In the Interest of E.D., F.D., and J.D., Minor Children, R.G., Mother ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0829
Filed August 17, 2016
IN THE INTEREST OF E.D., F.D., AND J.D.,
Minor Children,
R.G., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Julie A.
Schumacher, District Associate Judge.
A mother appeals the termination of her parental rights to three children
who are members of an Indian tribe. AFFIRMED.
Harold K. Widdison of Harold K. Widdison, P.C., Sioux City, for appellant
mother.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
Attorney General, for appellee State.
Jessica R. Noll of Deck Law L.L.P., Sioux City, for minor children.
Ainsley Griffin Sr., Macy, Nebraska, for the Omaha Tribe of Nebraska.
Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
2
TABOR, Judge.
This termination-of-parental-rights appeal involves three children—ages
eight, four, and one—who are members of the Omaha Tribe of Nebraska.1 Their
mother, who lived on the reservation at the time of the hearing, seeks reversal of
the juvenile court’s termination order. The mother’s petition on appeal lacks
clarity as to the legal issues presented and the juvenile court findings with which
she disagrees. She mentions the sufficiency of the evidence supporting the
grounds for termination, but she does not pinpoint the elements the State fell
short of proving. Instead she alleges the State failed to show the Iowa
Department of Human Services (DHS) made reasonable efforts to reunify the
family. She also claims the juvenile court erred in denying the tribe’s motion to
transfer.2 Finally, she asserts the State failed to “comply with the spirit and the
letter” of the Indian Child Welfare Act—without specifying the ICWA provisions
allegedly breached.
Assuming the mother’s petition adequately raises a sufficiency issue, we
conclude the juvenile court properly terminated her parental rights under Iowa
Code section 232.116(1)(d) (2015). We also agree with the juvenile court’s
conclusion that the State engaged in “reasonable efforts” under Iowa Code
section 232.102(7), as well as “active efforts” to “provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family”
under section 232B.5(19). Given the unusual procedural history here, we find no
error in the juvenile court’s denial of the tribe’s motion to transfer the case under
1
A fourth child, Js.D., who tested positive for methamphetamine at birth in December
2013, was living with a relative and was not a subject of these termination proceedings.
2
The tribe did not file any documents in this appeal.
3
section 232B.5. Finally, the mother’s passing reference to non-compliance with
ICWA is too vague to trigger a more extensive review under chapter 232B.
I. Facts and Prior Proceedings
As described in the juvenile court’s decision, this family has had
“extensive history” with the DHS. Child Protection Service investigators returned
no less than eight founded assessments between 2012 and 2015. In June 2012,
the parents left F.D. (born in August 2011) and Jr.D. (born in April 2007)
unsupervised to care for themselves. Following that incident, the family
participated in voluntary services offered by the DHS. A similar incident of
neglect occurred in June 2013. The father was arrested for assaulting the
mother in October 2013; he told authorities the mother also struck him.
By January 2014, substance abuse by the parents prompted a child-in-
need-of-assistance (CINA) hearing. The mother admitted she used
methamphetamine during her pregnancy with Js.D. The juvenile court
adjudicated Jr.D., F.D., and Js.D. as CINA under Iowa Code section 232.2(6)(b),
(c)(2), (n), and (o). By the end of that month, the proceedings were transferred to
the Omaha Tribe in Macy Nebraska.
The tribe removed the children from their parents’ custody in July 2014
based on a child protective assessment showing the mother and father both used
methamphetamine while caring for the children. The mother attended an in-
patient substance abuse treatment program in Winnebago, Nebraska, during
January 2015. The tribe returned the children to her one month after she
completed treatment. The tribe dismissed the case in March 2015.
4
But renewed concerns about the mother’s drug use emerged when she
gave birth to E.D. a month later. In April 2015, the State filed a new CINA
petition because the medical staff believed the baby was going through
withdrawal. When the meconium test came back negative, the matter was
dismissed.
The family returned to the attention of the DHS a few months later. On
four occasions in the summer of 2015, the children were left unattended in the
early morning hours. In one instance, the manager of the apartment complex
where they lived saw four-year-old F.D. on top of a car. In another episode, a
police officer found three of the children alone in the apartment without a
telephone or knowledge of their parents’ whereabouts.
In September 2015, the juvenile court adjudicated E.D., F.D., and Jr.D. as
CINA under section 232.2(6)(b), (c)(2), and (n). The State asked the court to set
a hearing to determine if aggravating circumstances existed to waive the
requirement of reasonable efforts to reunify the family. The DHS initially placed
the children with a relative, who less than three weeks later asked that they be
removed from her care. After a shelter-care hearing on September 29, the
juvenile court asked the tribe to “immediately identify to the Iowa DHS any
potential relative placements” for three children. Because no family members
were identified, the DHS placed the children in foster care. The parents did not
exercise visitation with the children between August 2015 and November 2015.
