At the time of the termination hearing he was incarcerated. His paternity of Claudia was determined by the court following blood tests.


In early 2002 Alita applied to have Claudia enrolled in the Rosebud Sioux Tribe in South Dakota. That application was denied in April because neither parent was enrolled in the tribe and Claudia did not have a blood degree of at least one-fourth Sioux blood. Alita also applied to have Claudia and her younger half-brother, Chico, enrolled in the Winnebago Tribe. That application lists Alita's blood quantum as thirteen-thirty-seconds (13/32) Winnebago. The applications were denied because the children did not have the required one-fourth Indian blood quantum. Celeste Honomichl wrote to the Woodbury County Attorney's office in April 2002 concerning the CINA proceedings involving Claudia. She stated,

The Winnebago Tribe of Nebraska will not be intervening in the Child Custody Proceedings involving Claudia.... The mother, Alita ... is an enrolled member of the Winnebago Tribe but her daughter, Claudia is not eligible for enrollment. She doesn't meet the membership criteria of meeting 1/4 degree of Winnebago Indian blood.

Therefore, the Indian Child Welfare Act is not applicable for the Winnebago Tribe of Nebraska.

 No appeal, as provided for in tribal law, was taken from this denial.


On December 2, 2002 the State petitioned to terminate Alita and Antonio's parental rights. A hearing was set for February 20, 2003. On January 20 the Winnebago tribal council held a regular meeting. The notes of the meeting include the following:

Human Services Department.

Indian Child Welfare Act (I.C.W.A.) Program.

Children's issues.

....

[The Council went into executive session (unreported) for one hour thirty-five minutes.]

....

Tribal Council consensus for the involved children's family and Presenting Officer to meet with Enrollment Staff to possibly answer blood quantum questions.

 On February 18 John Blackhawk, Chairman of the Council, sent a letter to the juvenile court concerning Claudia and Chico stating, "[p]ursuant to the above referenced children they are eligible for enrollment." On February 19 the Winnebago Tribe filed a renewed motion to intervene. Hearing on the motion was held on February 20 and the morning of March 17. On March 14 Alita filed new applications for enrollment in the Winnebago Tribe for Claudia and Chico. The applications did not provide any new evidence to prove either child met the required one-fourth blood quantum for enrollment in the Tribe.


At the close of the March 17 hearing, having reviewed the Tribe's exhibits and the testimony from the February 20 hearing, the court denied the Tribe's motions to intervene. After a lunch break, the court convened the combined proceedings concerning Claudia and Chico. For Claudia, the court had a review and permanency hearing and a hearing on the petition to terminate parental rights. For Chico, the court held a dispositional/aggravated circumstances hearing.


**3 In its order filed April 2, 2003 the court found clear and convincing evidence supported the allegations in the petition for termination. It concluded that because neither parent could provide the permanency and stability necessary, it was in Claudia's "best interests that the impediments to her forming new family relationships should be swept away." The court terminated Alita's parental rights to Claudia under Iowa Code sections 232.116(1)(d), (e), (g), and (h). It terminated Antonio's parental rights under sections 232.116(1)(d), (e), and (h). Both parents appealed.


Claims on appeal.


Antonio. Antonio states one claim on appeal, that the "law does, or should, recognize the importance and best interests of the children of placing them with extended family members."


Alita. Alita claims the court erred (1) in using a "clear and convincing evidence" standard in finding the State proved the elements of any ground for termination and that termination was in Claudia's best interest, and (2) in finding Claudia was not an "Indian child" under ICWA, thereby denying the Tribe's motion to intervene and thereby availing itself of the "clear and convincing" standard instead of the "beyond a reasonable doubt" standard required by ICWA.


The State filed a statement of nonresponse, deferring to the record and the juvenile court's order.


We ordered briefing on the issue of the applicability of the Indian Child Welfare Act. See Iowa R.App. P. 6.154(1).


Scope of review.


