Opinion
No. 2-610 / 02-0952.
Filed July 31, 2002.
Appeal from the Iowa District Court for Woodbury County, MARY TIMKO (transfer hearing) and BRIAN L. MICHAELSON (termination hearing), Associate Juvenile Judges.
A mother appeals the denial of transfer of jurisdiction and termination of her parental rights. AFFIRMED.
Joseph Flannery, Le Mars, for appellant.
Thomas J. Miller, Attorney General, M. Elise Pippin, Assistant Attorney General, and Dewey Sloan, Assistant County Attorney, for appellee-State.
Tina Hodne, Sioux City, guardian ad litem for minor child.
Considered by SACKETT, C.J., and MAHAN and ZIMMER, JJ.
Marlo, mother of Kristopher, appeals a juvenile court order denying a motion to transfer jurisdiction to the tribal courts. She also appeals the court's subsequent order terminating her parental rights. We affirm the juvenile court.
I. Background Facts and Proceedings .
Kristopher was born to Marlo on May 12, 2001. Nathan is the putative father of Kristopher. Nathan and Marlo are not married. All are members of the Omaha Tribe of Nebraska.
Marlo, born September 11, 1982, has a long history of alcohol abuse, drug abuse, and unsuccessful treatment. On June 30, 2001, police responded to a domestic disturbance at Marlo's home. The police found an intoxicated Nathan bleeding profusely from his hand. Marlo was found intoxicated and passed out on a bed next to her infant son. Beer cans, garbage, and food were strewn about the house. The police arrested Marlo for child endangerment and public intoxication and removed Kristopher from the custody of Marlo and Nathan. Kristopher was initially moved to shelter care. On July 2, 2001, he was moved to his current foster home.
The Department of Human Services (the Department) made a finding of child abuse based upon denial of critical care and failure to provide proper supervision. The State filed a petition seeking to have Kristopher adjudicated a child in need of assistance (CINA) on July 3, 2001. The State provided notice to all interested parties, including the Omaha Tribe of Nebraska (Tribe) and the United States Secretary of the Interior. On August 27, 2001, the court adjudicated Kristopher CINA.
On October 5, 2001, the Tribe moved to intervene and transfer jurisdiction to the Omaha Tribal Court. At a subsequent hearing, the parties agreed to continue the proceedings regarding intervention and transfer of jurisdiction. On December 5, the matter came before the court again. The court subsequently granted the motion to intervene and continued the issue of transfer upon the Tribe's request. On February 5, 2002, the transfer issue came before the court for hearing a third time. The Tribe failed to appear at the hearing and the court denied the motion to transfer jurisdiction.
The State filed its petition for termination of parental rights on March 4, 2002. On May 31, 2002, the court terminated the parental rights of Marlo, Nathan, and any unknown biological father. The court terminated Marlo's parental rights pursuant to Iowa Code sections 232.116(1)(c) (2001) (child CINA based on physical or sexual abuse and services do not correct circumstances), 232.116(1)(d) (child CINA, child removed for at least six consecutive months, and parents have not maintained meaningful contact), 232.116(1)(g) (child three or younger, child CINA, child removed for at least six of last twelve months, and child cannot be returned), and 232.116(1)(k) (child CINA, parent has severe substance abuse problem, and child cannot be returned). Marlo appealed.
Subsections (c), (d), (g), and (k) have been renumbered as (d), (e), (h), and (l), respectively, due to amendment to Iowa Code chapter 232.
II. Standard of Review .
We review proceedings to terminate a parent-child relationship de novo. Iowa R. App. P. 6.4; In re J.J.S., 628 N.W.2d 25, 28 (Iowa Ct.App. 2001). The primary interest in termination proceedings is the best interests of the child. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). Where a child is a tribal member, the Indian Child Welfare Act (ICWA) modifies Iowa law. In re B.M., 532 N.W.2d 504, 506 (Iowa Ct.App. 1995).
III. Discussion .
On appeal, Marlo raises two issues: whether the court erred in denying the Tribe's motion to transfer jurisdiction, and whether termination of Marlo's parental rights were in the best interests of Kristopher.
A. Transfer of Jurisdiction .
Under the ICWA, a tribe has the right to seek a transfer of jurisdiction to the tribal courts. 25 U.S.C. § 1911(b) (1994). A juvenile court is required to transfer the case in the absence of good cause to deny the motion. Id.; In re J.R.H., 358 N.W.2d 311, 317 (Iowa 1984). Good cause is not defined in the ICWA. The Bureau of Indian Affairs, however, has issued non-binding guidelines for determining whether good cause exists. Id. Pursuant to the guidelines, good cause may exist where "the proceeding [is] at an advanced stage when the petition to transfer [is] received and the petitioner did not file the petition promptly after receiving notice of the hearing." Id.
