as: 671 N.W.2d 531)
Court's decision is referenced in a "Decisions Without Published Opinions"
table in the North Western Reporter. See FI IA R
6.14(5) for rules regarding the use and citation of unpublished
Court of Appeals of Iowa.
the Interest of C.I.W.-V., Minor Child,
claim that trial court should have considered placing child with
extended-family was not proper subject for appellate review of order
terminating parental rights, insofar as father did not raise issue
at trial or provide any legal authority to support claim.
was not "Indian child" and thus, Indian Child Welfare Act
(ICWA) did not apply to proceedings to terminate parental rights,
despite letter from tribal council that child was eligible for
enrollment; previous application for enrollment was denied because child did
not meet blood quantum requirements, tribe's
policy had not changed regarding membership requirement, and mother had
not provided any additional evidence to indicate that child met
blood quantum requirement. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1903(4).
and convincing evidence supported determination to terminate mother's parental rights;
mother had substance abuse problem that she refused to acknowledge,
she continued to participate in abusive relationships, she failed to
maintain regular employment or provide any financial assistance, and mother's
response to services provided was so poor that it led
to waiver of further reunification services. I.C.A. § 232.116(1).
Appeal from the Iowa District Court for Woodbury County, Brian
L. Michaelson, Associate Juvenile Judge.
The mother and father appeal from the juvenile court's order
terminating their parental
rights to their daughter. AFFIRMED.
William Binkard, South Sioux City, Nebraska, for appellant-mother.
Richard Moeller, Sioux City, for appellant-father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General,
Thomas S. Mullin, County Attorney, and Dewey Sloan, Assistant County
Attorney, for appellee-State.
Marchelle Denker, Sioux City Juvenile Office, Sioux City, guardian ad
litem for minor child.
Considered by SACKETT, C.J., and HUITINK and VOGEL, JJ.
Alita and Antonio, the mother and father of Claudia, appeal
from the juvenile court's order terminating their parental rights to
their daughter. The juvenile court terminated Alita's parental rights under
Iowa Code sections 232.116(1)(d), (e), (g), and (h) (2003).
[FN1] The juvenile court terminated Antonio's parental rights under sections
232.116(1)(d), (e), and (h). The mother contends (1) the court
erred in finding, by clear and convincing evidence, the State
proved all the elements of any of the statutory grounds
for termination, and (2) the court erred in finding the
child was not an "Indian child"
within the terms of the Indian Child Welfare Act, 25
U.S.C. §§ 1901-1963
(2002) (ICWA). The father contends his family members never were
"afforded the opportunity to provide a home for the child."
The termination order cites to the 2001 Code as amended,
but the petition, filed in 2003, clearly refers to the
subsections in effect at that time. It is clear from
the termination order that the court based its termination on
the 2003 sections.
facts and proceedings.
Twenty-one-year-old Alita is the unmarried mother of Maricella, born in
September 1999, Claudia, born in August 2001, and Chico, born
in December 2002. Maricella tested positive for controlled substances at
birth. Alita's parental rights to Maricella were terminated in April
2001 and she is not involved in this appeal. Chico
was removed from Alita's care at birth, adjudicated to be
in need of assistance, and is in the custody of
the Department of Human Services. He is not involved in
this appeal. Antonio is the father of Claudia, but not
Maricella or Chico.
Alita is a member of the Winnebago Tribe in northeastern
Nebraska. She has had a long history of services with
the Iowa Department of Human Services (DHS) for chemical dependency.
Her two-year tumultuous relationship with Antonio was marked
by domestic abuse, substance abuse, several separations, and Antonio's assaults
on Alita, resulting in a no contact order.
[FN2] Her second child, Claudia, came to the attention of
DHS in March 2002 when Antonio brought her to his
probation officer claiming Alita had told Antonio to "take the
child" and that he wanted to give Claudia to DHS.
Alita and Antonio had had an altercation outside Antonio's residential
treatment facility and Alita left seven-month-old Claudia on the trunk
of Antonio's car. Claudia was removed from her parents' custody
in May 2002 based on a finding she was imminently
likely to be abused or neglected. She was placed with
the same family that had custody of her half-sister, Maricella.
