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(Cite
as: 532 N.W.2d 504)
Court
of Appeals of Iowa.
In
the Interest of B.M., Minor Child,
L.M.,
Mother, Appellant.
No.
94-1750.
March 30, 1995.
Appellate
review of termination of parental rights proceedings is de novo.
Upon
review of termination of parental rights proceedings, Court of Appeals
gives weight to juvenile court's findings of fact, especially when considering
credibility of witnesses, but court is not bound by those determinations.
Appellate
court's primary concern in termination of parental rights proceedings
is the best interest of the child and court will look to child's long
range as well as immediate interests. Rules App.Proc., Rule 14(f)(5).
Provisions
of the Indian Child Welfare Act (ICWA) are to be strictly construed and
applied. Indian Child Welfare Act of 1978, § 2 et seq.,
25 U.S.C.A. § 1901 et seq.
In
applying provisions of Indian Child Welfare Act (ICWA), Court of Appeals
seeks to accomplish dual objectives of protecting best interests of Indian
children and promoting stability and security of Indian tribes and families.
Indian
Child Welfare Act of 1978, § 2 et seq., 25 U.S.C.A. § 1901
et seq.
Good
cause existed for denying transfer of termination of parental rights case
involving Indians to tribal court in Oklahoma under Indian Child Welfare
Act (ICWA);
transfer would only delay process, all of evidence and essential
witnesses except for mother were in Iowa, tribal court in Oklahoma did
not have power to subpoena witnesses outside of its jurisdiction, Iowa
Department of Human Services had extensive contact with child, surrogate
parents and other members of extended family, and child was being raised
in Indian home and was not being deprived of Indian culture. Indian
Child Welfare Act of 1978, § 101(b), 25 U.S.C.A. § 1911(b).
Evidence
did not support termination of parental rights of Indian mother; although
mother had failed to comply with case permanency plan, continued to deny
she has substance abuse problem and for all practical purposes had abandoned
her child, testimony showed that it was common under extended kinship
system of tribe to leave children under care of extended family, custodians
of child were nearly 70 years old, court had doubts as to whether they
would live to child's majority and court did not want to terminate mother's
rights in the event that custodians would no longer be in a position to
care for child.
Evidence
supported long-term permanency order placing Indian child in custody of
his great grandparents, rather than termination of parental rights of
Indian mother; great grandparents of child were nearly 70 years
old and court had doubts as to whether they would live to child's majority,
in the event great grandparents could no longer care for child, mother
might be in position to resume parental duties, and permanency order would
guarantee that child would be raised in culture of his tribe and yet would
preserve his ties to mother's tribe in Oklahoma.
*505
Nancy L. Burk, Toledo, for appellant.
Thomas J. Miller, Atty. Gen.,
Gordon E. Allen, Deputy Atty. Gen., Judy Sheirbon, Asst. Atty. Gen.,
and Brent Heeren, County Atty., for appellee-State.
Mark W. Lindholm of the Allbee
Law Firm, Marshalltown, guardian ad litem, for minor child.
Heard by SACKETT, P.J., and CADY
and HUITINK, JJ.
HUITINK, Judge.
LaDonna appeals a juvenile court
order terminating her parental rights to Bradley born in March 1991. Bradley's
father, Larry, is not a party to this appeal. We reverse and
remand with instructions.
LaDonna is an enrolled member
of the Sac and Fox Tribe of Oklahoma. Bradley became an enrolled
member of this tribe in July 1994. He is also an eligible
member of the Mesquaki Nation of the Sac and Fox Tribe of Iowa.
In early November 1991 LaDonna
left Bradley in the care of his great-grandparents, Agnes and Isaac, who
live on the Mesquaki settlement. LaDonna moved to Marshalltown
to live with her sister but returned to retrieve Bradley after a few weeks.
Agnes and Isaac did not believe LaDonna could properly care
for Bradley and refused to turn him over to her. They informed
the department of human services of the situation. The State
filed a child in need of assistance petition in December 1991 alleging
LaDonna had abandoned or deserted Bradley and that she was in need of
treatment for a substance abuse problem.
After a January 1992 hearing
the court placed Bradley in the custody of his great-uncle, Charles. Bradley
was adjudicated CINA in February, and his custody was continued with Charles.
LaDonna did not appear at either of these proceedings.
In September 1992 at Charles' request, the court placed Bradley in the
custody of Agnes and Isaac. In the summer of 1992 LaDonna
moved to Oklahoma. She returned to Iowa in late December 1992
and completed a substance abuse evaluation. The evaluators
recommended she receive inpatient substance abuse treatment. LaDonna
agreed but stated she first had to drive her mother back to Oklahoma.
She did not return for treatment.
