Opinion
23-1416
03-27-2024
IN THE INTEREST OF Z.F., L.F., and A.F., Minor Children, K.F., Mother, Appellant.
Emily DeRonde of DeRonde Law Firm, PLLC, Johnston, for appellant mother. Brenna Bird, Attorney General, Mackenzie Moran, Assistant Attorney General, for appellee State. Lynn Vogan, Des Moines, attorney and guardian ad litem for minor children.
Appeal from the Iowa District Court for Polk County, Romonda D. Belcher, Judge.
A mother appeals the termination of her parental rights to her three children. AFFIRMED.
Emily DeRonde of DeRonde Law Firm, PLLC, Johnston, for appellant mother.
Brenna Bird, Attorney General, Mackenzie Moran, Assistant Attorney General, for appellee State.
Lynn Vogan, Des Moines, attorney and guardian ad litem for minor children.
Considered by Bower, C.J., and Greer and Chicchelly, JJ.
GREER, JUDGE.
This appeal concerns three children who are members of an Indian tribe-Z.F., born June 2017; L.F., born March 2019; and A.F., born December 2020- whose mother has struggled with substance use, domestic violence, mental health, and stable housing throughout the life of this case. On appeal, the mother asserts that the State failed to prove a statutory ground for termination, the best interests of the children do not support termination, the juvenile court should have relied on a permissive exception to avoid termination, and the State failed to prove that the Iowa Department of Health and Human Services (the department) made active efforts to reunify her with the children. She also requests six additional months to work toward reunification. We affirm the juvenile court's decision.
"The federal [Indian Child Welfare Act (ICWA)] provides that '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[.]" In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022) (second alternation in original) (quoting 25 U.S.C. § 1903(4)). The mother and all three children offered and the juvenile court admitted as exhibits their tribal enrollment letters and certificates of tribal enrollment. By the time of the termination hearing, the mother and all three children were enrolled members of the tribe and, thus, considered "Indian children" under ICWA. We use the term Indian for the purpose of consistency with the terminology used in the existing legal framework. See id. at 28 n.1.
I. Background Facts and Prior Proceedings.
The mother and all three children are enrolled tribal members of the Sokaogon Chippewa Community. The department has been involved with the mother for a number of years, initially involving another child for whom her parental rights were terminated.
The State provided the tribe with notice of involuntary child custody proceedings in August 2022. The tribe did not file a petition for intervention or an appearance in these proceedings, but it actively participated in the case.
The court terminated the mother's parental rights to another child, M.M., in December 2014.
Regarding the children at issue in this case, by way of a bridge order, Z.F. has lived with his father since November 2018, but the mother frequently saw the child. In December 2021, a daycare provider found a marijuana roach in L.F.'s backpack; the mother claimed the daycare provider placed the roach there to set her up. There were concerns about domestic abuse between the mother and her paramour in the home around the same time. The department attempted to verify the safety of the children, but the mother failed to cooperate. Upon investigation, the daycare where two of the children attended alerted the department that L.F. described domestic abuse ("daddy hits mommy") in the household with his mother. In addition, a social worker visited the mother's home and noted that it smelled like burnt marijuana. After she was observed participating in a jail visit with new bruising visible around her eye, L.F. and A.F. were removed from their mother's home in February 2022; Z.F. remained with his father, where he stayed throughout the pendency of the case. The mother refused to explain where the bruising came from or complete a requested drug test.
Over the course of these proceedings, L.F. and A.F. have changed placements: they were first placed in foster care, then moved to placement with their maternal aunt, changed placement to their maternal grandparents' home, and finally were separated and placed with different relatives. L.F. was placed with his father, and A.F. returned to her maternal aunt's home. Neither of the fathers nor the maternal aunt are members of the Sokaogon Chippewa tribe. After removal the children have not returned to the mother's home, as she left her apartment in November after she was involved in an altercation with her neighbor and struggled to obtain housing afterwards. The mother began with two supervised visits with the children per month, and in April the court ordered a third monthly supervised visit-a family dinner-between the mother and the children.
A.F.'s father's parental rights were terminated; he is not a party to this appeal.
