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(Cite
as: 584 N.W.2d 577)
Court
of Appeals of Iowa.
In
the Interest of J.D.B., E.D.B., E.C.V., and J.J.B., Minor Children.
A.C.B.,
Mother, Appellant.
No.
97-1399.
July
31, 1998.
Based
on requirement that a party must preserve error to have
an issue reviewed
on
appeal, mother was barred from challenging deficiencies in the children-in-need-of-assistance
(CINA) proceedings in appeal alleging trial court failed to apply
and follow the provisions of the Indian Child Welfare Act
(ICWA). Indian Child Welfare Act, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Although
the Indian Child Welfare Act (ICWA) modifies state case law
and statutes concerning child custody, it neither expressly nor impliedly
preempts state error preservation rules. Indian Child Welfare Act, § 2
et seq., 25 U.S.C.A. § 1901
et seq.; I.C.A. § 232.1
et seq.
Court
rules requiring litigants to preserve error for appeal do not
conflict with any provision of Indian Child Welfare Act (ICWA)
or frustrate congressional policy. Indian Child Welfare Act, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Failure
to object operates as a waiver of any improprieties in
the testimony.
Having
failed to come forward with evidence the children qualified as
Indian, for purposes of Indian Child Welfare Act (ICWA), mother
and the Indian tribe could
not complain the juvenile court did not apply ICWA in
the children-in-need-of-assistance (CINA) proceedings; until it was established that children
met definitional criteria, neither mother nor tribe qualified for protection
under ICWA. Indian Child Welfare Act, §§ 2
et seq., 4(4), 25 U.S.C.A. §§ 1901
et seq., 1903(4).
Provisions
of Indian Child Welfare Act (ICWA) do not apply until
the court determines the children are Indian as defined in
ICWA. Indian Child Welfare Act, §§ 2
et seq., 4(4), 25 U.S.C.A. §§ 1901
et seq., 1903(4).
It
is incumbent upon the party asserting applicability of Indian Child
Welfare Act (ICWA) to prove the child meets the criteria
under ICWA. Indian Child Welfare Act, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Indian
tribes are the arbiters of their membership, since formal membership
requirements differ from tribe to tribe, as do each tribes
method of keeping track of its own membership.
Alleged
violations of Indian Child Welfare Act (ICWA) in the children-in-need-of-assistance
(CINA) proceedings did not invalidate termination of mother's parental rights.
Indian Child Welfare Act, §§ 2
et seq., 104, 25 U.S.C.A. §§ 1901
et seq., 1914.
Expert
testimony, for purposes of the Indian Child Welfare Act (ICWA),
provides the court with knowledge of the social and cultural
aspects of Indian life to diminish the risk of any
cultural bias. Indian Child Welfare Act, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Evidence
was sufficient to establish that termination of mother's parental rights
was in the best interests of the children; mother continually
failed to participate in or complete treatment for her substance
abuse, and had not had personal visitation with her children
for over two years, and her abuse of alcohol and
illegal drugs led to abuse and neglect of her children,
who suffered from the effects of her alcohol usage during
pregnancy. I.C.A. §
232.116,
subd. 1.
*578
Teresa A. O'Brien of Forker & Kanter, Sioux City, for
appellant.
Thomas J. Miller, Attorney General, Chris C. Odell, Assistant Attorney
General, and Rhoda M. Tenuta, Assistant County Attorney, for appellee
State.
Joseph Kertels, Sioux City, guardian ad litem for minor children.
Phyllis Cadue, Indian Child Welfare Advocate, Rosebud, South Dakota, for
Rosebud Sioux Indian tribe.
Considered by CADY, C.J., and STREIT and VOGEL, JJ.
VOGEL, Judge.
The mother of four minor children appeals a district court
order terminating her parental rights. She argues the district court
erred in terminating her parental rights because it failed to
apply and follow the provisions of the Indian Child Welfare
Act, 25 U.S.C. § 1912,
in the prior children-in-need-of-assistance (CINA) proceedings. She also argues there
is insufficient evidence the children would be harmed in her
care. We affirm.
Background
Facts and Procedural History.
Amanda B. is the mother of four minor children, Jacob,
born April 29, 1987, Elise, born June 21, 1990, Emilia
V., born December 12, 1991, and Joshua, born April 26,
1993. The children's fathers did not participate in the termination
proceedings and do not challenge the termination of their parental
rights.
Amanda and the children first came to the attention of
the Department of Human Services (DHS) in September 1995, when
Amanda left them with relatives and did not return for
several days. Amanda has a history of serious substance abuse.
