as: 671 N.W.2d 533)
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6.14(5) for rules regarding the use and citation of unpublished
Court of Appeals of Iowa.
the Interest of C.L.B., Jr., Minor Child,
William Binkard, South Sioux City, for appellant Mother.
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, guardian ad litem for minor child.
Considered by HUITINK, P.J., and VAITHESWARAN and EISENHAUER, JJ.
Alita, an enrolled member of the Winnebago Tribe of Nebraska
and a young mother of three children, abused illegal drugs
for six years. Ultimately, her parental rights to all three
children were terminated. This appeal focuses on the third and
youngest child, Chico, born in December 2002. A companion case
filed on this date addresses Alita's parental rights to her
second child, Claudia. See
In re C.I.W.V.,
No. 03-0681 (Iowa Ct.App. September 10, 2003.)
In both cases, a fighting issue before the juvenile court
was whether the children were enrolled members of their mother's
tribe. A finding that they were tribal members would have
imposed upon the State the obligation to prove its case
for termination "beyond a reasonable doubt" rather than by "clear
and convincing" evidence, or may have justified transfer of the
case to a tribal court. See
In re B.M.,
532 N.W.2d 504, 505 (Iowa Ct.App.1995); cf.
In re S .J.,
620 N.W.2d 522, 524 (Iowa Ct.App.2000) (prescribing clear and convincing
burden of proof in non-Indian Child Welfare Act (ICWA) case).
The juvenile court concluded the children were not members of
the tribe. We agree with the court's ruling for the
reasons stated in our companion case. In addition, we adopt
the following fact finding of the juvenile court on this
has been no showing that Chico has a greater Indian
blood quantum than
his two half-sisters, who were rejected by the Tribe's enrollment
committee. Therefore, this Court finds that the Tribe has failed
to determine that ICWA applies to the children in question.
On our de novo review of the record, we also
agree with the juvenile court's decision to terminate Alita's parental
rights to Chico under Iowa Code Section 232.116(1)(g) (authorizing termination
where parent lacks ability or willingness to respond to services
and additional period of rehabilitation would not correct situation).
The court also terminated her rights pursuant to Iowa Code
sections 232.116(1)(d) and (l) but we may affirm on any
single ground cited by the court. See
In re R.K.,
649 N.W.2d 18, 19 (Iowa Ct.App.2002).
Chico was removed from his mother at birth. At the
time of the termination hearing, Alita had yet to enter
an inpatient drug rehabilitation program and was turned away from
an outpatient facility after appearing late for her first appointment.
She was living in her sister's home and sharing a
room with her niece. A Department of Human Services social
worker who had worked with Alita for four years testified
that her cooperation with the department briefly increased after her
parental rights to her second child were terminated but again
became inconsistent in the month preceding the termination hearing forChico.
A department report contained the following summary:
issues can not be resolved in a short period of
time. She has a long term need for therapy coupled
with maintained sobriety and life changes. Her lifestyle would need
to be monitored for well over a year before the
household could be determined to be safe for a child.
This should not be an option for Chico.
We agree with this assessment.
The juvenile court order terminating Alita's parental rights to Chico
671 N.W.2d 533 (Table), 2003 WL 22092588 (Iowa App.)