In June, the children were adjudicated in need of assistance. In its adjudication order, the court found that active efforts had been made to eliminate or prevent the need for removal of the children from the mother's home. The court noted that the parties requested gas cards, additional family interactions, a new department social worker be assigned, and professional staffing. Documented by an emergency room visit, Z.F. reported that the mother choked him during a supervised visit in January 2023 which resulted in a founded child abuse assessment for physical abuse-abrasion against the mother. Over the course of these proceedings, the department completed multiple additional child abuse assessments that were founded against the mother: for failure to provide proper supervision and dangerous substances in January 2022, for dangerous substances in March, for dangerous substances and failure to provide proper supervision in the same month, and for failure to provide proper supervision in February 2023. After the choking incident, Z.F. expressed fear and said that his mother is mean and he does not want to see her. L.F. was diagnosed with post- traumatic stress disorder (PTSD) related to his exposure to domestic violence at the mother's home; he was attending occupational and behavioral therapy. And A.F. was experiencing consistent night terrors, which are attributable to trauma observed by her at the mother's home. In August 2022, the mother filed an application for a hearing seeking active efforts from the department. After a hearing, the court denied the motion and found that active efforts were made to prevent the need for removal; the court ordered additional interactions with the mother, a department visit to the mother's home to determine whether it was appropriate for visits, and transition to semi-supervised visitation.
Throughout the case, the mother often failed to provide requested drug tests, but some completed drug tests reflected methamphetamine use and the presence of THC (tetrahydrocannabinol) in September, November, and December 2022 and January and February 2023; additional drug tests in February, March, June, July, and October 2022 and April and May 2023 reflected the presence of THC. As excuses, the mother claimed that the department social worker must be tampering with the results because she had not used methamphetamine in years or they were positive because she had been around other people who were using methamphetamine. She also claimed that her tests came back positive for THC because her neighbors and her paramour used marijuana. However, she had a valid medical marijuana card and admitted to consuming THC drinks, gummies, and having a vape pen.
The mother completed a substance-use history, mental-health history, and evaluation of possible need for services in February 2022. The evaluation did not recommend any substance-use treatment but confirmed diagnoses of major depressive disorder, moderate amphetamine-type and cannabis use disorders, in early or sustained remission. The provider recommended that the mother participate in weekly outpatient mental-health therapy, which the mother attended March through November 2022; she began attending again in March 2023, and her therapist noted that she was diagnosed with PTSD.
The department offered family-centered services, solution-based casework, SafeCare services, family interactions, child protective assessments, Star Center physicals, mental-health referrals, substance-use referrals, domestic violence programming referrals, speech therapy and play therapy referrals, assistance with applying for housing, safety planning, financial planning, a parent partner, a peer partner, a domestic violence advocate, gas and Wal-Mart gift cards, transportation for the mother, and participated in professional and non-professional case staffings. A social worker from the department offered the mother lists of affordable apartments along with rides to complete drug tests. Another social worker helped the mother obtain a bed and food. The department also was in communication with tribal representatives, including the tribal attorney and director of Indian Child Welfare.
After visitation with the mother, the children demonstrated more aggression towards others and more difficulty in regulating their emotions. A.F. showed increased sexual behavior and touching herself; she also would bite and hit the other children, was fussy, and had night terrors. L.F. threw tantrums and had night terrors. Z.F. would act out. The court issued its permanency order in February 2023, changing its permanency goal to termination of parental rights. The tribal attorney and Indian Child Welfare Director agreed that visitation between the mother and the children was detrimental to the children and should stop. The State petitioned for termination of parental rights the same month, and the department stopped offering visitation. In March, the mother filed a second application for a hearing on active efforts. The court denied the application in April.
The court held a termination trial over two days in May and June. At the trial, a qualified expert witness who worked for the director of Indian Child Welfare testified on behalf of the tribe. She stated that she had specific knowledge on the Sokaogon Chippewa's child rearing practices and recognized that the tribe would look to place a child with the closest family member who is also a member of the tribe first. Regarding Z.F. and L.F., she testified that their placement with their fathers was the best first choice. Regarding A.F., the witness testified that the tribe also supported her placement with her maternal aunt. When asked if there were any services that the department failed to offer to the mother, the witness responded, "No." When asked if the tribe was in support of the mother's parental rights being terminated, she answered, "We absolutely are." She added that such a stance is "very, very rare." Lastly, she testified that the tribe's stance on visitation between the mother and the children was that it needed to stop "for the safety and well-being of the child[ren]. Stopping visitation is best for them."
The court terminated the mother's parental rights pursuant to Iowa Code section 232.116(1)(f) for Z.F. and L.F., 232.116(1)(g) for all three children, 232.116(1)(h) for A.F., and 232.116(1)(l) (2023) for all three children. It found that the mother had "a marijuana card, [but] continued to consume THC in methods not approved for use for medicinal purposes." In addition, "[s]he continues to be unwilling or unable to acknowledge her methamphetamine use and has reported daily marijuana use or THC consumption that is not according to her medicinal marijuana card." The court recognized that the mother had completed various drug tests that reflected substance use, yet "continues to lack the ability or willingness to acknowledge use." Ultimately, the court found that "[t]o return the children to their home at this time would subject [them] to the following adjudicatory harms: . . . unresolved substance dependency and mental health issues, [and] their mother's unresolved domestic violence and physical abuse issues." The mother appeals.
