| (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6.14(5) for rules regarding the use and citation of unpublished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.)
|
