(Cite as: 690 N.W.2d 699)

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 See FI IA R 6.14(5) for rules regarding the use and citation of unpublished opinions.)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

D.R., Mother, Appellant.

No. 04-0745.

Sept. 9, 2004.

*1 Dorothy, the mother of Anthony, born May 29, 1992, and Jesus, born September 6, 1993, filed a petition on appeal contending (1) the State failed to provide active efforts to prevent the break up of her Native American family, (2) the juvenile court should not have terminated her parental rights to the two children, (3) the State did not prove the grounds for termination beyond a reasonable doubt, and (4) the State failed to prove beyond a reasonable doubt that her parental rights should be terminated under Iowa Code sections 232.116(1)(d), (e), and (f) (2003). We ordered full briefing by the appellant and the State on the issue of active efforts. The State and Dorothy have filed briefs. The guardian ad litem joined in the State's brief.  ^FN1 We find the State failed to produce sufficient evidence of active efforts. We reverse and remand.

FN1. The Sac and Fox of the Mississippi in Iowa appeared for the first time on appeal and joined the State's brief. We have considered the State's brief. Consequently we need not address the tribe's standing to file the brief and do not do so.

Dorothy, who has lived in Minnesota during the pendency of this matter, needed help with the children because she was experiencing serious financial difficulties. She was moving to a shelter and did not want the children there. Dorothy sought family help, and at her request, the children moved to the home of Iowa relatives Miriam and Frank. There was no set agreement as to the time the children would be in that home. After about a month Miriam and Frank, enrolled members of the Meskwaki Tribe, felt they were not equipped to care for the children.

Unable to contact Dorothy, the relatives contacted the Department of Human Services and an order was entered on October 23, 2002, temporarily removing the children because (1) Dorothy was absent; (2) her whereabouts were unknown; and (3) the children's caretakers were no longer able to care for them. On October 21, 2002 a petition was filed seeking to have the children found to be children in need of assistance on the grounds (1) their parent has abandoned or deserted them; (2) their parent or custodian has physically abused or neglected them or is likely to do so; (3) their parents' mental capacity or condition, imprisonment, or drug or alcohol abuse results in the children not receiving adequate care.

Serving notice of the filing of the petition was difficult. The children have different fathers whose whereabouts were not known and who apparently have provided little or no support financially or otherwise to Dorothy and the children. Dorothy was finally served notice of the child-in-need-of-assistance filing and the proceedings were delayed to give her time to contact an attorney.

The Turtle Mountain Chippewa Tribe was also notified because Dorothy contended the children were eligible to be enrolled in the tribe. The tribe did not answer, but it was ultimately determined, based on other tribal connections, that the children were subject to the Iowa Indian Child Welfare Act. The juvenile court subsequently found the children in need of assistance based on evidence of Dorothy's denial of critical care, lack of supervision, physical abuse of the children, and substance abuse history. The children were left in the custody of the Iowa Department of Human Services and placed in foster care in an order issued December 18, 2002.

*2 Dorothy has been found to have committed child abuse three times in California and twice in Iowa. She also has been arrested for use of controlled substances, petty theft, false use of identification, child cruelty, and driving with a suspended driver's license. The facts of the abuse and the ultimate disposition of the charges are not clear. Dorothy moved with the children a number of times.

Following the determination the children were in need of assistance, Dorothy was offered funding for substance abuse and psychological evaluation. She was also provided with supervised visits. Dorothy continued to live in Minnesota, failed to participate with the children's services, and at times she could not be located and did not respond to all department requests. During part of this time, she claimed she worked as a nanny for a family in Minnesota; however, this was denied by the mother of the family, who said they only gave her a place to stay. She subsequently moved to a shelter. She sought outpatient chemical dependency treatment. She attended seven sessions but did not return. A report from the facility noted her prognosis was guarded as she did not complete treatment.

She consulted Steven M. Smith, M.A. Psy. D.L.P., of the Qyate Nawajin Counseling and Support Project in St. Paul, Minnesota, who did a psychological assessment of Dorothy and observed no significant psychopathy which would warrant further services. He determined Dorothy was distrustful of child protective services and the court and feels mistreated by them. Based on his assessment, he found no reason why she could not have the children back.

