(Cite as: 670 N.W.2d 433)

(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 See FI IA R 6.14(5) for rules regarding the use and citation of unpublished opinions.)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 J.Y. and J.Y. Minor Children,

M.Y., Mother, Appellant.

No. 03-0983.


Aug. 27, 2003.


Termination of mother's parental rights was warranted; when the children were removed, they were faltering developmentally, and, within three months of their placement with an aunt and uncle, children had shown great improvement in their social skills and development, mother continued to abuse alcohol and failed to take advantage of the liberal visitation afforded her, and children could not be returned to mother's home because she was still struggling with her sobriety and her home was not a safe environment for children to be raised.  I.C.A. § 232.116(1)(f).


Witness who had a bachelor's degree in social work and had worked for social service agencies for more than six years before assuming her position with the tribal agency properly was qualified as an expert to testify in parental rights termination proceeding involving the Indian Child Welfare Act (ICWA); although witness had only worked for Indian tribe for about eight months and lacked detailed knowledge of its cultural practices, she was hired by the tribe to ensure compliance with the ICWA.  25 U.S.C.A. § 1912.

Appeal from the Iowa District Court for Tama County, Thomas L. Koehler, Judge.


Mother appeals termination of her parental rights, contending there was insufficient evidence to support termination and that the State failed to comply with the Indian Child Welfare Act's expert witness qualification requirement. AFFIRMED.


John Thompson, Tama, for appellant Mother.


Nancy Burk, Toledo, for the Father.


Thomas J. Miller, Attorney General, Kathrine Miller Todd, Assistant Attorney General, and Brent Heeren, Tama County Attorney, for appellee State.


Dennis Appelgate, of Mickleson, Roan, and Appelgate, Toledo, guardian ad litem for children.


Thomas Grabinski, Grinnell, Attorney for intervenor guardians.


Jennifer Steffens, of Grimes, Buck, Schoell & Beach, attorney for intervenor Tribe.


Considered by HUITINK, P.J., and VAITHESWARAN and EISENHAUER, JJ.


VAITHESWARAN, J.


**1 Melissa and Jonathon, both enrolled members of the Sac and Fox Tribe of the Mississippi in Iowa ("Tribe"), are the biological parents of sons John and Jared, born in 1993 and 1995, respectively. The parents have a history of abusing alcohol.


When the children were two and three years old, the Department of Human Services ("Department") removed them from their home and had them placed with their paternal aunt and uncle, where they remained throughout these proceedings.


Initial reunification efforts proved unsuccessful and, after several years, the State petitioned to terminate the parents' rights. Jonathon consented to the termination and has not appealed. Melissa did not consent to the termination but did not appear or testify at the termination hearing. Following the hearing, the district court granted the termination petition pursuant to Iowa Code section 232.116(1)(e) (2001 Supp.) (permitting termination where parent fails to maintain significant and meaningful contact with child) and (f) (permitting termination where there is clear and convincing evidence the child cannot be returned to the parent's custody).


On appeal, Melissa essentially claims the evidence is insufficient to support termination. She also contends that the State failed to comply with the Indian Child Welfare Act's requirement relating to expert witness qualifications.


I. Sufficiency of the Evidence


In a case involving the Indian Child Welfare Act ("ICWA"), the State must establish the grounds for termination by proof beyond a reasonable doubt. In re J.W., 528 N.W.2d 657, 662 (Iowa Ct.App.1995). On our de novo review, we believe the State produced sufficient evidence to satisfy its burden of proof under Iowa Code section 232.116(1)(f) (permitting termination where child cannot be returned to the parents' custody).


When the children were removed, they were faltering developmentally. Within three months of their placement with an aunt and uncle, however, the Department reported that the children had "shown great improvement in their social skills and development ."


Melissa, in contrast, did not initially show improvement. She continued to abuse alcohol and failed to take advantage of the liberal visitation afforded her. While she later began attending an alcohol treatment program and increased her visitation, her progress was not consistent. At a permanency hearing almost two years following the children's removal, the juvenile court found that neither Melissa nor the children's father could provide for the children's needs. Although the court concluded termination of the parents' rights would not then serve the children's best interests, it ordered the permanency goal changed from parental reunification to long-term relative placement.


Meanwhile, the children continued to thrive with their aunt and uncle and Melissa continued to falter. The Department recommended and implemented a schedule of unsupervised visits, but became concerned with the lack of structure during visits and with Melissa's admission that she had consumed alcohol since the permanency order. Visitation became supervised and the number of visits was reduced and eventually curtailed after Melissa pled guilty to operating while intoxicated (third offense) and driving while barred. When visits were later reinstated, Melissa's interaction with the children was positive, but by this time, even the Tribe was recommending termination of her parental rights.


**2 At the termination hearing, a Department worker testified the children could not be returned to Melissa's home because she was still "struggling with her sobriety" and her home was "not a safe environment for these children to be raised in...." An expert on the ICWA testified that the children's placement with their aunt and uncle was stable and would allow them to preserve their heritage. The aunt and uncle's testimony describing their own status as enrolled and active members of the Tribe and the steps they had taken to expose the children to their culture reinforced this opinion.


While the record suggests Melissa was a loving, caring, and appropriate caretaker when sober, the State's evidence was sufficient to establish she had not conquered her addiction and John and Jared could not be returned to her care.


II. Indian Child Welfare Act-Expert Witness Qualification


The ICWA requires a termination of parental rights proceeding to be supported by "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) (2001). Melissa contends that the State's expert was not "qualified" within the meaning of this provision.


The State called the director of the Meskwaki Family Services program. She had a bachelor's degree in social work and worked for social service agencies for more than six years before assuming her position with the tribal agency. Although she had only worked for the Tribe for about eight months and lacked detailed knowledge of its cultural practices, the record reflects she was hired by the Tribe to ensure compliance with the ICWA. [FN1] Under these circumstances, we believe that the district court did not abuse its discretion in overruling the objection to her qualifications. [FN2] See In re S.M., 508 N.W.2d 732, 735 (Iowa Ct.App.1993).


FN1. We recognize a divergence of opinion among other jurisdictions as to whether an expert witness under the ICWA must possess "special knowledge of social and cultural aspects of Indian life." State ex rel Juvenile Dept. of Multnomah County v. Charles, 70 Or.App. 10, 688 P.2d 1354, 1359 (Or.Ct.App.1984), review dismissed, 299 Or. 341, 701 P.2d 1052 (Or.1985); see also State ex rel Juvenile Department of Lane County v. Tucker, 76 Or.App. 673, 710 P.2d 793, 799 (Or.Ct.App.1985) (recognizing an exception to this general rule where "cultural bias is clearly not implicated"). But see In re the Welfare of T.J.T. and G.L.J., 366 N.W.2d 651, 655 (Minn.Ct.App.1985) (opining "a witness' background in Indian culture does not necessarily determine whether that witness qualifies as an expert" under the ICWA).


FN2. The State argues counsel did not timely object to her qualifications. We conclude counsel adequately preserved error on this issue.


III. Disposition


We affirm the district court's termination of Melissa's parental rights to John and Jared.


AFFIRMED.


670 N.W.2d 433 (Table), 2003 WL 22017245 (Iowa App.)


 


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