Opinion
No. 4-452 / 04-0747.
July 14, 2004.
Appeal from the Iowa District Court for Polk County, William Price, District Associate Judge.
A mother appeals from the order terminating her parental rights to her two children. AFFIRMED.
Jane White of Parrish Kruidenier Moss Dunn Boles Gribble Cook, L.L.P., Des Moines, for appellant.
Thomas Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, John Sarcone, County Attorney, and Jon Anderson, Assistant County Attorney, for appellee-State.
Victoria Meade, Des Moines, guardian ad litem for minor children.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Shirley is the mother of Brianna, born December 24, 1993, and Christopher, born February 21, 2001. After police were called to Shirley's home in February of 2002 they observed her to be under the influence of drugs. Shirley admitted she had used methamphetamine the previous night and regularly used marijuana. Consequently, the children were adjudicated in need of assistance (CINA) pursuant to Iowa Code sections 232.6(6)(c)(2) and (n) (2001). Brianna and Christopher were later removed from Shirley's care and placed with relatives. During a subsequent permanency hearing, Shirley claimed to be a descendant of the Cherokee Nation. The county attorney accordingly followed the notice procedure as provided in the federal Indian Child Welfare Act (Federal ICWA), 25 U.S.C. §§ 1903 et seq. (2002), and the Iowa Indian Child Welfare Act (Iowa ICWA), Iowa Code chapter 232B (Supp. 2003). The Cherokee Nation, however, determined the children would not be considered "Indian Children."
On July 25, 2003 the State filed a petition seeking to terminate Shirley's parental rights. At the hearing on the petition, an issue arose regarding the children's eligibility for enrollment in the Comanche Nation. Judge William Price contacted a representative of the Comanche Nation, and later received notification from the tribe that the children would not be considered "Indian Children." Following the hearing, the court entered an order terminating Shirley's parental rights under sections 232.116(1)(d), (f) and (h) (2003). Shirley appealed.
On appeal, this court accepted Shirley's argument the juvenile court did not follow the procedural notice requirements for determining whether the children were "Indian Children" pursuant to the Federal and State ICWA. We therefore reversed the termination and remanded "to the juvenile court to follow the strict notice requirements of the Iowa ICWA and the federal ICWA." In re C.H. and B.M., No. 03-1966 (Iowa Ct.App. February 11, 2004).
Upon remand, the State complied with the notice requirement, and again received information from the Comanche Nation that the children were not eligible for membership and that the tribe would not intervene. Shirley then maintained the court was required to hold a full hearing on the merits of the termination of parental rights claim because the court lacked jurisdiction due to the failure to strictly comply with the notice requirements of Iowa Code section 232B.5(4). The juvenile court disagreed, and entered a new order terminating Shirley's parental rights based on the record made at the previous hearing. Shirley appeals.
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the children. In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). While the district court terminated the parental rights on more than one statutory ground, we will affirm if at least one ground has been proved by clear and convincing evidence. In re R.R.K., 544 N.W.2d 274, 276 (Iowa Ct.App. 1995).
Shirley first contends the court erred in concluding it was not required, upon remand, to hold a new, full evidentiary hearing on the merits of the termination petition. Citing In re J.W., 498 N.W.2d 417 (Iowa Ct.App. 1993), she argues ICWA is a jurisdictional statute, and thus deprived the court of the authority to even hold its termination hearing upon which it later based the order.
The purpose of the ICWA is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. In re B.M., 532 N.W.2d 504, 506 (Iowa Ct.App. 1995). We conclude the court's reliance on the record made in the earlier evidentiary hearing did not frustrate the purpose and letter of the ICWA. No purpose would have been served by holding a new hearing. It was conclusively determined the children were not Indian Children as contemplated by ICWA, and Shirley does not dispute this fact. Shirley was thus clearly not prejudiced by the court's procedure in this case, and we find no error in the court's actions.
Shirley next maintains clear and convincing evidence does not support the termination under sections 232.116(d), (f), and (h). In particular, she asserts that at the time of trial she was drug free, had a stable lifestyle, and through services had corrected the circumstances which led to the adjudication. On our de novo review of the record, we conclude the court properly terminated Shirley's parental rights under sections 232.116(1)(f) (Brianna is four or older, has been adjudicated in need of assistance, has been removed for at least twelve months, and cannot be returned to parent's custody) and (h) (Christopher is three or younger, has been adjudicated in need of assistance, has been removed for six months, and cannot be returned).
As noted, the children were first removed after police officers were called to the family home and discovered Shirley was under the influence of drugs, hallucinating, and incoherent. Shirley admitted to methamphetamine and marijuana use. Since the children's subsequent removal, Shirley failed to consistently provide urinalyses when requested, she tested positive for methamphetamine, and admitted to a relapse. Her ability to remain free of drugs remains an issue.
Despite the receipt of numerous services, Shirley has continued to make questionable choices throughout this case. Despite the directions of her social worker, she has had contact and allowed the children to have contact with Deng Baccam, who is the biological father of Christopher, and with members of Baccam's family. Baccam has a history of violence, and is a man who caused great fear in Brianna. The evidence adduced at the termination hearing established Shirley had been impregnated by a man with an extensive criminal record whom she met in drug rehabilitation. Shirley's choice of lifestyle, questionable decisions, and inappropriate parenting practices are simply inconsistent with safe and effective parenting of the two children who are the subject of this case. The State has given Shirley sufficient time to prove her ability to parent. See In re L.L., 459 N.W.2d 489, 495 (Iowa 1990) ("Children simply cannot wait for responsible parenting.").
Finally, Shirley argues the trial court's "consistent refusal to grant" her motions and its refusal to allow a full evidentiary hearing demonstrates Judge William Price's bias, such that he should be recused from further proceedings upon remand In light of our determination the court correctly terminated Shirley's parental rights, we need not address this issue.