|
(Cite
as: 508 N.W.2d 732)
Court
of Appeals of Iowa.
In
the Interest of S.M., A.M., K.W., P.M., and L.M., Minor
Children.
C.M.,
Mother, Appellant.
No.
93-504.
Oct.
5, 1993.
Indian
Child Welfare Act (ICWA) requires juvenile court to consider testimony
of qualified expert witness prior to termination of parental rights
of child's parent or Indian custodian. Indian Child Welfare Act
of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
In
parental rights termination hearing governed by Indian Child Welfare Act
(ICWA), required testimony of qualified expert witness is to provide
juvenile court with knowledge of social and cultural aspects of
Indian life to diminish risk of any cultural bias. Indian
Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
In
parental rights termination hearing governed by Indian Child Welfare Act
(ICWA),
requirement of "qualified expert witness testimony" was met by testimony
of two state Department of Human Services social workers who
had been employed as social workers for 5 and 7
1/2 years, and who had taken continuing education and cultural
training pertaining to Native Americans, where one witness had been
qualified under ICWA 16 times in past, and 50 to
75 percent of her case work involved delivery of services
to Native Americans, and other witness, who had no specific
experience with mother or children in the case, had received
basic training relative to ICWA. Indian Child Welfare Act of
1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
*733
Robert J. Rehan of Thomas and Rehan, Sioux City, for
appellant.
Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Sp. Asst.
Atty. Gen., Judy Sheirbon, Asst. Atty. Gen., and Dewey P.
Sloan, Asst. County Atty., for appellee.
Considered by DONIELSON, P.J., and SCHLEGEL and HABHAB, JJ.
HABHAB, Judge.
C.M., the natural mother, appeals from a juvenile court order
terminating her parental rights to her three older children, S.M.,
born December 7, 1980; A.M., born January 23, 1984; and
K.W., born June 2, 1988. [FN1]
We affirm.
FN1.
C.M. does not appeal the termination of her parental rights
to her twins, P.M. and L.M., born on September 24,
1990. L.W., the natural father of K.W., P.M., and L.M.
does not appeal the termination of his parental rights nor
does R.M., the possible natural father of S.M. and A.M.
The Omaha Tribe, which was represented at the termination hearing
under the Indian Child Welfare Act (ICWA), has not appealed
from the order which terminated the parental rights to all
five children and placed custody and guardianship of the children
with the Iowa Department of Human Services for purposes of
adoption.
On February 10, 1989, the children were removed from the
mother's care on an emergency basis as a result of
her intoxication. On February 13, 1989, a Child in Need
of Assistance (CINA) petition was filed. S.M. and A.M. were
returned to their mother's home, but in the care of
their maternal grandmother. On March 4, 1989, S.M. was placed
in emergency foster care with K.W. when the police discovered
her sitting in a vehicle (her caretaker was in a
nearby bar) insufficiently dressed in sub-zero weather. On March 13,
1989, an adjudicatory hearing was held. A.M. was allowed to
remain in his mother's custody pending the dispositional hearing subject
to her complete abstinence from
alcohol, his attendance at the Native American day care center,
homemaker contacts, and home studies of two relatives' homes. On
April 13, 1989, following the dispositional hearing, A.M. was removed
from his mother's custody and placed in his maternal aunt's
home; K.W. and S.M. remained in foster care. In October
1989, S.M. and K.W. were placed with the same maternal
aunt as A.M. On November 15, 1990, all three were
removed from their aunt's home *734
as a result of her intoxication and were placed together
in a foster home, where they remain.
On September 29, 1992, the State filed a petition for
termination of parental rights. The hearing was held on January
11 and 26, 1993.
[FN2] C.M. challenged the expertise of the State's witnesses under
the Indian Child Welfare Act (ICWA) and, at the conclusion
of the State's case, she moved to dismiss the petition
on the ground that the State failed to produce two
qualified expert witnesses to testify in support of the petition.
On March 2, 1993, the court overruled C.M.'s objection and
ordered termination of her parental rights. C.M. appeals.
FN2.
The parties stipulated at the beginning of the proceedings that
the Indian Child Welfare Act is applicable.
On appeal, the mother contends the juvenile court erred in
terminating her parental
rights, alleging as her only ground that the State failed
within the meaning of the ICWA to present the testimony
of a qualified expert witness at the termination proceeding.
The pertinent part of the ICWA provides:
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)
(1988).
This
section requires the juvenile court to consider the testimony of a qualified
expert witness prior to the termination of the parental rights of the
child's parent or Indian custodian. In
re L.N.W., 457 N.W.2d
17, 18 (Iowa App.1990). 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 (Okla.1988).
The term "qualified expert witness" is not statutorily defined. The
mother makes reference to the federal guidelines which identify three
possible types of expert witnesses.
(i)
A member of the Indian child's tribe who is recognized
by the tribal community as knowledgeable in tribal customs as
they pertain to family organization
and childrearing practices.
(ii)
A lay expert witness having substantial experience in the delivery
of child and family services to Indians, and extensive knowledge
of prevailing social and cultural standards and childrearing practices within
the Indian child's tribe.
(iii)
A professional person having substantial education and experience in the
area of his or her specialty.
44 Fed.Reg. 67,584, 67,593 (1979).
While the Department of Interior issued these guidelines for state
courts, these guidelines "are not published as regulations because they
are not intended to have binding legislative effect." 44 Fed.Reg.
at 67584.
The
juvenile court accepted two state witnesses, Linda Vogel and Mary Tope,
as qualified expert witnesses for purposes of ICWA. Ms. Vogel
has been employed as a social worker with the Iowa Department of Human
Services for five years. She has a bachelor's degree in social
work and psychology and attends three to four courses of continuing education
per year, about one-half of which pertain to Native Americans. About
fifty to seventy-five percent of her case work involves delivery of services
to Native Americans. Ms. Vogel has been qualified under the
ICWA sixteen times in the past.
Ms. Tope has been employed as a social worker for
seven and a half years. She has a bachelor's degree
in social work and has attended various workshops and seminars
of continuing education. She has attended cultural training with regard
to Native American Indians. Prior to working for the Iowa
Department of Human Services, she was employed in the South
Dakota department where she received basic training relative to the
ICWA. Ms. Tope had no specific experience with C.M. or
her children, but reviewed the case file before the termination
hearing.
*735
The juvenile court made a specific factual finding that Ms.
Vogel and Ms. Tope were qualified experts under ICWA. Upon
our de novo review, we find no abuse of discretion
in this determination. See
In re L.N.W.,
457 N.W.2d at 18 (no abuse of discretion in finding
social worker was a qualified expert witness when she had
taken a seminar on ICWA, had throughout her life been
associated with Native Americans and has affiliated herself with the
Indian Youths of America group); In
re S.D.,
402 N.W.2d 346, 350, (S.D.1987) (court found no abuse of
discretion in finding a social worker who had ten years
experience and who had worked on approximately 300 Indian family
cases was a qualified expert); 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.1982) (social worker with B.A. in
social work and who had regular
contact with Native Americans and the 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. § 1912(f),
pertaining to qualified expert witness testimony, to have been met
by the testimony of Ms. Vogel and Ms. Tope.
AFFIRMED.
508 N.W.2d 732
|