In early 2003, prior to the termination hearing, Alita was
hospitalized after being assaulted by Antonio. She was still taking
strong pain medication (Hydrocodone) for internal injuries on the morning
of March 17, the hearing on the Tribe's petition for
After Claudia's removal in March, Alita was offered additional services
to help correct parenting inadequacies, substance abuse problems, and other
behavior, such as prostitution, that had contributed to Claudia's removal
and the termination of Alita's parental rights to Maricella. Alita
was resistant to and uncooperative with services offered. She was
verbally aggressive and belligerent
toward service providers, leading to a finding of aggravated circumstances
in August 2002. Based on that finding, the court waived
reasonable efforts at reunification.
Alita exercised supervised visitation with Claudia. She did not provide
for Claudia financially and failed to obtain and maintain employment.
Alita received a substance abuse assessment, but did not follow
through with recommended services. She refused to provide UAs. A
psychosocial evaluation noted Alita was in denial about the seriousness
of the choices she makes to abuse drugs, to participate
in illegal activity, to choose co-dependent and domestically violent relationships,
and not to comply with services. At the termination hearing,
she admitted violating the no contact order with Antonio and
using methamphetamine regularly in the month just prior to the
Antonio has a long history of drug abuse, criminal behavior,
and abusive relationships. At the time of the termination hearing
he was incarcerated. His paternity of Claudia was determined by
the court following blood tests.
In early 2002 Alita applied to have Claudia enrolled in
the Rosebud Sioux Tribe in South Dakota. That application was
denied in April because neither parent was enrolled in the
tribe and Claudia did not have a blood degree of
at least one-fourth Sioux blood. Alita also applied to have
Claudia and her younger half-brother, Chico, enrolled in the Winnebago
Tribe. That application lists Alita's blood quantum as thirteen-thirty-seconds (13/32)
Winnebago. The applications
were denied because the children did not have the required
one-fourth Indian blood quantum. Celeste Honomichl wrote to the Woodbury
County Attorney's office in April 2002 concerning the CINA proceedings
involving Claudia. She stated,
Winnebago Tribe of Nebraska will not be intervening in the
Child Custody Proceedings involving Claudia.... The mother, Alita ... is
an enrolled member of the Winnebago Tribe but her daughter,
Claudia is not eligible for enrollment. She doesn't meet the
membership criteria of meeting 1/4 degree of Winnebago Indian blood.
the Indian Child Welfare Act is not applicable for the
Winnebago Tribe of Nebraska.
No appeal, as provided for in tribal law, was taken
from this denial.
On December 2, 2002 the State petitioned to terminate Alita
and Antonio's parental rights. A hearing was set for February
20, 2003. On January 20 the Winnebago tribal council held
a regular meeting. The notes of the meeting include the
Child Welfare Act (I.C.W.A.) Program.
Council went into executive session (unreported) for one hour thirty-five
Council consensus for the involved children's family and Presenting Officer
to meet with Enrollment Staff to possibly answer blood quantum
On February 18 John Blackhawk, Chairman of the Council, sent
a letter to the juvenile court concerning Claudia and Chico
stating, "[p]ursuant to the above referenced children they are eligible
for enrollment." On February 19 the Winnebago Tribe filed a
renewed motion to intervene. Hearing on the motion was held
on February 20 and the morning of March 17. On
March 14 Alita filed new applications for enrollment in the
Winnebago Tribe for Claudia and Chico. The applications did not
provide any new evidence to prove either child met the
required one-fourth blood quantum for enrollment in the Tribe.
At the close of the March 17 hearing, having reviewed
the Tribe's exhibits and the testimony from the February 20
hearing, the court denied the Tribe's motions to intervene. After
a lunch break, the court convened the combined proceedings concerning
Claudia and Chico. For Claudia, the court had a review
and permanency hearing and a hearing on the petition to
terminate parental rights. For Chico, the court held a dispositional/aggravated
In its order filed April 2, 2003 the court found
clear and convincing evidence
supported the allegations in the petition for termination. It concluded
that because neither parent could provide the permanency and stability
necessary, it was in Claudia's "best interests that the impediments
to her forming new family relationships should be swept away."
The court terminated Alita's parental rights to Claudia under Iowa
Code sections 232.116(1)(d), (e), (g), and (h). It terminated Antonio's
parental rights under sections 232.116(1)(d), (e), and (h). Both parents
Antonio states one claim on appeal, that the "law does,
or should, recognize the importance and best interests of the
children of placing them with extended family members."