II. Standard of Review.
We review the termination of parental rights de novo. Z.K., 973 N.W.2d at 32. We give careful consideration to the court's factual findings and determinations based on in-person observations, but we are not bound by them. In re W.M., 957 N.W.2d 305, 312 (Iowa 2021). "[O]ur fundamental concern" in review of termination proceedings "is the child[ren]'s best interests." In re J.C., 857 N.W.2d 495, 500 (Iowa 2014).
III. Analysis.
Because the children are members of the Sokaogon Chippewa Tribe, the federal Indian Child Welfare Act (ICWA)-in addition to Iowa law-controls here See Indian Child Welfare Act, 25 U.S.C. §§ 1911-1923 (covering child custody proceedings); Adoptive Couple v. Baby Girl, 570 U.S. 637, 642 (2013) ("ICWA . . . establishes federal standards that govern state-court child custody proceedings involving Indian children."). See generally Iowa Code chapter 232B (setting forth Iowa's Indian Child Welfare Act (Iowa ICWA)). ICWA and the Iowa ICWA both have the dual purpose of protecting the best interests of the children and preserving Native American culture. See 25 U.S.C. § 1902; In re D.S., 806 N.W.2d 458, 465 (Iowa Ct. App. 2011). As to this tribal membership, the mother only raises it in the context of the active efforts requirement discussed below.
In general, under Iowa law, we follow a three-step analysis in reviewing the termination of a parent's rights. In re P.L., 778 N.W.2d 33, 39 (Iowa 2010). We first consider whether there is a statutory ground for termination of the parent's rights under section 232.116(1). Id. Second, we look to whether termination of the parent's rights is in the children's best interests. Id. (citing Iowa Code § 232.116(2)). Third, we consider whether any of the exceptions to termination in section 232.116(3) should be applied. Id. The provisions of ICWA "are to be strictly construed and applied to protect American Indian families." In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). Yet, even under an ICWA analysis, the paramount interest remains the protection of the best interests of the children. In re J.L., 779 N.W.2d 481, 492 (Iowa 2009), abrogated on other grounds by In re T.F., 972 N.W.2d 1, 9 (Iowa 2022). We tackle each of the mother's challenges separately.
A. Statutory Grounds for Termination.
First, the mother argues that the State failed to present clear and convincing evidence of termination under paragraphs (f) for Z.F. and L.F., (g) for all three children, and (h) for A.F. "There must be clear and convincing evidence of the grounds for termination of parental rights." In re M.W., 876 N.W.2d 212, 219 (Iowa 2016). But "we may affirm the . . . order on any ground that we find supported by clear and convincing evidence." In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). We conclude clear and convincing evidence supports the grounds for termination under paragraph (f) for Z.F and L.F. and paragraph (h) for A.F. Both paragraphs require that a showing that the child was adjudicated a child in need of assistance, removed from the parent's custody for a specific length of time, and cannot be returned to the parent's custody without exposing the child to adjudicatory harm at the present time. See Iowa Code § 232.116(1)(f)(2)-(4), (h)(2)-(4). The mother contends that L.F. and Z.F. were not removed from a parent's custody because they were in the care of their fathers, but the statute refers to removal from her, not the other parent. See In re N.M., 491 N.W.2d 153, 156 (Iowa 1992) (allowing "termination of parental rights of the noncustodial parent even though legal custody of the child is placed with the other parent"); see also Iowa Code § 4.1(17) ("Unless otherwise specifically provided by law the singular includes the plural, and the plural includes the singular."). And she argues the children could have been returned to her without harm in the future. But, we interpret "at the present time" to mean at the time of the termination hearing. D.W., 791 N.W.2d at 701.
The mother does not make any challenge on appeal toward the statutory elements of paragraph (l) for all three children, but we do not find the uncontested ground to be a sufficient basis for termination under this record.
Paragraphs (f) and (h) differ only regarding the age of the child and how long the child must be removed from the parent's custody. Compare Iowa Code § 232.116(1)(f)(1) (applying to children age four years or older), (f)(3) (requiring removal for at least twelve of the last eighteen months), with id. § 232.116(1)(h)(1) (applying to children age three years or younger), (h)(3) (requiring removal for at least six of the last twelve months).