On October 13, 2015, the Omaha Tribe filed a motion to transfer the CINA
cases to tribal court. The parents supported the transfer motion. The guardian
ad litem (GAL) resisted the motion, asserting it was not in the children’s best
5
interest to have their cases handled by the tribal court. The GAL reasoned that
transferring jurisdiction to the tribal court would delay permanency for the
children. The State and the DHS took no position on the tribe’s motion to
transfer. At a hearing on the motion to transfer, the Family Safety Risk and
Permanency (FSRP) worker testified she had provided parenting education,
budgeting, and supervised visitation for the family since August 2015. After the
hearing, the juvenile court decided on January 20, 2016, to retain jurisdiction of
the CINA cases. The court noted the denial of the motion to transfer did not
preclude the tribe from participating in the CINA proceedings. The court also
determined the DHS had provided active efforts to prevent the breakup of the
family, including staffing the case on a weekly basis with the DHS liaison for
Native American issues.
On November 9, 2015, the court found the existence of aggravated
circumstances under section 232.102(12)(b) and granted the State’s motion to
waive reasonable efforts and proceed to permanency. Less than one month
later, the State filed its petition to terminate parental rights of both the father and
mother as to E.D., F.D. and Jr.D. Before the termination hearing occurred, the
father was arrested for assaulting the mother after they had both been drinking.
During this same time period, the mother was evicted from her apartment in
Sioux City for not paying rent and moved in with a relative living on the Omaha
Tribe’s reservation in Macy, Nebraska.
The juvenile court held a termination hearing on April 8, 2016. The DHS
case manager Robin Garraway testified the mother had not been cooperative
with services and could not provide the children with stability. The mother
6
testified that since August 2015, she had not completed a substance abuse
evaluation, had not followed through with the parenting curriculum provided by
the FSRP worker, and did not have any income. The court observed: “The
mother was belligerent throughout the termination hearing, shouting things out
during other witnesses’ testimony, leaving the courtroom during the proceedings,
refusing to sit at the counsel table, sleeping during the proceedings, staring at the
ceiling, and refusing to answer questions on both direct and cross-examination.”
The court issued its order terminating the parental rights of both the
mother and the father on May 8, 2016. Despite earlier waiving the reasonable-
efforts requirement, the court found the DHS efforts to reunify the family were
“tantamount to ‘a vigorous and concerted level of casework beyond the level that
typically constitutes reasonable efforts.’” The mother appeals.
II. Scope and Standards of Review
We review termination-of-parental-rights proceedings de novo. In re J.L.,
779 N.W.2d 481, 485 (Iowa Ct. App. 2009). But we review the juvenile court’s
denial of a motion to transfer jurisdiction under section 232B.5 for correction of
legal error. Id.This case involves Indian children, and the parties agree that Iowa ICWA
provisions apply. The ICWA has a dual purpose—to protect the best interests of
a child and preserve the Indian culture. Id. at 492. We strictly construe the
ICWA provisions, though our “paramount interest” remains the protection of the
children’s best interests. See In re D.S., 806 N.W.2d 458, 465 (Iowa Ct. App.
2011).
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III. Analysis of Mother’s Issues
A. Statutory Grounds for Termination
In its petition to terminate the mother’s parental rights, the State relied on
Iowa Code section 232.116(1)(b), (d), (i), and (l). The court’s order terminated
the mother’s rights under subsections (d), (i), and (l).3
In her petition on appeal, the mother mentions the sufficiency of the
evidence, but does not focus our attention on what is missing from the State’s
proof. The State contends the mother waived any argument related to the
specific provisions of each code section. We agree the mother’s petition is
scanty on the basis for her sufficiency claim, but we nevertheless address the
grounds for termination.
When the juvenile court terminates parental rights on more than one
statutory ground, we may affirm the order on any ground supported by clear and
convincing evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). In this
case, we find clear and convincing evidence to support the order under
subsection (d), which requires proof of the following elements:
(1) The court has previously adjudicated the child to be
[CINA] after finding the child to have been physically or sexually
abused or neglected as the result of the acts or omissions of one or
both parents, or the court has previously adjudicated a child who is
a member of the same family to be [CINA] after such a finding.
(2) Subsequent to the [CINA] adjudication, the parents were
offered or received services to correct the circumstance which led
to the adjudication, and the circumstance continues to exist despite
the offer or receipt of services.
Iowa Code § 232.116(1)(d).
3
The court decided the State did not prove by clear and convincing evidence that the
mother abandoned the children under section 232.116(1)(b).