Alita claims the court erred (1) in using a "clear
and convincing evidence" standard in finding the State proved the
elements of any ground for termination and that termination was
in Claudia's best interest, and (2) in finding Claudia was
not an "Indian child" under ICWA, thereby denying the Tribe's
motion to intervene and thereby availing itself of the "clear
and convincing" standard instead of the "beyond a reasonable doubt"
standard required by ICWA.
The State filed a statement of nonresponse, deferring to the
record and the juvenile court's order.
We ordered briefing on the issue of the applicability of
the Indian Child Welfare
Iowa R.App. P. 6.154(1).
We review terminations of parental rights de novo. In
652 N.W.2d 144, 147 (Iowa 2002). We review the facts
as well as the law and adjudicate a parent's rights
306 N.W.2d 743, 745 (Iowa 1981). "We only need to
find grounds to terminate parental rights under one of the
sections cited by the district court in order to affirm
its ruling." In
649 N.W.2d 18, 19 (Iowa Ct.App.2002). "Our review of a
denial of a motion to intervene is for the correction
of errors at law." In
619 N.W.2d 340, 342 (Iowa 2000) (citing In
558 N.W.2d 400, 403 (Iowa 1997)).
Antonio does not challenge any of the grounds for termination cited by
the juvenile court. He states error was not preserved on his relative-placement
claim and neither cites nor argues any legal authority in support of his
claim. Accordingly, we do not address his claim and affirm the termination
of his parental rights. See
In re J.D.B., 584 N.W.2d
577, 581 (Iowa Ct.App.1998) (requiring that errors be preserved to be
addressed by appellate courts); Iowa Rs.App. P. 6.151(2)(e
) ("The petition should include supporting statutes, case law, and
other legal authority for each issue raised ..."), 6.14(c
) ("Failure in the brief to state, to argue or to cite authority
of an issue may be deemed waiver of that issue.").
We address Alita's claims in reverse order because our resolution
of the applicability of the Indian Child Welfare Act claim
controls our resolution of the burden-of-proof claim.
A. Applicability of
ICWA. The crucial determination
to be made in this case is whether or not Claudia is an "Indian child"
as defined in ICWA. 25 U.S.C. § 1903(4).
[FN3] The provisions of ICWA do not apply until the court determines the
children are "Indian." "[I]t is incumbent upon the party
asserting applicability of ICWA to prove the child meets the criteria
under ICWA." In
re M.N.W., 577 N.W.2d
874, 875 (Iowa Ct.App.1998) (citing In
re A.G.-G., 899 P.2d
319, 321 (Colo.Ct.App.1995); see
also In re A.M., 235
Neb. 506, 455 N.W.2d 572, 573 (Neb.1990)). Indian tribes are the arbiters
of their own membership. In
re J.W., 498 N.W.2d
417, 422 (Iowa Ct.App.1993); In
re A.E., 749 P.2d 450,
452 (Colo.Ct.App.1987). "Formal membership requirements differ from
tribe to tribe, as do each tribe's method of keeping track of its own
re J.D.B., 584 N.W.2d
577, 582 (Iowa Ct.App.1998) (quoting Application
of Angus, 60 Or.App.
546, 655 P.2d 208, 212 (Or.Ct.App.1982)). Without a conclusive determination
by a tribe, the juvenile court must determine if a child is an "Indian
child." In re A.G.
G., 899 P.2d at 322.
Section 1903(4) provides:
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
From our review of the exhibits in the record before
us, we conclude the Winnebago Tribe has established the following
provisions pertinent to our review of whether or not Claudia
is eligible for enrollment in the Tribe. Article II, section
1 as amended of the Constitution and Bylaws of the
Winnebago Tribe of the Winnebago Reservation in the State of
Nebraska provides in pertinent part:
membership of the Winnebago Tribe of Nebraska shall consist as
All children born to a member of the Winnebago tribe
of Nebraska ... provided said children possess at least one-fourth
(1/4) degree Winnebago Indian blood.
Winnebago Const. art. II, § 1(c)
(1963). The Constitution and Bylaws may be amended by a
majority vote of tribal members and approval of the Secretary
of the Interior. Winnebago Const. art IX. Applications for enrollment
are made to a five-member enrollment committee appointed by the
tribal council. Winnebago Tribe Code §§ 5-109,
5-101. The enrollment committee accepts or rejects
applicants by motion of the committee. Id.
at § 5-109(3).