The relatives called police who removed the children and *579
placed them in temporary foster care. At that time, the
children were seriously
developmentally delayed and suffered from severe head lice. Joshua was
suffering from malnutrition, respiratory infection, and conjunctivitis. Emilia also suffered
from respiratory infection, and Elise had an ear infection. Joshua
was diagnosed as suffering from fetal alcohol effects, and the
other three children have possible side effects resulting from Amanda's
alcoholism. The State filed an application alleging the children were
in need of assistance and asking the juvenile court for
an order providing notice, pursuant to 25 U.S.C. § 1912(a),
to the parents, Indian Tribes, and the United States Secretary
of the Interior that the children may be members of
or eligible for membership in an Indian tribe, triggering application
of the Indian Child Welfare Act (ICWA). 25 U.S.C. §§ 1901-63.
The juvenile court granted the application.
On September 25, 1995, the State filed a motion for
hearing on the applicability of the ICWA, stating it had
not been provided proof that any of the children were
either a member of an Indian tribe or eligible for
membership. At the temporary removal hearing on September 26, 1995,
Amanda failed to appear, and no evidence was introduced indicating
the children were subject to the provisions of ICWA. The
juvenile court confirmed the children's custody with DHS and ruled
there was no evidence at that time indicating the children
were eligible for enrollment in any Indian tribe.
During the adjudicatory hearing on October 17, 1995, Amanda's attorney
moved for
a continuance because he had just received the file and
had not yet met or had any contact with Amanda.
Counsel informed the court the children were members of the
Rosebud Sioux tribe. The court granted the continuance and requested
that counsel provide it with a written confirmation of the
children's tribal membership.
On November 1, 1995, the Rosebud Sioux tribe filed a
motion to intervene, alleging the children were eligible for membership
and ICWA applied. At the rescheduled CINA adjudicatory hearing on
December 18, 1995, the Rosebud Sioux tribe failed to appear
or submit any further evidence of the children's tribal eligibility.
The court adjudicated the children to be in need of
assistance, but continued the hearing on the motion to intervene
and ordered the tribe to submit any evidence regarding the
children's potential tribal membership.
Neither Amanda nor the Rosebud Sioux appeared at the dispositional
hearing held on February 16, 1996. Amanda did, however, enter
chemical dependency treatment and exercised visitation with the children in
February 1996. She has not seen her children since that
time. Although Amanda was offered numerous services by DHS, she
continually failed to attend classes or complete substance abuse treatment.
Although the tribe provided the court with some evidence regarding
the children's tribal membership, the court concluded the information was
incorrect, continued the hearing on the motion to intervene until
August 16, 1996, and ordered the tribe to submit accurate
information on or before August 12, 1996.
The Rosebud Sioux Tribe failed to appear at the August
1996 hearing on its motion to intervene or to provide
membership information, so the court denied the motion to intervene.
The Tribe failed to appear at the review hearing in
December 1996. On February 13, 1997, the State filed a
petition to terminate Amanda's parental rights pursuant to Iowa Code
sections 232.116(1)(c), (d), (e), (g), (h), and (k) and the
various fathers' rights pursuant to Iowa Code section 232.116(1)(b). The
State also requested a hearing on the applicability of the
Indian Child Welfare Act.
On March 20, 1997, the Rosebud Sioux filed a second
motion to intervene, alleging ICWA applied because all four children
were Indian children as defined in 25 U.S.C. § 1903(4).
[FN1] At the March 24, 1997, termination of parental rights
and review/permanency hearing, a representative of the tribe *580
participated via telephone. The court continued the determination of the
applicability of ICWA for the tribe to present further evidence.
The court scheduled a hearing on the ICWA issue for
April 18, 1997. The tribe failed to appear, but did
submit evidence of the children's tribal membership. On April 21,
1997, the court ruled that the children were Indian children,
ICWA applied to the case, and granted the tribe's motion
to intervene. On April 23, 1997, the tribe filed a
motion to transfer jurisdiction
and dismiss the termination proceedings. A hearing on the motion
was scheduled for the same day as the termination hearing,
but the tribe failed to appear. The court continued the
hearing to provide the tribe with sufficient time to prepare
for trial. The termination hearing was rescheduled for June.
FN1.
Section 1903 provides in pertinent part:
(4)
"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.
