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(Cite
as: 528 N.W.2d 657)
Court
of Appeals of Iowa.
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.
Jan.
23, 1995.
Appellate
court's review of proceedings to terminate parental rights is de
novo.
In
determining whether parental rights should be terminated, court's primary concern
is best interests of child.
Good
cause existed for not transferring termination of parental rights case
involving Indians to tribal court, under ICWA; termination proceedings were
well advanced at time that transfer of petition was first
filed, transfer would result in hardship to the parties as
bulk of evidence and majority of witnesses were amenable to
state court jurisdiction but not that of tribal court, state
had
had extensive contact with family for over four years while
tribe's contact was limited and sporadic, and tribes had representative
present at termination hearing who could advance cultural interest of
tribe. Indian Child Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
State
court parental termination proceeding would not be invalidated, under ICWA,
on grounds that court had placed children in temporary foster
care and continued their placement at subsequent dispositional hearings without
testimony of qualified expert witnesses; while court had taken judicial
notice of prior proceedings containing alleged flaw, court did not
rely exclusively on those findings to reach its conclusions, but
rather made use of new expert witness testimony. Indian Child
Welfare Act of 1978, §§ 102(e),
104, 25 U.S.C.A. §§ 1912(e),
1914.
State
was not required to follow guidelines on foster care and
preadoption placements set forth in ICWA in connection with termination
of parental rights of Indians; ICWA provided guidelines rather than
compulsory requirements, and mother had indicated preference that children remain
in present homes rather than be separated into Indian foster
homes. Indian Child Welfare Act of 1978, § 105,
25 U.S.C.A. § 1915.
Evidence
supported termination of parental rights of Indian parents; mother had
history of chronic alcoholism and unemployment, four youngest children had
probable fetal alcohol effects due to drinking during pregnancy, mother
would leave children with inappropriate caretakers in order to drink,
mother demonstrated lack of interest in children, father physically abused
mother, and children had been in foster care for a
considerable period of time. Indian Child Welfare Act of 1978,
§ 102(f),
25 U.S.C.A. § 1912(f).
*657
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.
*658
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,
*659
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.
*660
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
actions involving off-reservation tribal members. 25 U.S.C. § 1911(b)
requires the state to transfer "proceeding[s] for the foster care
placement of, or termination of parental rights
to, an Indian child not domiciled or residing with the reservation of
the Indian child's tribe" to the jurisdiction of the tribe "absent
good cause to the contrary."
Good cause is not defined in the ICWA. The Bureau
of Indian Affairs (BIA), however, has issued guidelines for determining
whether good cause exists.
(a)
Good cause not to transfer the proceedings exists if the
Indian child's tribe does not have a tribal court as
defined by the Act to which the case can be
transferred.
(b)
Good cause not to transfer the proceeding may exist if
any of the following circumstances exist:
(i)
The proceeding was at an advanced stage when the petition
to transfer was received and the petitioner did not file
the petition promptly after receiving notice of the hearing.
(ii)
The Indian child is over twelve years of age and
objects to the transfer.
(iii)
The evidence necessary to decide the case could not be
adequately presented in the tribal court without undue hardship to
the parties or the witnesses.
(iv)
the parents of a child over five years of age
are not available and the child has had little or
no contact with the child's tribe or members of the
child's tribe.
(c)
Socio-economic conditions and the perceived adequacy of tribal or Bureau
of Indian Affairs social services or judicial systems may not
be considered in a determination that good cause exists.
(d)
The burden of establishing good cause to the contrary shall
be on the party opposing the transfer.
44 Fed.Reg. 567,583, 67,591 (1979). The guidelines were not published
as regulations and are not binding. 44 Fed.Reg. 67,584; See
In re Adoption of T.R.M.,
525 N.E.2d 298, 307 (Ind.1988) (citing Batterton
v. Francis,
432 U.S. 416, 424, 97 S.Ct. 2399, 2405, 53 L.Ed.2d
448, 456 (1977). We have, however, previously applied these guidelines
in deciding whether good cause exists not to transfer jurisdiction
to tribal courts. See
In re J.R.H.,
358 N.W.2d 311, 317 (Iowa 1984). Ultimately, the determination whether
good cause not to transfer exists is made on a
case-by-case basis, after a careful consideration of all the circumstances
of the case. In
re Wayne R.N.,
107 N.M. 341, 343, 757 P.2d 1333, 1335 (App.1988).
In this case, Grace asserts the trial court violated section
1911(b) when it found good cause not to transfer the
termination proceedings to the tribal court. We disagree.