8
The court adjudicated F.D. and Jr.D. as CINA in January 2014 based on a
finding of parental neglect. The court adjudicated E.D., F.D., and Jr.D. as CINA
in September 2015. The two adjudications may serve as the basis for
termination of parental rights under section 232.116(1)(d). See In re J.S., 846
N.W.2d 36, 41 (Iowa 2014). The record shows after the CINA adjudication, the
mother was offered and received services to address her substance-abuse
issues, her lack of parenting skills, and her abusive relationship with the father.
The juvenile court opined: “It would be difficult to imagine a parent that has been
more resistive to reunification services than the mother in this case.” Our de
novo review of the record reveals support for that opinion. We agree with the
juvenile court’s determination that despite the offer and receipt of services, the
circumstances leading to the CINA adjudication still exist. Accordingly, we affirm
termination of the mother’s rights under subsection (d).4
B. DHS Efforts to Reunify the Family
When the DHS removes children from their parent’s care, the State is
responsible for making “every reasonable effort” to return them home as quickly
as possible consistent with their best interests. See Iowa Code § 232.102(7).
“Reasonable efforts” are those actions that make it possible for the children to
safely return to the family's home. Id. § 232.102(10)(a).
When the DHS removes Indian children from their parent’s care, the State
must offer clear and convincing evidence to the juvenile court that “active efforts
have been made to provide remedial services and rehabilitative programs
4
Although the juvenile court found aggravating circumstances warranting waiver of the
obligation to make reasonable efforts towards reunification, the DHS provided a plethora
of services before the waiver order was filed.
9
designed to prevent the breakup of the Indian family and that these efforts have
proved unsuccessful.” Iowa Code § 232B.5(19); D.S., 806 N.W.2d at 466. The
active-efforts requirement set forth in section 232B.5(19) aims to preserve the
parent-child relationship or the children’s connection to Indian culture. D.S., 806
N.W.2d at 466. The juvenile court shall not order termination, “unless the
evidence of active efforts shows there has been a vigorous and concerted level
of casework beyond the level that typically constitutes reasonable efforts . . . .
Reasonable efforts shall not be construed to be active efforts.” Iowa Code §
232B.5(19).5
The mother’s petition on appeal primarily discusses the reasonable-efforts
standard, but does include the following sentence: “There has NOT been a
‘vigorous and concerted level of case work beyond the level typically constituting
reasonable efforts.’” Although the mother’s argument is minimal on the active-
efforts requirement, we nevertheless examine whether the State met its burden
to show a concerted level of casework to prevent the breakup of this Indian
5
Iowa Code section 232B.5(19) states:
Active efforts shall include but are not limited to all of the following:
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.
10
family. Our examination confirms the DHS engaged in active efforts at
reunification.
The DHS has offered this family numerous services dating back to 2012.
After founded child abuse reports in June 2012 and June 2013, the DHS offered
FSRP assistance through Boys Town, but the family largely refused those
services. In January 2014, the mother completed a substance abuse
assessment at Jackson Recovery Center, which diagnosed her with
amphetamine dependence and recommended residential treatment. But she
refused to enter the Women and Children’s Center program that was offered.
The mother did receive drug treatment from the Winnebago Tribe and parenting
classes through the Ponca Tribe in January 2015.
The mother was offered assistance with applying for child care and
housing in August 2015, but failed to attend. In that same time period, the family
was offered FSRP services, including supervised visitation, budgeting, and
parenting skill training. The parents initially refused to attend visitation and
cooperated with the FSRP provider only sporadically.
On appeal, the mother focuses on her transportation difficulties. She
argues, while the State offered her bus passes, “those are no help because there
is no bus services between Macy, Nebraska, where the Mother lives and Sioux
City, Iowa where services are offered.” The mother moved to Macy late in the
case, after she was evicted from her apartment in Sioux City for not paying rent.
DHS worker Garraway disputed the mother’s position that transportation
was the greatest barrier to reunification. Garraway—who was assigned to the
DHS Native American unit and had knowledge regarding the Omaha Tribe—
11
testified the Macy reservation offered tribal services to people in its community,
but the mother had not chosen to participate.
In addition, the FSRP worker from Southwest Iowa Family Access Center
testified at the termination hearing that during early 2016 she had provided
round-trip transportation to the mother from Macy, Nebraska, to the children’s
foster home in Schaller, Iowa, and back—a five-hour round trip. Together with
the two-hour visitation, the process took a total of seven hours. The worker
testified the service was “above and beyond” the typical case. The worker also
testified she provided the parents with resources to help them set up a household
budget as well as a Love & Logic parenting curriculum, but the parents did not
follow through with the projects.
We agree with the juvenile court’s determination that the State satisfied
both the reasonable-efforts requirement under section 232.102(7), as well as the
more demanding ICWA active-efforts requirement.