A member of the tribe appeared on the first day
of the June termination proceeding, but failed to appear for
the second day. The court denied the Tribe's motion to
transfer jurisdiction and to dismiss. Following the hearing, the district
court terminated Amanda's parental rights as well as those of
the various fathers pursuant to the statutory grounds alleged in
the petition. The court found Amanda had failed to cooperate
with the numerous family services offered and she continued to
deny her serious substance abuse problem. The court concluded the
children's welfare would be in jeopardy if they were placed
in Amanda's care. Amanda has appealed; neither the Rosebud Sioux
nor the fathers have appealed.
Scope
of Review.
We review terminations of parental rights de novo. Iowa R.App.
P. 4; In
re M.N.W. and P.B.S.W.,
577 N.W.2d 874, 875 (Iowa App.1998). We may review the
facts as well as the law and adjudicate a parent's
rights anew. In
re Dameron,
306 N.W.2d 743, 745 (Iowa 1981). Our primary concern is
the child's best interests, both immediate and long-term. In
re J.W.,
528 N.W.2d 657, 659 (Iowa App.1995).
The
Indian Child Welfare Act, generally.
The Indian Child Welfare Act "seeks to protect the rights
of the Indian child as an Indian and the rights
of the Indian community and tribe in retaining its children
in its society." H.R.Rep. No. 95-1386, 95th Cong., 2d Sess.
23 (1978), reprinted
in 1978 U.S.C.C.A.N 7530, 7531. The Act:
was
the product of rising concern in the mid-1970's over the
consequences to Indian children, Indian families, and Indian tribes of
abusive child welfare practices that resulted in the separation of
large numbers of Indian children from their families and tribes
through adoption or foster care placement, usually in non-Indian homes.
Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 32, 109 S.Ct. 1597, 1600, 104 L.Ed.2d
29, 36 (1989); In
re A.E.,
572 N.W.2d 579, 581 (Iowa 1997). Congress acted in response
to a perceived pattern of discrimination
against native Americans in child custody proceedings. In
re J.R.H.,
358 N.W.2d 311, 321 (Iowa 1984) (citing Barsh, The
Indian Child Welfare Act of 1978: A Critical Analysis,
31 Hastings L.J. 1287, 1287-96 (1980)). ICWA evidences a concern
too many Indian children were being removed from their homes
and deprived of their cultural heritage. 25 U.S.C. § 1901(4).
[FN2]
FN2.
Congress stated its findings:
(4)
that an alarmingly high percentage of Indian families are broken
up by the removal, often unwarranted, of their children from
them by nontribal public and private agencies and that an
alarmingly high percentage of such children are placed in non-Indian
foster and adoptive homes and institutions.
Error
preservation from the CINA proceedings and federal preemption.
Amanda does not challenge the
termination on the six grounds cited by the juvenile court nor does she
claim the State failed to comply with the expert testimony provisions
of Indian Child Welfare Act in the termination proceeding. See
25 U.S.C. § 1912(f).
[FN3] Rather, Amanda contends the *581
juvenile court erred in terminating parental rights because it did not
comply with the expert testimony provisions of ICWA pursuant to 25 U.S.C.
§ 1912(e)
[FN4]
in the underlying CINA proceedings.
FN3.
This section provides:
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. (Emphasis added).
FN4.
This section provides:
No
foster care placement may be ordered in such proceeding in
the absence of a determination, supported by clear and convincing
evidence, 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. (Emphasis added).
The State challenges Amanda's ability to appeal issues not raised
below. It asserts Amanda failed to raise the issue of
expert testimony during the CINA proceedings, although she did argue
ICWA was generally applicable. The State maintains section 1914 [FN5]
does not preempt state preservation of error
law and thus Amanda is barred from challenging the CINA
proceedings because she did not appeal the adjudication, dispositional, or
review orders.
FN5.
Section 1914 allows challenges to state proceedings if the procedural
requirements of ICWA are not followed.
Any
Indian child who is the subject of any action for
foster care placement or termination of parental rights under State
law, any parent or Indian custodian from whose custody such
child was removed, and the Indian child's tribe may petition
any court of competent jurisdiction to invalidate such action upon
a showing that such action violated any provision of sections
1911, 1912, and 1913 of this title.
In response to the issue Amanda raises and for the
protection of the children and of the prospective adoptive parents
from any subsequent proceedings to invalidate this termination, we address
the issue whether our rules of error preservation are preempted
under federal law. See
In
re J.W.,
498 N.W.2d 417, 419 (Iowa App.1993).
[FN6]
FN6.
We note an attack on the termination in federal district
court would be precluded by the doctrine of res
judicata.