These facts sufficiently support the trial court's conclusion that the
proceedings were at an advanced stage when the Tribe petitioned
to transfer and the petition was not filed promptly after
receiving notice of the proceedings. [FN1]
See
Wayne R.N.,
757 P.2d at *661
1336; In
re Maricopa County Juvenile Action,
171 Ariz. 104, 110, 828 P.2d 1245, 1251 (App.1991); In
re Robert T.,
200 Cal.App.3d 657, 664-65, 246 Cal.Rptr. 168, 172-74 (1988).
FN1.
The ICWA also enables Grace to request transfer to the
tribal court. 25 U.S.C. § 1911(b).
Grace has been involved in these proceedings and represented by
council since 1989. Throughout the various adjudicatory and dispositional hearings
she never requested a transfer of jurisdiction. The first time
Grace sought a transfer of jurisdiction was when she joined
the Tribe's December 1993 motion. We cannot escape the conclusion
that Grace's last minute request for a transfer to the
tribal court is an effort to manipulate the system after
losing her battle in the state court. See
People in Interest of J.J.,
454 N.W.2d 317, 330-31 (S.D.1990).
Additionally, transfer would result in undue hardship to the parties
and the witnesses. The bulk of the evidence is located
in Iowa and the majority of the witnesses and parties
reside in Iowa. The tribal court lacks the ability to
subpoena witnesses outside its jurisdiction. Furthermore, the State, through its
social agencies, has had extensive contact with the family unit
for over four years. In comparison, the Tribe's contact has
been limited and sporadic. See
In re N.L.,
754 P.2d 863, 869 (Okl.1988) (holding good cause to deny
a transfer may be found where almost all of the
parties and witnesses reside in the county of the state
court and have no contact with the tribal court); J.R.H.,
358 N.W.2d at 317 (finding good cause to deny transfer
where the State had extensive contact with the family unit,
and the majority of the evidence and witnesses were in
same state as the state court).
Lastly, the Tribe had representatives present at the termination hearing.
These representatives were able to advance the interests of the
Tribe and protect against the possibility of state court bias
against tribal culture. The Tribe's attorney participated in the proceedings
and case workers from the Tribe and Indian Youth of
America testified. Thus, the possibility that Grace's rights would be
terminated based on conduct or values that would have been
acceptable to the Tribe was minimized. Under these circumstances, the
trial court had good cause to retain jurisdiction. See
Wayne R.N.,
107 N.M. at 344, 757 P.2d at 1336.
IV.
Section 1914
Grace
next asserts the termination should be reversed because the court violated
ICWA section 1912(e) when it placed the children in temporary foster care
and continued their placement at subsequent dispositional hearings without
the testimony of qualified expert witnesses.
Grace relies on section 1914 to support her claim. Section
1914 provides a parent "may petition any court of competent
jurisdiction to invalidate [a foster care placement or termination] upon
a showing that such action violated any provision of sections
1911, 1912, and 1913...." Thus, Grace requests this court to
invalidate the termination proceeding because of an alleged violation in
the prior temporary legal custody proceedings. On the facts of
this case, we decline to extend the language of section
1914 to provide such a remedy.
Assuming the violations alleged by Grace occurred, she would be
entitled to invalidation of the initial temporary custody proceedings. Section
1914, however, "does not provide for invalidation of a valid
separate action because of an invalid prior one." In
re M.E.M.,
209 Mont. 192, 679 P.2d 1241, 1243 (1984); D.E.D.
v. State,
704 P.2d 774, 782 (Alaska 1985).
When terminating Grace's parental rights the trial court took judicial
notice of the prior proceedings with consent of the parties.