So, at the time of the termination hearing, the mother had only restarted attending mental-health therapy two months prior after stopping treatment for several months and thus, had not fully addressed her abusive and aggressive behaviors. Likewise, the mother failed to admit to any methamphetamine use despite multiple drug tests that demonstrated the presence of methamphetamine in her system. She accused the department social worker of tampering with the test results. Without stable housing, the children could not move in with her, and she blamed the department for failing to find housing for her. In addition, she had made inconsistent progress in addressing physical abuse with the children and visitation had been halted for the three months prior to the termination trial. Thus, her past performance indicates that the children could not be safely returned to her care. See In re J.E., 723 N.W.2d 793, 798 (Iowa 2006) ("When making this decision, we look to the parents' past performance because it may indicate the quality of care the parent is capable of providing in the future."). For these reasons, we find that the State established the grounds for termination under paragraph (f) as to Z.F. and L.F. and (h) as to A.F.
B. Best Interests of the Children.
Next, the mother argues that "[t]hese children need to have continued contact with their mother and siblings and know who their family is." In considering the best interests of the children, we give "primary consideration to the child[ren]'s safety, to the best placement for furthering the long-term nurturing and growth of the child[ren], and to the physical, mental, and emotional needs of the child[ren] under section 232.116(2)." P.L., 778 N.W.2d at 40. As our case law provides, the defining elements in children's best interests are the children's safety and need for a permanent home. See J.E., 723 N.W.2d at 801 (Cady, J., concurring specially).
In looking at the best placement for the children's safety, we consider the mother's continued substance use. See In re A.B., 815 N.W.2d 764, 777 (Iowa 2012) (considering a parent's refusal "to acknowledge any illegal drug use despite strong evidence to the contrary" in assessing children's best interests). While the mother insists that her only substance use was pursuant to a valid medical marijuana card, her drug test results demonstrated otherwise. The mother returned multiple drug tests that indicated methamphetamine use in addition to the presence of THC. And, even with a medical marijuana card, "[a] patient shall not consume medical cannabidiol possessed or used as authorized under this chapter by smoking medical cannabidiol." Iowa Code § 124E.17. The social worker that visited the mother's home in February 2022 noted that the home smelled of burnt- in other words, smoked-marijuana. The mother not only failed to take responsibility for her drug use, but she also blamed others and expressed doubt about the validity of test results. Without accountability or any steps towards addressing her substance use, the children's safety is best served by termination.
In looking at the children's need for a permanent home, "[i]t is well-settled law that we cannot deprive [children] of permanency after the State has proved a ground for termination under section 232.116(1) by hoping someday a parent will learn to be a parent and be able to provide a stable home for the child[ren]." P.L., 778 N.W.2d at 41. Although the need to be in a home that will preserve the unique values of the tribal culture and assist in establishing relationships with the tribe and tribal community may seem to militate against placement away from a parent that shares tribal affiliation, neither ICWA or Iowa ICWA was "designed to completely prohibit consideration of [children]'s circumstances or rights." J.L., 779 N.W.2d at 492. Put another way, "while . . . ICWA focuses on preserving Indian culture, it does not do so at the expense of a child's right to security and stability." C.A.V., 787 N.W.2d at 104.
Although the mother did not advocate that the children should remain with her to foster their tribal heritage, because of the tribal connection, the juvenile court also heard evidence from a member of the tribal who served as a qualified expert witness. See Iowa Code § 232B.6 (requiring testimony by a qualified expert witness in proceedings involving Indian children); D.S., 806 N.W.2d at 465 (referring to the expert witness requirement in proceedings involving the termination of parental rights to Indian children). The court is required to hear from a qualified expert witness "to provide the [juvenile] court with knowledge of the social and cultural aspects of Indian life to diminish the risk of any cultural bias" in the termination decision. In re L.N.W., 457 N.W.2d 17, 18 (Iowa Ct. App.1990); see also Iowa Code § 232B.10(3) (defining types of qualified expert witnesses). The expert witness recommended terminating the mother's parental rights. She testified that usually the tribe would prefer to keep a child with the closest family member that is a member of the tribe. Yet, she agreed that given the mother's issues with mental health, substance use, and domestic and physical violence, the best placement for the children was with their fathers and their maternal aunt. She also stated that the tribe agreed with the recommendation of termination of the mother's parental rights and ending visitation since February 2022, even though taking such a position was "very, very rare" for the tribe.