Russell Grimm, a family therapist, testified as a witness for the State. Grimm holds a bachelor's degree from the University of Northern Iowa and a master's degree in youth and human services administration and has extensive experience working with children, but not necessarily on parental termination issues. He served as a family therapist for Anthony for about a year. He did not believe Anthony should immediately be returned to Dorothy because they had had little recent contact, but he did not believe Dorothy's parental rights should be terminated and when asked why, he testified:

Well, he wants to have a relationship with his mother and he has to define what this relationship is going to be, and it isn't just now, it's over the years to come. And I don't think-I believe that if the court takes away his ability to define this relationship, then I think it's just going to make him all the more angry, and it will deny him this opportunity to figure out what this relationship is going to be. All of us in this room have different relationships with our parents, and we each define what that is, and our parents also define what that relationship is going to be. And I think for him, he needs this. He needs to have a connection with his mom. I don't know what that connection is going to be, but he needs to have this line to her.

*3 We first address Dorothy's contention the State failed to make active efforts to prevent the breakup of this Native American family. The State contends Dorothy did not preserve error on the issue of active efforts. Dorothy contends active efforts must be made and the error was preserved. Iowa Code section 232B.5(19) provides:A party seeking an involuntary foster care placement or termination of parental rights over an Indian child shall provide evidence to the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break up of the Indian family and that these efforts have proved unsuccessful. The court shall not order the placement or termination, unless the evidence of active efforts shows there has been a vigorous and concerted level of casework beyond the level that typically constitutes reasonable efforts as defined in sections 232.57 and 232.102. Reasonable efforts shall not be construed as active efforts. ... Active efforts shall include but are not limited to all of the following:

(a) A request to the Indian child's tribe to convene traditional and customary support and resolution actions or services.

(b) Identification and participation of tribally designated representatives at the earliest point.

(c) Consultation with extended family members to identify family structure and family support services that may be provided by extended family members.

(d) Frequent visitation in the Indian child's home and the homes of the child's extended family members.

(e) Exhaustion of all tribally appropriate family preservation alternatives.

(f) Identification and provision of information to the child's family concerning community resources that may be able to offer housing, financial, and transportation assistance and actively assisting the family in accessing the community resources.

Iowa Code § 232B.5(19) (Supp.2003) (emphasis added).

The State argues Dorothy did not preserve error on the issue of active efforts as she did not challenge it until the time of the termination hearing. The State supports its argument by correctly arguing that in dealing with the State's responsibility to provide reasonable efforts we have said that while the State has an obligation to provide the services the parent has an equal obligation to demand other, different, or additional services prior to the termination hearing. In re S.R., 600 N.W.2d 63, 65 (Iowa Ct.App.1999); In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa Ct.App.1997). Dorothy contends she made a request earlier, which was not honored, and it was preserved by raising it at the termination hearing. The State also argues that chapter 232B was not passed until 2003 and was not applicable to these proceedings.

While cases on reasonable efforts are instructive in looking at active efforts they are not determinative. Section 232B.5(19) notes that active efforts require a level of services typically beyond reasonable efforts. Additionally, unlike reasonable efforts where the juvenile court is given certain discretion to determine what services are appropriate, section 232B.5(19) provides there are specific things that ?[A]ctive efforts shall include.?

*4 Section 232B.5(19) also provides that the party seeking termination has the obligation to provide evidence active efforts have been made and the court shall not order the termination unless there is evidence of the required casework. The burden of showing active efforts was on the State at the time of the termination hearing, and termination cannot be ordered unless evidence shows active efforts. See id. The mother's challenge is preserved for appellate review.

Therefore, we look to determine if the active efforts requirement was met. The State contends it provided evidence the required active efforts were made. It says it provided remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and these efforts proved unsuccessful. The State specifically argues that (1) the tribe and Department of Human Services encouraged Dorothy to become engaged with her children, (2) attempts to reach Dorothy were not successful, (3) Dorothy was not responsive to temporarily moving to Iowa, (4) Dorothy left the children in Iowa, (5) Dorothy's frequent moves and lack of stability prevented completing a court-ordered home study, (6) Jesse wanted to remain in foster care and be adopted, (7) the children made progress in foster care, (8) Dorothy came to Iowa but did not see the children, (9) Dorothy did not ask for money to help pay for transportation, (10) Dorothy was employable but was not employed, (11) a social worker from Meskwaki Family Services testified she did not see any services that could have been provided that were not provided, (12) Dorothy never made herself available at Meskwaki Services even though there were services there available to her, and (13) Dorothy never explained her failure to complete services.

Mylene Wanatee testified as a witness for the State. She is a social worker from the Meskwaki Family Services and a graduate of Iowa State University with a major in social work. She testified she talked twice with Anthony and Jessie, and their mother has instilled the Indian cultural identity into the children. She supervised one visit between Anthony and Dorothy. She said the caseworker had contacted her agency about locating Dorothy. She said there were services Meskwaki Family Services could have provided Dorothy had she contacted them. She said Dorothy had family on the settlement and she probably could have found a place to stay in the Tama area.