We review terminations of parental rights de novo. In re C.H., 652 N.W.2d 144, 147 (Iowa 2002). We 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). "We only need to find grounds to terminate parental rights under one of the sections cited by the district court in order to affirm its ruling." In re R.K., 649 N.W.2d 18, 19 (Iowa Ct.App.2002). "Our review of a denial of a motion to intervene is for the correction of errors at law." In re H.N.B., 619 N.W.2d 340, 342 (Iowa 2000) (citing In re A.G., 558 N.W.2d 400, 403 (Iowa 1997)).


Analysis.


Antonio. Antonio does not challenge any of the grounds for termination cited by the juvenile court. He states error was not preserved on his relative-placement claim and neither cites nor argues any legal authority in support of his claim. Accordingly, we do not address his claim and affirm the termination of his parental rights. See In re J.D.B., 584 N.W.2d 577, 581 (Iowa Ct.App.1998) (requiring that errors be preserved to be addressed by appellate courts); Iowa Rs.App. P. 6.151(2)(e ) ("The petition should include supporting statutes, case law, and other legal authority for each issue raised ..."), 6.14(c ) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.").


Alita. We address Alita's claims in reverse order because our resolution of the applicability of the Indian Child Welfare Act claim controls our resolution of the burden-of-proof claim.


**4 A. Applicability of ICWA. The crucial determination to be made in this case is whether or not Claudia is an "Indian child" as defined in ICWA. 25 U.S.C. § 1903(4). [FN3] The provisions of ICWA do not apply until the court determines the children are "Indian." "[I]t is incumbent upon the party asserting applicability of ICWA to prove the child meets the criteria under ICWA." In re M.N.W., 577 N.W.2d 874, 875 (Iowa Ct.App.1998) (citing In re A.G.-G., 899 P.2d 319, 321 (Colo.Ct.App.1995); see also In re A.M., 235 Neb. 506, 455 N.W.2d 572, 573 (Neb.1990)). Indian tribes are the arbiters of their own membership. In re J.W., 498 N.W.2d 417, 422 (Iowa Ct.App.1993); In re A.E., 749 P.2d 450, 452 (Colo.Ct.App.1987). "Formal membership requirements differ from tribe to tribe, as do each tribe's method of keeping track of its own membership." In re J.D.B., 584 N.W.2d 577, 582 (Iowa Ct.App.1998) (quoting Application of Angus, 60 Or.App. 546, 655 P.2d 208, 212 (Or.Ct.App.1982)). Without a conclusive determination by a tribe, the juvenile court must determine if a child is an "Indian child." In re A.G. G., 899 P.2d at 322.


FN3. Section 1903(4) provides:

"Indian child" means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.


From our review of the exhibits in the record before us, we conclude the Winnebago Tribe has established the following provisions pertinent to our review of whether or not Claudia is eligible for enrollment in the Tribe. Article II, section 1 as amended of the Constitution and Bylaws of the Winnebago Tribe of the Winnebago Reservation in the State of Nebraska provides in pertinent part:

The membership of the Winnebago Tribe of Nebraska shall consist as follows:

....

(c) All children born to a member of the Winnebago tribe of Nebraska ... provided said children possess at least one-fourth (1/4) degree Winnebago Indian blood.

 Winnebago Const. art. II, § 1(c) (1963). The Constitution and Bylaws may be amended by a majority vote of tribal members and approval of the Secretary of the Interior. Winnebago Const. art IX. Applications for enrollment are made to a five-member enrollment committee appointed by the tribal council. Winnebago Tribe Code §§ 5-109, 5-101. The enrollment committee accepts or rejects applicants by motion of the committee. Id. at § 5-109(3). A rejected applicant may appeal to the tribal council. Id. at § 5-109(4). The tribal council gives final approval to the decision of the enrollment committee. Id. at § 5-110(1). The council also decides appeals made by rejected applicants. Id. at § 5-110(3). The blood quantum determination is made using the degree of Winnebago Indian blood shown on the base rolls of the Tribe. Id. at § 5-117. Children of a member who are born out of wedlock are deemed to possess one-half (1/2) of the total degree of Winnebago Indian blood possessed by the parent. Winnebago Tribe General Enrollment Ordinance No. 2, § 7. The burden of proof is on the applicant. Id. at § 4. A member of the Tribe may request an increase in their blood quantum if they believe it is in error by submitting a written request with all necessary documentation. Winnebago Tribe Code § 5-118. The enrollment committee approves or disapproves the request and forwards approved requests to the tribal council for final approval. Id. at § 5-118.