A rejected applicant may appeal to the tribal council. Id.
at § 5-109(4).
The tribal council gives final approval to the decision of
the enrollment committee. Id.
at § 5-110(1).
The council also decides appeals made by rejected applicants. Id.
at § 5-110(3).
The blood quantum determination is made using the degree of
Winnebago Indian blood shown on the base rolls of the
at § 5-117.
Children of a member who are born out of wedlock
are deemed to possess one-half (1/2) of the total degree
of Winnebago Indian blood possessed by the parent. Winnebago Tribe
General Enrollment Ordinance No. 2, § 7.
The burden of proof is on the applicant. Id.
at § 4.
A member of the Tribe may request an increase in
their blood quantum if they believe it is in error
by submitting a written request with all necessary documentation. Winnebago
Tribe Code § 5-118.
The enrollment committee approves or disapproves the request and forwards
approved requests to the tribal council for final approval. Id.
at § 5-118.
At the February 20, 2003 hearing on the Tribe's motion
to intervene, Celeste Honomichl, ICWA Representative for the Tribe, testified
the historical position of the Tribe concerning applicants for enrollment
was that they were not eligible until they had completed
the application process and met the required blood quantum for
enrollment. Then, in response to questions concerning the Tribe's position
on Claudia's eligibility, she noted,
it was brought in front of the tribal council on
cases that we weren't able to intervene on because of
the blood quantum, meeting the one-fourth criteria. So the tribal
council took a different stance on that and as of
a couple weeks ago, ... [the] tribal council ruled that
if, based on decendency, if the parent, one of the
parents is on the tribal rolls and a member of
the tribe, on the roll, then any children of them
is eligible for enrollment pending the enrollment procedures.
When asked for more specifics on any resolutions of the
council, changes in the Constitution and Bylaws of the Tribe,
or changes in enrollment application procedures, Ms. Honomichl claimed a
lack of knowledge and stated the Tribal Council would have
the answers. She testified she believed if the Tribe was
allowed to intervene, it would petition to transfer the case
to the tribal court because the Council has "taken the
stance that there are to be no terminations in tribal
court." The court suspended the hearing on the motion to
intervene until such time as the council chairman could come
to testify. The court stated, "the Court needs to get
to the bottom of what's going on here, because quite
frankly, I'm somewhat suspicious as to what's happening here ..."
Arrangements were made for John Blackhawk, Chairman of the Tribal
Council to testify. The hearing on the Tribe's motion to
intervene reconvened the morning of March 17.
Mr. Blackhawk testified Alita had filed new applications for enrollment
and Chico just days before the hearing. He stated the
requirements that a child (1) have a parent who is
a member of the Tribe and (2) have one-quarter Winnebago
Indian blood had not been changed. He indicated the process
to amend the tribal documents to change the required blood
quantum would require a vote of the whole Tribe and
take at least six months. When the letter stating Claudia
was eligible for enrollment was written, Alita had not yet
filed a new application for Claudia's enrollment. The previous application
had been denied because Claudia did not have the required
blood quantum of Winnebago Indian blood. When asked whether Claudia
and Chico meet the eligibility requirements for enrollment based on
the documentation to date, he replied, "[e]nrollment makes that determination.
I don't make that determination." Although he testified Alita claimed
there was an error in her mother's blood quantum, he
agreed Alita had not provided any documentation for that claim
and her mother had not requested an increase in her
blood quantum. Despite the previous denial of Claudia's application for
enrollment, based on an insufficient blood quantum (13/64 = 20.3%)
and the lack of any new documentation proving the previous
calculation was incorrect, Mr. Blackhawk maintained Claudia was eligible for
enrollment pending investigation of her application.
The court admitted into evidence the new application forms submitted
by Alita. The cover page lists the following requirements that
are applicable to the case before us:
Has a parent who is a member of the Winnebago
Tribe of Nebraska or had a parent who was a
member of the Winnebago Tribe of Nebraska at the time
of his or her birth.
Is at least one quarter (1/4) degree Winnebago Indian blood.