Tamara Beall-Thomas testified for the State. She is the director and ICWA specialist for Meskwaki Family Services, holds a bachelor's degree in social work from the University of Northern Iowa, is a licensed social worker in the State of Iowa, and has about twenty years experience. She has had contact with the children since they were picked up in Minnesota in September 2002. She met with them twice and supervised other workers who had contact with them. She oversaw one visit between Anthony and Dorothy. She did not believe the boys should go back to Dorothy because of her lack of communication and follow-through. She said the children need stability. She said Dorothy requested no services from them. She also said the initial caregivers contacted some unidentified family members but apparently they didn't have a unity meeting because Dorothy was not available, although she said they could have such a meeting without Dorothy. Beall-Thomas said the tribe would participate in securing a permanent placement for both children and the Tribal Council will require an adoptive family to sign a cultural agreement to ensure the children will participate in cultural activities and have contact with their family and know their culture and family.

*5 Dorothy's attorney reviewed the specific active effort requirements of section 232B.5(19)(a-f) in cross examining Nicole Prati, a Social Worker II, who had been involved with this case from the beginning and recommended termination. Dorothy's brief summarizes this testimony as it applies to the requirements and is supplemented with references to reports made during the pendency of the proceedings. Prati was asked about the requirements of section 232B.5(19)(a), that is, requesting the child's tribe to convene traditional or customary support services. Prati said she regularly updated Meskwaki Family Services on the children's status, joined them in visits with the children, communicated with them about coordinating visits between Dorothy and the children and asked them for information to educate herself about the children's culture. She was next asked about the requirements of section 232B.5(19)(b), that is, identifying tribally designated representatives. She said she did not know what was meant by tribally designated representative. She was next asked about section 232B.5(19)(c), that is, consultation with extended family, and she said Meskwaki Family Services tried to find family members. She related that in trying to identify support services the family could provide, they were supervising visits or phone calls and possibly transportation. She was asked about section 232B.5(19)(d), the requirement that frequent visits be made to the children's home and the homes of extended family members. She said she visited the children in their first home twice. When asked about section 232B.5(19)(e), tribally appropriate family preservation alternatives, she said they were exhausted when the children left the home of Miriam and Frank. She was asked about section 232B.5(19)(f), that is, identifying community services in a number of areas, and testified she looked on the internet for places where Dorothy could gain substance abuse treatment and psychological evaluation in Minnesota. She said she did not help Dorothy with housing because Dorothy always had a place to live except when she stayed at a homeless shelter. She did not assist Dorothy with finances because Dorothy received welfare checks, and she did not help Dorothy with financial assistance other than to propose she borrow money from relatives. As to transportation assistance, she told Dorothy to look into bus fares, and when asked about helping Dorothy with transportation, she said Dorothy had not specifically requested assistance.

The State's brief does not address each requirement or explain how it was met. The crux of the State's argument is that the mother did not ask for services, was difficult to find, and did not make sufficient efforts in her own behalf. None of the State's witnesses appeared to be familiar with the requirements of section 232B.5(19)(a-f).^FN2

FN2. At the time of the hearings on the petitions to terminate Dorothy's parental rights, the Iowa Indian Child Welfare Act had been in effect less than six months. The act became effective July 1, 2003. The petition to terminate Dorothy's parental rights was filed August 21, 2003. Hearing on the petition occurred on December 11 and 12. The termination order issued on April 21, 2004.

Daun Keefe testified as a witness for Dorothy. She was of the opinion the State failed to make active efforts to prevent the family breakup. Daun has a master's degree in social work, is licensed to practice, and works as a social worker in an Alzheimer unit. She has taught at the University of Northern Iowa and worked with the Meskwaki Tribe for over four years, one and one-half years as director and Indian Child Welfare Act specialist. At the time of the hearing she was Anthony's foster mother. She felt there should have been a family unity meeting to allow the extended family to make plans for the children, and that the State should market such meetings, and approach and educate family members. She testified she has had contact with people who would participate. Daun said there was not good communication, and Dorothy has not known what her resources are, nor has she known what to ask for, and she is without money and education, things that produce stability.