**5 At the February 20, 2003 hearing on the Tribe's motion to intervene, Celeste Honomichl, ICWA Representative for the Tribe, testified the historical position of the Tribe concerning applicants for enrollment was that they were not eligible until they had completed the application process and met the required blood quantum for enrollment. Then, in response to questions concerning the Tribe's position on Claudia's eligibility, she noted,

Recently it was brought in front of the tribal council on cases that we weren't able to intervene on because of the blood quantum, meeting the one-fourth criteria. So the tribal council took a different stance on that and as of a couple weeks ago, ... [the] tribal council ruled that if, based on decendency, if the parent, one of the parents is on the tribal rolls and a member of the tribe, on the roll, then any children of them is eligible for enrollment pending the enrollment procedures.

 When asked for more specifics on any resolutions of the council, changes in the Constitution and Bylaws of the Tribe, or changes in enrollment application procedures, Ms. Honomichl claimed a lack of knowledge and stated the Tribal Council would have the answers. She testified she believed if the Tribe was allowed to intervene, it would petition to transfer the case to the tribal court because the Council has "taken the stance that there are to be no terminations in tribal court." The court suspended the hearing on the motion to intervene until such time as the council chairman could come to testify. The court stated, "the Court needs to get to the bottom of what's going on here, because quite frankly, I'm somewhat suspicious as to what's happening here ..." Arrangements were made for John Blackhawk, Chairman of the Tribal Council to testify. The hearing on the Tribe's motion to intervene reconvened the morning of March 17.


Mr. Blackhawk testified Alita had filed new applications for enrollment for Claudia and Chico just days before the hearing. He stated the requirements that a child (1) have a parent who is a member of the Tribe and (2) have one-quarter Winnebago Indian blood had not been changed. He indicated the process to amend the tribal documents to change the required blood quantum would require a vote of the whole Tribe and take at least six months. When the letter stating Claudia was eligible for enrollment was written, Alita had not yet filed a new application for Claudia's enrollment. The previous application had been denied because Claudia did not have the required blood quantum of Winnebago Indian blood. When asked whether Claudia and Chico meet the eligibility requirements for enrollment based on the documentation to date, he replied, "[e]nrollment makes that determination. I don't make that determination." Although he testified Alita claimed there was an error in her mother's blood quantum, he agreed Alita had not provided any documentation for that claim and her mother had not requested an increase in her blood quantum. Despite the previous denial of Claudia's application for enrollment, based on an insufficient blood quantum (13/64 = 20.3%) and the lack of any new documentation proving the previous calculation was incorrect, Mr. Blackhawk maintained Claudia was eligible for enrollment pending investigation of her application.


**6 The court admitted into evidence the new application forms submitted by Alita. The cover page lists the following requirements that are applicable to the case before us:

A) Has a parent who is a member of the Winnebago Tribe of Nebraska or had a parent who was a member of the Winnebago Tribe of Nebraska at the time of his or her birth.

B) Is at least one quarter (1/4) degree Winnebago Indian blood.

 The form also notes the burden of proving eligibility for enrollment and of supplying documentation is on the applicant. Alita listed her blood quantum in Claudia's application as 13/32, the same as in the 2002 application. No documentation was included to demonstrate any basis for finding Claudia's blood quantum was higher than calculated in the previous application and that it meets the one-quarter minimum. The application also notes Antonio is not a member of any tribe. Based on the Tribe's own governing documents, Claudia would be deemed to have 13/64 (20.3%) degree of Winnebago Indian blood.


