(Cite as: 686 N.W.2d 236,  2004 WL 1161431 (Iowa App.))

(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 See FI IA R 6.14(5) for rules regarding the use and citation of unpublished opinions.)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 J.G. and M.G., Minor Children,

B.S., Mother, Appellant.

No. 04-0510.

May 26, 2004.

There was no error in the juvenile court's termination of parental rights proceedings since juvenile court did not enter a termination order until it received documentation that the children were not Indian children subject to Indian Child Welfare Act (ICWA).  25 U.S.C.A. § 1901 et seq.

It was in the children's best interests to terminate mother's parental rights; mother had not acted in the children's best interests by continuing a criminal lifestyle that involved the use of illegal drugs, and children needed permanency.

Appeal from the Iowa District Court for Polk County, Karla Fultz,  Associate Juvenile Judge.

B.S. appeals from the termination of her parental rights. AFFIRMED.

Edward Bull of Bull Law Office, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, John Sarcone, County Attorney, and William Sales, Assistant County Attorney, for appellee-State.

Jane White of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble & Cook, L.L.P., Des Moines, for father.

Debra Hockett-Clark, West Des Moines, guardian ad litem for minor children.

Considered by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.


I. Background Facts & Proceedings

**1 Brandy is the mother of Jasmine, born in November 1996, and Michael, born in May 1999. [FN1] She has a history of substance abuse. The children were placed in foster care in September 2002 after Brandy was arrested for a probation violation. Brandy's probation was related to drug charges--possession of a controlled substance with intent to deliver and failure to affix a drug tax stamp. The children were adjudicated to be children in need of assistance pursuant to Iowa Code sections 232.2(6)(c)(2) and (n) (Supp.2001).

FN1. The children's father agreed to termination of his parental rights. He is not a party to this appeal.

Brandy entered the House of Mercy, a residential treatment program, in December 2002. She left the program in April 2003, after she had two drug tests that were positive for methamphetamine. Brandy's whereabouts were unknown until June 2003, when she turned herself in to her probation officer. Brandy was then incarcerated. Her earliest release date would be February 2005.

In September 2003 the State filed a petition seeking termination of Brandy's parental rights. At a hearing in October 2003, Brandy stated the children could possibly be members of the Blackfeet Tribe. The juvenile court suspended the termination hearing until January 6, 2004, "to allow the issue of native American heritage to be explored and appropriate notices to be sent."

On January 6, 2004, the parties had insufficient information about whether or not the children in this case were potentially members of an Indian tribe. The juvenile court proceeded with the termination hearing, but left the record open for further information on this issue. On March 3, 2004, the court received documentation that the children were not Indian children.

The juvenile court entered a termination order on March 18, 2004. The court terminated Brandy's parental rights under sections 232.116(1)(b), (d), (h), and (k) (2003). The court noted the children could not be returned to Brandy because of her incarceration. The court concluded termination of Brandy's parental rights was in the children's best interests. Brandy appeals.

II. Standard of Review

The scope of review in termination cases is de novo. In re C.B ., 611 N.W.2d 489, 492 (Iowa 2000). The grounds for termination must be proven by clear and convincing evidence. In re T.B., 604 N.W.2d 660, 661 (Iowa 2000).

III. Indian Child Welfare Act

Brandy contends the juvenile court failed to allow her adequate time to investigate whether the Indian Child Welfare Act (ICWA) would apply in this case. She claims the juvenile court should not have proceeded with the termination hearing without first conclusively determining whether the ICWA would apply.

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). The juvenile court did not enter a termination order in this case until it received documentation that the children in this case were not Indian children, and the court then concluded the ICWA did not apply. Brandy was clearly not prejudiced by the court's procedure in this case, and we find no error in the juvenile court proceedings.

IV. Best Interests

**2 Brandy asserts that termination of her parental rights is not in the children's best interests. Even if the statutory requirements for termination of parental rights are met, the decision to terminate must still be in the best interests of the children. In re M.S., 519 N.W.2d 398, 400 (Iowa 1994). In considering children's best interests, we look to the children's long-range as well as immediate interests. In re C.K., 558 N.W.2d 170, 172 (Iowa 1997).

We find it is in the children's best interests to terminate Brandy's parental rights. Brandy has not acted in the children's best interests by continuing a criminal lifestyle that involves the use of illegal drugs. The children need permanency. They should not be required to wait any longer for Brandy to put their needs before her own.

We affirm the decision of the juvenile court.


686 N.W.2d 236 (Table), 2004 WL 1161431 (Iowa App.)

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