*6 Daun further testified she has known Dorothy personally for a couple of months, has observed Dorothy with Anthony, sees that they are bonded ^FN3 and that she is positive with him and encourages him. She said they have a strong positive relationship. Daun said Anthony is interested in nature, knows scientific facts, is just a little biologist, and she realized Dorothy provided him with active experiences in nature. Daun indicated an earlier foster mother did not make required phone calls to Dorothy. Daun said she encouraged Dorothy to call anytime and she frequently did. She felt the phone calls to Anthony were positive. Daun said Anthony talked about experiences he had with his mother in South Dakota, including a Native American ceremony and cultural things. She had Dorothy in her home and shared meals with Dorothy and Anthony, and they were positive experiences. Daun testified:

FN3. She recognized Dorothy is not as bonded with Jesus and he is a different child. She also realized the children could not immediately be returned to their mother but believed Anthony would be a happy child if returned to his mother in six months.

Q. Do you feel that [Dorothy]-when [Dorothy] is with him, does she act more like a friend or does she assume the role of parent? A. Well, I expected [Dorothy] to act more like a child because that's kind of what I had heard or I assumed-I don't know. But when I met her and I watched her interact with Anthony, what I saw was a nurturing parent, a nurturing mother, who treated us like-In light of the fact that he's not in her care, she gave me respect as the parent person, but she interacted with him with encouragement about what he was doing, questions about what he was doing. The conversation stays on him, so I think that's appropriate, I don't-didn't think that she was actually acting like a peer but he-It's really neat when a parent can play with their kids. I think she likes to play, too, with him, and I think that's good.

Q. I think you stated that you believe there is a bond between them? A. Yes. I'm sure there's a bond. I heard about it from Anthony ever since I've met him. I mean, I see it with Mom, too, but I hear about it from Anthony.

Q. What do you hear from him? A. Well, when he first came to be with just me, I asked him one night, I said, ?What do you pray about at night when you pray?? And he said, ?I pray for my mom and I pray for everybody who prays for me.? So he's been given some kind of a spiritual relationship. He was raised with a spiritual relationship idea and it involves his mother and other people. He's asked me, ?When am I going to get to go live with my mom?? He asked me that one night probably a month in. He was laying in bed and I was leaving the bedroom and this little voice came from the bed and he said, ?When am I going to get to go back with my mom?? And from time to time that's come up, ?I don't want to be adopted. I don't want to live anyplace else. I hate foster care. I want to be with my mom.? He's not-When he talks about life with Mom, he hasn't relayed any negative experiences like this terrible thing happened with this male person in my mom's life or I was hungry or I was in danger or anything like that. He talks about the stuff that has to do with the fun things that he's done and the cultural things that he's done, and so I just haven't heard any fear of her or doubt about her as a person. And I don't know, I guess I expected that, but I didn't-There's not been any of that.

*7 We cannot say, from our review of the record, that the State provided evidence to the court that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. In saying this, we recognize some services were identified, that Dorothy was not readily available, did not complete the substance abuse program, and there was some communication with the local tribe ^FN4 and its agencies. However, among other things, there was no request to the children's tribe to convene required services, and no identification and participation of tribal representatives as required by section 232B.5(19)(a) and (b). There was minimal required consultation with extended family, and there were minimal visits in homes of the child and extended family. It is questionable if what was done complied with what is required by sections 232B.5(19)(c) and (d). The testimony of Anthony's foster mother supports a finding that there was not exhaustion of all tribally appropriate family preservation alternatives as required by section 232B.5(19)(e). And while there was minimal information provided to Dorothy concerning community services, there was little or no active assistance in helping her access those resources as required by section 232B.5(19)(f).

FN4. Section 232B.5(20) makes provisions for the State to contract with another Indian tribe for supervision regarding placement, case management, and the provision of services to an Indian child. Whether there was a contract here is not an issue because we have determined the active effort requirement was not met.

Consequently, because there was an insufficient showing of active efforts as required by section 232B.5(19), the termination should not have been ordered, for the juvenile court could not have found the evidence of active efforts showed there had been a vigorous and concerted level of casework beyond the level that typically constitutes reasonable efforts as defined in sections 232.57 and 232 .102. In saying this, we recognize chapter 232B was not passed until 2003, so there was a period of time when the children were in state care before the statute was in place. However, chapter 232B was enacted prior to the time the termination of parental rights was sought. We also recognize that the requirements of the Act are strict, and compliance may be difficult and costly. However, the statute is quite clear that the legislature has required substantial state resources be directed to preserve Indian families. We are governed by the statutes in this case, and if they are to be changed or modified, it must be done by the legislature, not the courts. We reverse the termination of Dorothy's parental rights. Anthony and Jesus remain children in need of assistance. They were found children in need of assistance before the enactment of section 232B.5 and no appeal was taken from that order.

REVERSED AND REMANDED.