The burden of establishing good cause is on the party opposing transfer, in this case the State. Id. This court has previously applied the guidelines in deciding whether good cause exists not to transfer jurisdiction to tribal courts. See In re J.W., 528 N.W.2d 657, 660 (Iowa Ct.App. 1995). However, the ultimate determination "is made on a case-by-case basis, after a careful consideration of all the circumstances of the case." Id.
Marlo contends the juvenile court improperly denied the Tribe's transfer motion because of the absence of good cause. We disagree. The State filed its CINA petition on July 3, 2001. Kristopher was adjudicated CINA on August 27, 2001. Although the Tribe received notice of the CINA petition, it waited until October 5, 2001 to file its motion for intervention and transfer of jurisdiction. At the initial hearing on the matter on October 29, 2001, the parties agreed to continue proceedings as to the transfer and intervention. This was due, in part, to upcoming elections in the Tribe, which the Tribe stated could change its position regarding the transfer issue. The intervention and transfer issues came before the court for hearing again on December 5, 2001. The court granted the intervention and continued the transfer proceedings a second time pursuant to the Tribe's request.
On February 5, the matter came before the court a third time. The Tribe failed to appear and the court denied the Tribe's motion for transfer. By that time, the proceedings had reached an advanced stage. Kristopher had been adjudicated CINA and placed in foster care. He had been out of his mother's home for more than seven months. Marlo had received substantial treatment services. The record further reveals the mother's family and history are rooted in Woodbury County and the juvenile court has been involved with Marlo since she was a child. It is true the Tribe moved to intervene and transfer jurisdiction well before the State filed its petition for termination. The Tribe also appeared at certain hearings. However, the record also reveals the Tribe requested continuance on the transfer issue because its position could change. After requesting continuance on the issue a second time, the Tribe failed to appear for the third hearing, giving every indication its position had, in fact, changed. This is further evidenced by the Tribe's failure to join in this appeal.
We conclude good cause existed not to transfer jurisdiction to the Tribe and we affirm the ruling of the juvenile court.
B. Best Interests .
Marlo argues that the objectives of the ICWA and the best interests of Kristopher would have been better served through a long-term permanency order, rather than terminating her parental rights.
In this case, Iowa statutory and case law is modified by the provisions of the ICWA. See In re B.M., 532 N.W.2d 504, 506 (Iowa Ct. App. 1995). The provisions of the ICWA are to be strictly construed and applied. In re J.W., 528 N.W.2d 657, 660 (Iowa Ct.App. 1995). Under Iowa law, the court may order termination of parental rights if there is clear and convincing evidence to support any of the grounds for termination set forth section 232.116. For evidence to be "clear and convincing," it is necessary that there be no serious or substantial doubt about the correctness of conclusions drawn from it. Raim v. Stanzel, 339 N.W.2d 621, 624 (Iowa Ct.App. 1983). The ICWA provides, in pertinent part:
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including 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).
Upon review of the record, we conclude the evidence supports termination of Marlo's parental rights. Two Department social workers qualified as experts testified at the termination hearing. Each testified that there is a likelihood of emotional or physical harm to the child because of Marlo's significant substance abuse and instability. Marlo abuses alcohol, methamphetamine, cocaine, and marijuana, and repeatedly finds herself in domestic violence situations. The Department offered services; however, Marlo failed to improve. She missed scheduled drug tests and scheduled visits with Kristopher. She tested positive for marijuana in December of 2001 and was found seriously injured with a blood alcohol content of 0.44, four times the legal limit, on March 22, 2002. Unfortunately, Marlo has shown little progress.
Regardless, Marlo argues that because Kristopher could have been placed with Native American relatives, his best interests were not served by termination. It is true that Marlo's aunt applied for and received a positive home study for placement in her home. It is also true that Kristopher's current foster family has no interest in adopting him. However, the aunt was attempting to have three other children placed with her, which could have adversely affected Kristopher's placement. In addition, the record reveals the Department intends to place Kristopher in a Native American adoptive home even if relatives do not adopt him so as not to deprive him of his cultural heritage.
We find clear and convincing evidence supports each of the statutory grounds for termination alleged by the State. We further conclude there is proof beyond a reasonable doubt that the termination of Marlo's parental rights is necessary to prevent serious emotional or physical damage to Kristopher. We conclude the juvenile court's order will serve the objectives of the ICWA and the best interests of Kristopher. Accordingly, we affirm.
AFFIRMED.