The court, however, did not rely exclusively on its earlier
findings to reach its conclusion to terminate Grace's parental rights.
It made specific findings based on testimony of three qualified
ICWA experts at the termination hearing. These witnesses each concluded
the children were likely to suffer serious physical or emotional
damage if returned to their parent's custody.
V.
Foster Care Placement
Grace
argues the termination should be overturned for the State's failure to
follow ICWA section 1915 guidelines on foster care and pre-adoption placements.
Section 1915 of the ICWA requires the trial judge to give preference
in foster home placement, "absent good cause to the contrary,"
to members of the child's extended family, a foster home licensed or specified
by the child's tribe, an Indian foster home licensed by an authorized
*662
non-Indian licensing authority, or an institution for children approved
by an Indian tribe or operated by an Indian organization.
Grace, however, provides no authority for her assertion that noncompliance
with section 1915 requires reversal of the trial court's termination
order. The remedial provisions of section 1914 do not apply
to violations of section 1915. Section 1914 specifically applies to
violations of sections 1911, 1912, and 1913. See
B.R.T. v. Executive Director of Social Sec. Bd,
391 N.W.2d 594, 601 (N.D.1986). (holding "invalidation of a parental
rights termination may not be accomplished by showing a violation
of the placement preferences in a proceeding brought pursuant to
section 1914.").
Moreover, Grace has never made a motion requesting the children
be moved from their present foster homes. On the contrary,
she has previously indicated she prefers that the children remain
together in their present homes rather than being separated in
Indian foster homes. Grace's preference is an appropriate consideration
in foster home placement. See
25 U.S.C. § 1915(c)
("Where appropriate the preference of the ... parent shall be
considered....").
VI.
Sufficiency of the Evidence
Finally,
Grace challenges the sufficiency of the evidence to support the trial
court's termination order. She claims the court erroneously
terminated her parental rights merely because she is an alcoholic.
Under ICWA section 1912(f), the state bears the burden of
showing "beyond a reasonable doubt" that parental rights should be
terminated. After reviewing the evidence, we conclude the State has
met this burden.
Grace has a history of chronic alcoholism and unemployment. Throughout
this case she has resisted or failed to cooperate with
service providers. The four youngest children have probable fetal alcohol
effects due to her drinking during pregnancy. Grace has a
pattern of leaving her children with inappropriate caretakers and has
consistently placed her desire to drink ahead of her children's
needs. Although Grace completed an alcohol treatment program in April
1992, she failed to follow through with after care treatment.
By her own admission, her alcoholism has prevented her from
caring for and visiting her children since their foster care
placement in 1991. There are many examples of Grace's lack
of interest and instability, including her failure to attend the
termination hearing after the first day and her eviction from
her apartment during the termination proceedings.
Grace's relationship with David has also contributed to her inability
to appropriately parent her children. Their relationship has been marked
by David's ongoing physical abuse of Grace. David's most recent
arrest for domestic abuse of Grace occurred in September 1993.
This abuse has had a negative impact on the children.
On one occasion, John began crying uncontrollably after recalling an
incident when he witnessed David's abuse of Grace. Additionally, David
has a chronic alcohol problem that has led to numerous
arrests and criminal convictions.
John, Bron, and Tran have been in foster care since
1989 and Kayla and Rion have been in foster care
since their respective births in 1990 and 1991. This is
long after the statutory limit. See
Iowa Code § 232.116(1)(e),
(g). "As in so many other similar cases, we cannot
ignore the relentless passage of time and the fact that
while [Grace] searches for sobriety, her children languish in parentless
limbo." In
re R.J.,
436 N.W.2d 630, 636 (Iowa 1989). We find beyond a
reasonable doubt the best interests of these children require termination
of Grace's parental rights.
In conclusion, we note the foster parents are willing to
adopt these children. We are also cognizant of the provisions
and preferences of the ICWA which must be considered in
placing these children in adoptive homes.
AFFIRMED.
528 N.W.2d 657
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