The form also notes the burden of proving eligibility for
enrollment and of supplying documentation is on the applicant. Alita
listed her blood quantum in Claudia's application as 13/32, the
same as in the 2002 application. No documentation was included
to demonstrate any basis for finding Claudia's blood quantum was
higher than calculated in the previous application and that it
meets the one-quarter minimum. The application also notes Antonio is
not a member of any tribe. Based on the Tribe's
own governing documents, Claudia would be deemed to have 13/64
(20.3%) degree of Winnebago Indian blood.
At the close of the hearing, the court stated, "I
haven't heard anything from the witness stand or through the
documentation that would lead me to believe that the Court
should sustain the motions to intervene." The court denied the
motions to intervene and proceeded to the termination and dispositional/aggravated
Alita argues the February 18, 2003 letter stating Claudia and
Chico are eligible for enrollment demonstrates the court erred in
denying the motions to intervene. We disagree. At the time
the letter was written, Alita had not filed new applications
for enrollment. The only previous application had been denied for
insufficient blood quantum. Alita did not file an appeal from
that denial, as provided for in the Tribe's Code. Winnebago
Tribe Code §§ 5-109,
5- 110. The minutes of the Tribal Council allegedly supporting
the claim the Council had changed the application procedure so
that applicants are deemed eligible pending determination of their eligibility
contains nothing to indicate any resolution was passed, what the
claimed resolution contained, or that any other governing document was
amended. It merely indicates a Council "consensus" to meet with
the family and enrollment staff to discuss blood quantum questions.
Although tribes are the arbiters of their own membership, no
documentation was provided to the court that the Winnebago Tribe's
governing documents had been changed or that any change was
in process. Alita did not provide any credible documentation to
prove Claudia is eligible for enrollment in the Winnebago Tribe.
Without such proof, Claudia does not meet the definition of
"Indian child" in ICWA. 25 U.S.C. § 1903(4).
Consequently, ICWA does not apply and the juvenile court correctly
denied the Tribe's motions to intervene. We find no error
and affirm the decision of the juvenile court.
Burden of proof and termination of parental rights.
Having determined ICWA does not apply, we conclude the juvenile court
correctly used a "clear and convincing" evidence standard in
evaluating the sufficiency of the evidence to terminate Claudia's parents'
rights. As noted above, Antonio has not challenged any of the grounds
upon which the court terminated his parental rights
and we affirm that termination.
Claudia contends clear and convincing evidence does not support any
of the statutory grounds upon which the court terminated her
parental rights. From our de novo review of the record,
we find clear and convincing evidence supports the termination.
[FN4] Alita has had a substance abuse problem for several
years. Although she claimed at the termination hearing that she
now was ready and willing to address that problem and
to have her children returned to her care, she admitted
regular use of methamphetamine during the month preceding the termination
hearing. Her response to services and service providers was so
poor it led to waiver of reasonable efforts based on
aggravated circumstances. See
Iowa Code § 232.102(12).
She continues to participate in abusive relationships, even if it
means violating a no contact order. She has not maintained
regular employment. Alita has not provided for her children financially.
Her past performance as a parent and her past response
to services give us an indication of her ability to
care for her children in the future and how she
would respond to services. See
In re Dameron,
306 N.W.2d 743, 745 (Iowa 1981).
We note that, even if we had concluded ICWA applied
in Claudia's case, we would affirm the termination because we
find evidence beyond a reasonable doubt supports termination under Iowa
Code sections 232.116(1)(d)
Alita has been offered services to correct the circumstances which
led to Claudia's adjudication but they continue to exist despite
the offer or receipt of services. Iowa Code § 232.116(1)(d).
In the six months prior to the termination, Alita was
unwilling to make the necessary changes in her behavior to
have regular visitation with Claudia. She did not provide for
Claudia financially. Alita did not terminate her relationship with abusive
partners. She did not maintain significant and meaningful contact with
Claudia or make reasonable efforts to resume her care. Iowa
Code § 232.116(1)(e).
Although Alita claims she has stopped playing a game concerning
services and now is willing to participate and change her
lifestyle, we find her actions speak louder than her words
and an additional period of rehabilitation would not correct the
situation that led to Claudia's removal. Iowa Code § 232.116(1)(g).
Based on the lack of change and Alita's own admission
she continues her drug abuse and participation in abusive relationships,
even in the face of termination of her parental rights,
we find Claudia could not be returned to her care.
Iowa Code § 232.116(1)(h).
For the foregoing reasons, we affirm the termination of Alita's
parental rights on all grounds cited by the juvenile court.