C. Motion to Transfer Jurisdiction to Tribe
The mother claims the juvenile court erred in failing to grant the tribe’s
motion to transfer jurisdiction because “the court determined that ICWA applied
in this case” and because “both parents supported the Tribe’s motion to transfer.”
The State argues the mother did not preserve error on the issue of denial
of the tribe’s motion to transfer because (1) the mother did not present evidence
in support of the transfer motion and (2) neither the mother nor the tribe appealed
the January 20, 2016 order denying the motion to transfer.6 In the alternative,
6
The State’s response to the petition on appeal cites cases concerning standing but
does not outright argue the mother lacks standing to contest the denial of the tribe’s
12
the State contends the juvenile court correctly found good cause to deny the
tribe’s transfer motion.
We start with the preservation question. The State suggests the mother
waived her objection by not appealing the denial-of-transfer order. We disagree.
The January 20 order did not dispose of all issues in the case. Accordingly, it
was not a final appealable order. See Iowa R. App. P. 6.101(1)(a); In re T.R.,
705 N.W.2d 6, 10 (Iowa 2005); see also Citizen Potawatomi Nation v. Dinwiddie
Dep’t of Soc. Servs., No. 1713-12-2, 2013 WL 4804901, at *2 (Va. Ct. App. Sept.
10, 2013). The mother is entitled to raise the transfer issue on appeal from the
final termination ruling. See In re Y.V., No. 4199-672, 1999 WL 1255722, at *2
(Iowa Ct. App. Dec. 27, 1999).
Having determined the issue is properly before us, we reject the mother’s
argument. The fact both parents supported a transfer of jurisdiction did not
automatically require the juvenile court to grant the tribe’s motion.
In J.L., we declared the transfer provisions of Iowa’s ICWA—sections
232B.5(10) and (13)—unconstitutional because they considered only the
interests of the tribe and the parents. 779 N.W.2d at 492-93. We found the
“narrow definition of good cause prohibiting the children from objecting to the
motion to transfer based upon their best interests and introducing evidence of
their best interests” violated the children’s substantive due process rights. Id. at
motion to transfer. Because preservation of error and standing are separate concepts,
we do not find the State’s preservation argument incorporates an objection to the
mother’s standing to challenge the court’s transfer ruling. See Berent v. City of Iowa
City, 738 N.W.2d 193, 202-03 (Iowa 2007). But even if the State had properly contested
the mother’s standing, we would find she had a sufficient stake in the transfer of the
CINA cases to the tribal court to obtain judicial review of the controversy. See id.13
492 (concluding “nothing in [the Iowa ICWA] places maintaining the Indian
culture above a child’s rights or safety”). After our holding in J.L., if the children
object to the transfer of jurisdiction to the tribe, as was done by the GAL in this
case, the court must determine whether good cause, including the children’s best
interests, exists to deny the petition to transfer. See Iowa Code § 232B.5(10),
(13); In re E.D. No. 12-1839, 2012 WL 6190548, at *2 (Iowa Ct. App. Dec. 12,
2012); J.L., 779 N.W.2d at 492.
In denying the tribe’s motion to transfer, the juvenile court cited J.L. and
articulated the critical issue: “This court must consider whether, despite the
Omaha Tribe’s efforts to reunify the children with their parents, good cause exists
to prevent transfer . . . including whether the transfer is in the best interests of the
children.” After considering the progression of the CINA cases, the court
concluded, “at this time, good cause exists to deny the Omaha Tribe’s motion to
transfer jurisdiction.” The court considered the “determining factor” to be the
children’s best interests, and listed the following circumstances: (1) a “complete
lack of progress” on the part of the parents; (2) a founded child abuse
assessment only six months after the tribe returned custody to the mother; and
(3) “most importantly,” the “safety of these three young children.” See J.L., 779
N.W.2d at 492-93. The juvenile court conducted a proper analysis under J.L.
Given the particular struggles of this family and the new CINA adjudication after
the tribe’s earlier dismissal of the child welfare case, we find the juvenile court did
not err in denying the tribe’s motion to transfer.
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D. ICWA Compliance
At the conclusion of her petition on appeal, the mother asserts: “The State
failed to comply with the spirit and letter of ICWA in this case.” This broad
assertion does not direct us to any particular deficiency in the State’s handling of
the placement of these Indian children. Iowa’s ICWA, chapter 232B,
encompasses fourteen sections with multiple subsections, spanning a dozen
pages in the Iowa Code. Invocation of the entire chapter does not frame a viable
assignment of error. Because we cannot play the role of advocate, we decline to
address the mother’s vague ICWA argument. See Inghram v. Dairyland Mut. Ins.
Co., 215 N.W.2d 239, 240 (Iowa 1974) (“To reach the merits of this case would
require us to assume a partisan role and undertake the appellant’s research and
advocacy. This role is one we refuse to assume.”).
AFFIRMED.