And, here, the children's need for a permanent home is best furthered through termination of the mother's parental rights. The mother struggled to find permanent housing and, at the time of the termination trial, was still working on securing a place to live. She had also not acknowledged or addressed the physical or domestic violence that had occurred in her past home. For these reasons, even though the children are now placed with relatives that are not tribal members, we also find that overall termination is in the children's best interests.
C. Permissive Exception.
After that, the mother urges that, "[t]he mother and children in this case have a bond. The children very much know who their mother is and enjoy interactions with the mother." Section 232.116(3)(c) allows the court to decline termination if it "would be detrimental to the child[ren] at the time due to the closeness of the parent-child relationship." A parent resisting termination has the burden to prove this permissive exception by clear and convincing evidence, and our case law recognizes that-without more-neither a parent's love nor the mere existence of a bond is enough to prevent termination. See In re A.B., 956 N.W.2d 162, 169-70 (Iowa 2021). Rather, "our consideration must center on whether the child[ren] will be disadvantaged by termination, and whether the disadvantage overcomes [the mother's] inability to provide for [the children's] developing needs." D.W., 791 N.W.2d at 709.
Here, we decline to rely on the permissive exception to avoid termination of the mother's parental rights. While she argues that her children know her and have fun at visitation with her, such a relationship is not sufficient to outweigh the impact of the mother's challenges. As observed, after visitation with the mother, the children exhibited troubling behaviors-they acted out more, hit and bit other children, had tantrums, and showed sexualized behaviors including touching themselves. The disadvantage to the children from termination does not outweigh the mother's inability to address and provide for these young children's needs. For these reasons, the mother has not met her burden to demonstrate that the strength of her bond prevents the need for termination.
D. Active Efforts.
Next, the mother argues that the State failed to prove that the department provided "active efforts" to reunify her and the children. Under ICWA, "[a]ny party seeking . . . termination of parental rights to[] an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S.C. §1912(d); see also Iowa Code § 232B.5(19). We have interpreted active efforts to mean "a 'vigorous and concerted level of casework beyond the level' typically constituting reasonable efforts." D.S., 806 N.W.2d at 468 (quoting Iowa Code § 232B.5(19)). Furthermore, "active efforts must be made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child's tribe" and may include
a. A request to the Indian child's tribe to convene traditional and customary support and resolution actions or services.
b. Identification and participation of tribally designated representatives at the earliest point.
c. Consultation with extended family members to identify family structure and family support services that may be provided by extended family members.
d. Frequent visitation in the Indian child's home and the homes of the child's extended family members.
e. Exhaustion of all tribally appropriate family preservation alternatives.
f. Identification and provision of information to the child's family concerning community resources that may be able to offer housing, financial, and transportation assistance and actively assisting the family in accessing the community resources.Iowa Code § 232B.5(19).
Here, we find that the department provided active efforts. The mother argues that "[a]ctive efforts means sitting down with [the mother], filling out applications, finding available resources for her, finding apartments/houses available for rent and assisting [her] with applying for the home. Active efforts means giving [her] all reasonable options for services, including shelters." The mother adds that "[a]ctive efforts means making sure the parent gets to the requested drug screens, driving the parent to the testing site if needed." Yet, the record establishes that the department did offer the mother exactly those services. The tribal expert witness confirmed that the department efforts were what "I would have done every step the same." In addition, the department offered a significant list of other services to the mother, including filling out an application for housing assistance along with gas and Wal-Mart gift cards and assistance with securing food and a bed. Although the mother takes issue with the discontinuation of visitation, if providing visitation would be a detriment to the children's health and safety, it is not a violation of active efforts to not provide it. See In re K.B., No. 100997, 2010 WL 3503739, at *4 (Iowa Ct. App. Sept. 9, 2010). And the tribe agreed with the discontinuation of visitation. Therefore, we find that the department provided active efforts.
E. Additional Time.
Lastly, the mother asserts that "[w]ith an additional six months [she] could have demonstrated the ability to have the children safely returned to her care." Although the mother stated at the termination trial that she thought that if she was given additional time she could reunify with all three children, the court did not rule on the issue. Therefore, we find that this issue was not preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court" before they will be decided on appeal.); see also In re J.D.B., 584 N.W.2d 577, 581 (Iowa Ct. App. 1998) ("Our rules requiring litigants to preserve error for appeal do not conflict with any provision of ICWA or frustrate congressional policy.").
IV. Conclusion.
Because we find there was clear and convincing evidence to meet the statutory grounds for termination, the best interests of the children are best served by termination, the permissive exception does not preclude termination, and the department met the active-efforts requirement under ICWA, we affirm the termination of the mother's parental rights. We do not address the mother's request for six additional months as the issue was not preserved.
AFFIRMED.