Kiowa
Tribe of Oklahoma v. Lewis,
777 F.2d 587, 590-92 (10th Cir. 1985).
ICWA
modifies Iowa case law and the provisions of Iowa Code chapter 232 concerning
child custody. R.L.F.,
437 N.W.2d at 601. However, we find nothing in ICWA which
expressly or impliedly preempts a state's error preservation rules. See
Fischer v. UNIPAC Serv.
Corp., 519 N.W.2d 793,
799 (Iowa 1994) (express preemption is explicitly stated in the language
of the statute); Brotherhood
of Maintenance of Way Employees v. Chicago & North Western,
514 N.W.2d 90, 93 (Iowa 1994) (implied preemption is implicitly contained
in the structure and purpose of the statute). Moreover, we
are mindful that to allow a party to make untimely challenges to prior
CINA proceedings would needlessly delay permanency for the children. We
view cases in which the statutory period for patience with a parent has
expired with urgency. In
re E.B.L., 501 N.W.2d
547, 551 (Iowa 1993); In
re R.C., 523 N.W.2d
757, 760 (Iowa App.1994); J.L.W.,
570 N.W.2d 778, 781 (Iowa App.1997). To have our procedural
rules preempted by federal law, would serve no greater purpose under ICWA.
Error preservation is part of this state's rules of trial and appellate
procedure, contributing to an orderly and timely disposition of controversies.
Our rules requiring litigants to preserve error for appeal
do not conflict with any provision of ICWA or frustrate congressional
policy. See
Barske v. Rockwell Int'l
Corp., 514 N.W.2d 917,
925 (Iowa 1994). Therefore, based on Iowa's requirement that
a party must preserve
error to have an issue reviewed on appeal, we find Amanda did not appeal
from any of the CINA proceedings and the time for appeal has passed. She
cannot challenge deficiencies in the CINA proceedings in this appeal.
Failure to object "operates as a waiver of any improprieties in the
testimony." In
re R.L.F., 437 N.W.2d
599, 602 (Iowa App.1989).
Triggering
the requirement of expert testimony under ICWA.
For
purposes of resolving when expert testimony is required in a CINA proceeding
under 25 U.S.C. § 1912(e), we assume arguendo
the State did not present such testimony. The State contends
the juvenile court had no duty to apply ICWA to the proceedings when the
tribe consistently failed to provide it with the necessary information
to determine whether the children met the definition of "indian child."
25 U.S.C. § 1903(4). To understand why expert
*582
testimony was not used, we review the procedural steps taken by the juvenile
court. The record clearly reveals notice was sent to the Rosebud
Sioux with multiple opportunities extended to the Tribe to present information
on the children's status. The provisions of ICWA do not apply
until the court determines the children are "Indian" as defined
in ICWA. "[I]t is incumbent upon the party asserting applicability
of ICWA to prove the child meets the criteria under ICWA." M.N.W.
and P.B.S.W., 577 N.W.2d
at 875 (citing
In re A.G.-G.,
899 P.2d 319, 321 (Colo.App.1995); In
re A.M., 235 Neb. 506,
455 N.W.2d 572, 573 (1990)). Indian tribes are the arbiters
of their membership. J.W.,
498 N.W.2d at 422. "Formal membership requirements differ from
tribe to tribe, as do each tribe's method of keeping track of its own
membership." In
re J.L.M., 234 Neb.
381, 451 N.W.2d 377, 387 (1990) (quoting
Application of Angus,
60 Or.App. 546, 655 P.2d 208, 212 (1982)).
Having failed to come forward with evidence the children qualified
as "Indian," Amanda cannot now complain the juvenile court did
not apply ICWA in the CINA proceedings. Until it is
established on the record the child meets one or both
of the definitional criteria, a parent or tribe does not
qualify for protection under ICWA. In
re Maricopa County Juvenile Action No. A-25525,
136 Ariz. 528, 667 P.2d 228, 232 (Ct.App.1983) (citing Angus,
655 P.2d at 210). The court continued proceedings on the
applicability of ICWA to give the tribe every opportunity to
present evidence, yet the tribe's response was minimal. Because the
court could not make a determination the children qualified as
"Indian," it could not determine whether ICWA applied. There can
be no violation of ICWA until the court determines it
applies to the proceedings. Id.
at 232-33, 136 Ariz. 528.
The
effect of defects in the CINA Proceedings on terminations.
Amanda does not challenge the
court's compliance with ICWA, including the testimony of the experts,
at the termination hearing. Rather, she asserts defects in
the CINA proceedings can invalidate the termination. We hold
they cannot.
