(Cite as: 671 N.W.2d 533)

(The 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 See FI IA R 6.14(5) for rules regarding the use and citation of unpublished opinions.)

Court of Appeals of Iowa.

In the Interest of C.L.B., Jr., Minor Child,

A.W., Mother, Appellant.

No. 03-1097.

Sept. 10, 2003.

William Binkard, South Sioux City, for appellant Mother.

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, guardian ad litem for minor child.



**1 Alita, an enrolled member of the Winnebago Tribe of Nebraska and a young mother of three children, abused illegal drugs for six years. Ultimately, her parental rights to all three children were terminated. This appeal focuses on the third and youngest child, Chico, born in December 2002. A companion case filed on this date addresses Alita's parental rights to her second child, Claudia. See In re C.I.W.V., No. 03-0681 (Iowa Ct.App. September 10, 2003.)

In both cases, a fighting issue before the juvenile court was whether the children were enrolled members of their mother's tribe. A finding that they were tribal members would have imposed upon the State the obligation to prove its case for termination "beyond a reasonable doubt" rather than by "clear and convincing" evidence, or may have justified transfer of the case to a tribal court. See In re B.M., 532 N.W.2d 504, 505 (Iowa Ct.App.1995); cf. In re S .J., 620 N.W.2d 522, 524 (Iowa Ct.App.2000) (prescribing clear and convincing burden of proof in non-Indian Child Welfare Act (ICWA) case).

The juvenile court concluded the children were not members of the tribe. We agree with the court's ruling for the reasons stated in our companion case. In addition, we adopt the following fact finding of the juvenile court on this issue:

[T]here has been no showing that Chico has a greater Indian blood quantum than his two half-sisters, who were rejected by the Tribe's enrollment committee. Therefore, this Court finds that the Tribe has failed to determine that ICWA applies to the children in question.

 On our de novo review of the record, we also agree with the juvenile court's decision to terminate Alita's parental rights to Chico under Iowa Code Section 232.116(1)(g) (authorizing termination where parent lacks ability or willingness to respond to services and additional period of rehabilitation would not correct situation). [FN1]

FN1. The court also terminated her rights pursuant to Iowa Code sections 232.116(1)(d) and (l) but we may affirm on any single ground cited by the court. See In re R.K., 649 N.W.2d 18, 19 (Iowa Ct.App.2002).

Chico was removed from his mother at birth. At the time of the termination hearing, Alita had yet to enter an inpatient drug rehabilitation program and was turned away from an outpatient facility after appearing late for her first appointment. She was living in her sister's home and sharing a room with her niece. A Department of Human Services social worker who had worked with Alita for four years testified that her cooperation with the department briefly increased after her parental rights to her second child were terminated but again became inconsistent in the month preceding the termination hearing forChico. A department report contained the following summary:

Alita's issues can not be resolved in a short period of time. She has a long term need for therapy coupled with maintained sobriety and life changes. Her lifestyle would need to be monitored for well over a year before the household could be determined to be safe for a child. This should not be an option for Chico.

 We agree with this assessment.

The juvenile court order terminating Alita's parental rights to Chico is affirmed.


671 N.W.2d 533 (Table), 2003 WL 22092588 (Iowa App.)

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