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(Cite
as: 457 N.W.2d 17)
Court
of Appeals of Iowa.
In
re L.N.W., A Minor Child.
Appeal
of C.W., Mother.
No.
89-1377.
March
27, 1990.
Social
worker who had bachelor of science degree, had taken seminar
on Indian Child Welfare Act (ICWA), had throughout her life
been associated with Native Americans and had affiliated herself with
Indian Youths of America group was a "qualified expert witness"
within meaning of ICWA in proceeding to terminate parental rights
of Native American mother. Indian Child Welfare Act of 1978,
§§ 2-403,
102(f), 25 U.S.C.A. §§ 1901-1963,
1912(f).
State
made active but unsuccessful efforts to provide Native American mother
and her family with remedial services and rehabilitative programs designed
to prevent breakup of family, as was prerequisite to terminating
mother's parental rights under ICWA. Indian Child Welfare Act of
1978, §§ 2-403,
102(d), 25 U.S.C.A. §§ 1901-1963,
1912(d).
*17
Robert J. Rehan of Vakulskas & Hoffmeyer, Sioux City, for
appellant.
Thomas J. Miller, Atty. Gen., Gordon E. Allen, Deputy Atty.
Gen., and Valencia Voyd McCown, Asst. Atty. Gen., for appellee,
the State of Iowa.
Considered by OXBERGER, C.J., and DONIELSON and HABHAB, JJ.
HABHAB, Judge.
Appellant, C.W., appeals from juvenile court order terminating her parental
rights.
[FN1] We affirm.
The child in question, L.N.W., is a girl born on
May 9, 1988. On May 29, 1988, L.N.W. was removed
from the physical care of C.W. and placed in emergency
foster care. On that date, C.W. was arrested for public
intoxication and child endangerment after leaving the care of L.N.W.
to other bar patrons while C.W. became inebriated.
*18
L.N.W. has remained in foster care since that time. In
July 1988, L.N.W. was adjudicated a child in need of
assistance.
[FN2] The State subsequently filed a petition for termination of
parental rights of C.W. and T.K. Following a hearing on
the petition for termination of parental rights, the juvenile court
terminated the rights of both parents. In its ruling, the
juvenile court found the Indian Child Welfare Act (ICWA), 25
U.S.C. §§ 1901-1963
(1982), applicable to the case.
[FN3] C.W. raises two issues on this appeal: (1) whether
the State satisfied the ICWA's requirement of including the testimony
of a "qualified expert witness" in the termination proceeding,
and (2) whether the State made sufficient active efforts to
provide C.W. with remedial services and rehabilitative programs.
Appellate review of termination proceedings is de novo. In
re W.G.,
349 N.W.2d 487, 491 (Iowa 1984), cert.
denied,
469 U.S. 1222, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985).
We give weight to the findings of fact of the
juvenile court, especially when considering the credibility of witnesses, but
we are not bound by those determinations. Id.
at 491-92. We note at the inception that the attorney
and guardian ad litem for the minor child joins the
appellee-State of Iowa in support of the juvenile court's order
terminating C.W.'s parental rights.
I.
The
first issue we need address concerns C.W.'s argument that the State failed
within the meaning of the Indian Child Welfare Act to present the testimony
of a qualified expert witness at the termination proceeding. To
meet this requirement, the State presented the testimony of social worker
Alma Schmitt. Thus, appellant's argument centers on whether
Ms. Schmitt is a qualified expert witness within the meaning of that act.
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)
(1982). This section requires the juvenile court to consider the
testimony of a qualified expert witness prior to termination of
the parental rights of the child's parent or Indian custodian.
This testimony "is to provide the court with knowledge of
the social and cultural aspects of Indian life to diminish
the risk of any cultural bias." In
re N.L.,
754 P.2d 863, 867 (Okl.1988). The term "qualified expert witness"
is not statutorily defined. While the Department of Interior issued
guidelines for state courts, these guidelines "are not published as
regulations because they are not intended to have binding legislative
effect." 44 Fed.Reg. 67584 (1979).
Ms. Schmitt is a social worker employed by the Department
of Human Services for over two and one-half years. She
has a bachelor of science degree in social work and
has taken a seminar on ICWA. Additionally, Ms. Schmitt has
throughout her life been associated with Native Americans and has
affiliated herself with the Indian Youths of America group. Approximately
one-third of Ms. Schmitt's usual case load of forty-five to
fifty cases normally involve Native American households.
The juvenile court made a specific factual finding as to
Ms. Schmitt's qualification to be a qualified expert witness under
ICWA. Upon our de novo review,
we find no abuse of discretion in this determination. See
In re T.J.J.,
366 N.W.2d 651, 655 (Minn.Ct.App.1985) (Court found no abuse in
discretion in finding that two psychologists were qualified expert witnesses
where both psychologists had taken course work in Native American
culture and one of the psychologists was experienced in working
with Native American youth.); In
re K.A.B.E.,
325 N.W.2d 840, 844 (S.D.*19
1982) (Social worker with B.A. in social work and who
had regular contract with Native Americans and director of youth
shelter which had approximately 30% Native Americans as residents were
both found to be qualified expert witnesses.). We find the
requirement of 25 U.S.C. section 1912(f), pertaining to qualified expert
witness testimony, to have been met by the testimony of
Ms. Schmitt.