At the close of the hearing, the court stated, "I haven't heard anything from the witness stand or through the documentation that would lead me to believe that the Court should sustain the motions to intervene." The court denied the motions to intervene and proceeded to the termination and dispositional/aggravated circumstances hearing.


Alita argues the February 18, 2003 letter stating Claudia and Chico are eligible for enrollment demonstrates the court erred in denying the motions to intervene. We disagree. At the time the letter was written, Alita had not filed new applications for enrollment. The only previous application had been denied for insufficient blood quantum. Alita did not file an appeal from that denial, as provided for in the Tribe's Code. Winnebago Tribe Code §§ 5-109, 5- 110. The minutes of the Tribal Council allegedly supporting the claim the Council had changed the application procedure so that applicants are deemed eligible pending determination of their eligibility contains nothing to indicate any resolution was passed, what the claimed resolution contained, or that any other governing document was amended. It merely indicates a Council "consensus" to meet with the family and enrollment staff to discuss blood quantum questions. Although tribes are the arbiters of their own membership, no documentation was provided to the court that the Winnebago Tribe's governing documents had been changed or that any change was in process. Alita did not provide any credible documentation to prove Claudia is eligible for enrollment in the Winnebago Tribe. Without such proof, Claudia does not meet the definition of "Indian child" in ICWA. 25 U.S.C. § 1903(4). Consequently, ICWA does not apply and the juvenile court correctly denied the Tribe's motions to intervene. We find no error and affirm the decision of the juvenile court.


B. Burden of proof and termination of parental rights. Having determined ICWA does not apply, we conclude the juvenile court correctly used a "clear and convincing" evidence standard in evaluating the sufficiency of the evidence to terminate Claudia's parents' rights. As noted above, Antonio has not challenged any of the grounds upon which the court terminated his parental rights and we affirm that termination.


**7 Claudia contends clear and convincing evidence does not support any of the statutory grounds upon which the court terminated her parental rights. From our de novo review of the record, we find clear and convincing evidence supports the termination. [FN4] Alita has had a substance abuse problem for several years. Although she claimed at the termination hearing that she now was ready and willing to address that problem and to have her children returned to her care, she admitted regular use of methamphetamine during the month preceding the termination hearing. Her response to services and service providers was so poor it led to waiver of reasonable efforts based on aggravated circumstances. See Iowa Code § 232.102(12). She continues to participate in abusive relationships, even if it means violating a no contact order. She has not maintained regular employment. Alita has not provided for her children financially. Her past performance as a parent and her past response to services give us an indication of her ability to care for her children in the future and how she would respond to services. See In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981).


FN4. We note that, even if we had concluded ICWA applied in Claudia's case, we would affirm the termination because we find evidence beyond a reasonable doubt supports termination under Iowa Code sections 232.116(1)(d) and (h).


Alita has been offered services to correct the circumstances which led to Claudia's adjudication but they continue to exist despite the offer or receipt of services. Iowa Code § 232.116(1)(d). In the six months prior to the termination, Alita was unwilling to make the necessary changes in her behavior to have regular visitation with Claudia. She did not provide for Claudia financially. Alita did not terminate her relationship with abusive partners. She did not maintain significant and meaningful contact with Claudia or make reasonable efforts to resume her care. Iowa Code § 232.116(1)(e).


Although Alita claims she has stopped playing a game concerning services and now is willing to participate and change her lifestyle, we find her actions speak louder than her words and an additional period of rehabilitation would not correct the situation that led to Claudia's removal. Iowa Code § 232.116(1)(g). Based on the lack of change and Alita's own admission she continues her drug abuse and participation in abusive relationships, even in the face of termination of her parental rights, we find Claudia could not be returned to her care. Iowa Code § 232.116(1)(h). For the foregoing reasons, we affirm the termination of Alita's parental rights on all grounds cited by the juvenile court.


AFFIRMED.



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