The Supreme Court of Montana addressed this issue in In
re M.E.M., 209 Mont.
192, 679 P.2d 1241 (1984). The mother appealed termination
of her parental rights, asserting violations of ICWA in the temporary
custody proceedings required invalidation of both the temporary and permanent
custody proceedings. Id.,
209 Mont. 192, 679 P.2d at 1243. In discussing section 1914
of ICWA the court stated:
This
section provides for invalidation of an action which violates the
provisions of the Act. Assuming that the violations alleged by
appellant occurred, she would be entitled to invalidation of the
temporary custody proceedings. However, this section does not provide for
invalidation of a valid separate action because of an invalid
prior one.
Id.
The court also declined to address the alleged defects in
the prior proceedings. Id.
One year later, the Supreme Court of Alaska cited M.E.M.
at length to answer the question, "were any procedural or
jurisdictional errors rendered harmless by a subsequent, procedurally correct hearing?"
In
re D.E.D.,
704 P.2d 774, 782 (Alaska 1985). The court determined "even
if the procedural and jurisdictional defects asserted by R.S. existed
in the earlier temporary custody hearings, they were cured by
the subsequent, procedurally correct final dispositional hearing." Id.
We have followed Montana and Alaska in holding ICWA violations
in temporary custody (CINA) proceedings do not invalidate a subsequent
permanent custody (termination)
proceeding. In
re J.W.,
528 N.W.2d 657, 661 (Iowa App.1995). They are separate proceedings,
arising from separate petitions. We find no justification to vary
from that position.
We find, once the court determined
on April 21, 1997, ICWA applied, it correctly followed ICWA procedure.
The court allowed the tribe to intervene, but denied transfer
of the proceedings for good cause. See
25 U.S.C. § 1911(b). At the termination hearing,
the State presented testimony of Deb Kellen who specifically was recognized
by the court, without objection, as an expert witness for purposes of
the Indian Child Welfare Act. The expert's testimony "is to provide
the court with knowledge of the social *583
and cultural aspects of Indian life to diminish the risk of any cultural
bias." In re S.M.,
508 N.W.2d 732, 734 (Iowa App.1993) (quoting
In re N.L.,
754 P.2d 863, 867 (Okla.1988)). Although the Act does not
define "qualified expert witness," the Department of the Interior
issued guidelines for state courts. See
44 Fed.Reg. 67584 (1979).
[FN7] The guidelines are "not intended to have binding legislative
effect." Id.;
In re L.N.W.,
457 N.W.2d 17, 18 (Iowa App.1990). We agree with the court's
determination. In addition, Judy Yellowbank, a tracker aide
for DHS testified concerning Indian spiritual ceremonies and customs.
We conclude the court carefully followed the provisions of
ICWA in the termination proceeding. See
Holyfield, 490
U.S. at 50-51, 109 S.Ct. at 1609, 104 L.Ed.2d at 47-48 (stating the provisions
of
ICWA are to be strictly construed and applied).
FN7.
The guidelines identify three types of experts:
(i)
A member of the Indian child's tribe who is recognized
by the tribal community as knowledgeable in tribal customs as
they pertain to family organization and childrearing practices.
(ii)
A lay expert witness having substantial experience in the delivery
of child and family services to Indians, and extensive knowledge
of prevailing social and cultural standards and childrearing practices within
the Indian child's tribe.
(iii)
A professional person having substantial education and experience in the
area of his or her specialty.
44
Fed.Reg. 67,584, 67,593 (1979).
The evidence and testimony in
the record before us convinces us termination of Amanda's parental rights
is in the best interests of the children. She has continually
failed to participate in or complete treatment for her substance abuse.
She has not had personal visitation with her children since
February 1996. Amanda has not maintained appropriate contact
with DHS. Her abuse of alcohol and illegal drugs has led to abuse and
neglect of her children. Additionally, several of the children
suffer from the effects
of her alcohol usage during pregnancy. We affirm the termination
of Amanda's parental rights pursuant to Iowa Code sections 232.116(1)(c),
(d), (e), (g), (h), and (k). As did the juvenile court, we
find beyond a reasonable doubt that returning the children to Amanda's
custody and care is likely to result in serious emotional or physical
damage to the children. See
25 U.S.C. § 1912(f).
For the reasons set forth above, we affirm the juvenile
court's termination of Amanda's parental rights to Jacob, Elise, Emilia,
and Joshua.
AFFIRMED.
584 N.W.2d 577
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