II.
Appellant also argues that
the State failed to show that active efforts were made to provide her
with remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family. ICWA provides:
Any
party seeking to effect a foster care placement of, or
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)
(1982). We find appellant's argument on this issue to
be meritless. The record shows conclusively that the State made
a number of efforts at providing C.W. with remedial services
and rehabilitative programs designed to prevent the breakup of her
family. We note "these efforts and their futility must be
shown beyond a reasonable doubt." Matter
of Kreft,
148 Mich.App. 682, 384 N.W.2d 843, 848 (1986) (citing
In re Morgan,
140 Mich.App. 594, 604, 364 N.W.2d 754, 758 (1985)).
C.W. has a long history of alcoholism and drug abuse.
After L.N.W. was removed, C.W. was offered a number of
services aimed at helping C.W. develop appropriate parenting skills and
deal effectively with her substance abuse problems. These efforts were
rebuffed by C.W.
When L.N.W. was removed from the custody of her mother,
she was nineteen days old. The event precipitating her removal
was the mother's arrest for public intoxication and child endangerment.
The evidence is undisputed that C.W. was arrested at Ingall's
Tap, based upon reports that C.W. had L.N.W. with her
while intoxicated, apparently leaving the care of L.N.W. to the
patrons.
After the child's removal, a number of services were offered
to the mother. Assistance was offered to develop C.W.'s parenting
skills and deal with her alcohol dependency. In June of
1988, C.W. was scheduled for psychiatric and psychological evaluation. Transportation
was also offered to C.W. The evaluation reveals that she
was in need of extensive counseling and that she suffers
from an antisocial personality disorder. Attempts were made to
enlist the assistance of C.W.'s extended family in encouraging C.W.
to receive treatment for her substance abuse problem. All efforts
have been in vain.
Supervised visitation with L.N.W. was also offered to C.W., but
those visits were inconsistent and C.W. has recently shown little
interest in visiting her child. When we review the entire
record, it reveals that prior to initiating termination proceedings, continued
efforts were made to keep the family together as required
by the State and the Indian Child Welfare Act. There
is significant and competent testimony that the Department had exhausted
all resources and there was nothing more that could be
offered. As a further indication of C.W.'s lack of interest
in her child, the record reveals that during the course
of the termination proceedings C.W. left the courtroom without any
explanation.
The trial court was in the better position to evaluate
the credibility of the witnesses. The trial court found that
C.W. "has been offered a myriad of services in an
attempt to reunify her with [L.N.W.], however, all service efforts
have been unsuccessful due to [C.W.'s] lack of cooperation." The
trial court further found that "there is no evidence of
any bonding between [L.N.W.] and [C.W.]."
A home study was conducted on C.W.'s extended family home
prior to the hearing on the petition for termination of
parental rights. The home study was prepared
with the view in mind that the primary caretakers *20
of L.N.W. would be C.W.'s brother, E.W., and E.W.'s girlfriend,
L.F. E.W. and L.F. have a history of arrest, alcohol,
and family dysfunction. E.W. and L.F. inquired from the Department
as to their rights in receiving custody of L.N.W. Before
the proceedings could be completed as to their fitness to
be caretakers, they had moved to Minnesota to set up
their home. When the paperwork was initiated to complete the
home study in Minnesota, the family moved back to Sioux
City and resided with C.W. In fairness, E.W. and L.F.
have expressed a genuine concern about the future of L.N.W.
However, because of the severity of their history, the Department
was unable to pass favorably on their home study report.
We find this record more than sufficient to meet the
requirements of 25 U.S.C. section 1912(d). We do not necessarily
disagree with the appellant's contention that the party seeking termination
must also demonstrate that services were also offered to the
extended members of the Native American family in addition to
the parent or guardian of the Native American child, but
we need not rule on that question for it is
clear to us after reviewing the entire record that services
were offered to C.W.'s family as a whole.
Finally, we note that the Department recommended that E.W.'s family
"be allowed to contact the adoption unit at this Department
to make known their desire to adopt this child." We
believe this recommendation is in keeping with
the spirit of the Indian Child Welfare Act. We trust,
without forming an opinion as to whether the adoption should
be allowed, that the recommendation will be complied with.
AFFIRMED.
FN1.
The putative father of L.N.W., T.K., made no appearance at
the termination hearing.
FN2.
Although the Omaha Indian Tribe was notified of these proceedings
and invited to intervene, they have not as of this
date done so.
FN3.
The State does not dispute the applicability of ICWA in
this case.
457 N.W.2d 17
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