The State filed a termination
petition in February 1994. LaDonna filed a motion to transfer
jurisdiction and dismiss arguing Bradley was eligible for membership in
the Sac and Fox Tribe of Oklahoma and a transfer was required by the Indian
Child Welfare Act (ICWA). That tribe wrote to the court stating
it chose not to intervene in the proceeding. The court interpreted
this letter to mean the Tribe declined to exercise jurisdiction over the
matter and denied LaDonna's motion.
LaDonna filed a new motion for
transfer of jurisdiction and dismissal after she received *506
a letter from the Sac and Fox Tribe of Oklahoma clarifying its earlier
letter. In this letter the Tribe explained it had declined
to intervene but had not yet made a decision about whether it would accept
jurisdiction.
At the July 1994 termination
hearing Agnes testified LaDonna had seen Bradley four times since he had
been in their custody. Agnes stated she and Isaac are teaching
Bradley the Mesquaki language and he participates with them in tribal
ceremonies.
Donald Wanatee, a representative of the Sac and Fox Tribe
of Iowa, stated he thought Bradley should remain with his great-grandparents.
The department social worker testified LaDonna had not followed
through with the case permanency plan and recommended termination of her
parental rights.
The court found good cause not
to transfer jurisdiction because the evidence necessary to decide the
case could not be adequately presented in the tribal court without undue
hardship to the parties or the witnesses. The court found
beyond a reasonable doubt that LaDonna's parental rights should be terminated
pursuant to Iowa Code sections 232.116(1)(b), (d), (g), and (k) (1993).
Custody and guardianship of Bradley were placed with Agnes
and Isaac.
Appellate
review of termination proceedings is de novo. In
re W.G., 349 N.W.2d
487, 491 (Iowa 1984) cert.
denied sub nom. J.G. v. Tauke,
469 U.S. 1222, 105 S.Ct. 1212, 84 L.Ed.2d 353 (1985). We give
weight to the findings of fact of the juvenile court, especially when
considering the credibility of witnesses, but we are not bound by those
determinations. Id.
at 491-92.
Our
primary concern in termination proceedings is the best interest of the
child. Iowa R.App.P. 14(f)(5); In
re Dameron, 306 N.W.2d
743, 745 (Iowa 1981). In deciding what is best for the child,
we look to the child's long-range as well as immediate interests. In
re A.M.S., 419 N.W.2d
723, 726
(Iowa 1988). In this case Iowa statutory and case law is modified
by the provisions of the ICWA. In
re J.W., 528 N.W.2d
657, 659 (Iowa App.1995).
The provisions of the ICWA are to
be strictly construed and applied. In
re J.W., 498 N.W.2d 417,
421 (Iowa App.1993) (citation omitted). In applying the ICWA
we seek to accomplish the dual objectives of the Act: (1) to protect
the best interests of Indian children and (2) to promote the stability and
security of Indian tribes and families. See
In re J.W., 528 N.W.2d
at 660.
LaDonna first contends the juvenile
court erred when it denied her motion to transfer jurisdiction of the
case to the Oklahoma tribal court for good cause. We disagree.
The ICWA requires the state to
transfer "proceeding[s] for the foster care placement of, or termination
of parental rights to, an Indian child not domiciled or residing with
the reservation of the Indian child's tribe" to the jurisdiction
of the tribe "absent good cause to the contrary." 25 U.S.C.
§ 1911(b). After a careful consideration of the
circumstances of this case we, like the juvenile court, find good cause
exists not to transfer this case to the tribal court.
Transfer of jurisdiction would
result in undue hardship to Bradley and the witnesses. All
of the evidence is located in Iowa, and all of the essential witnesses
but for LaDonna reside in Iowa. The Sac and Fox Tribe of Oklahoma
does
not have the power to subpoena witnesses outside of its jurisdiction.
The Iowa Department of Human Services has had extensive contact
with Bradley, Agnes, and Isaac, as well as other members of Bradley's
extended family.
Unlike many other cases involving
the ICWA, the child at issue has remained in a home in which he is raised
in an Indian culture. The Sac and Fox Tribe of Oklahoma has
had little contact with this family, but Bradley has been immersed in
the culture of the Mesquaki Nation of the Sac and Fox Tribe here in Iowa.
Donald Wantatee has been an active participant in this case which has
protected against state court bias against tribal culture. The
evidence suggests that LaDonna's insistence on transferring jurisdiction
to the Oklahoma tribal court is an abuse of the provisions of the ICWA.
Clearly Bradley is not being deprived of his Indian culture.
A transfer would only delay the process, which is not in Bradley's
best interests. Under these circumstances, the *507
juvenile court had good cause to retain jurisdiction. See
In re J.W., 528 N.W.2d
at 661.
LaDonna also contends the juvenile
court erred in terminating her parental rights. The record
shows LaDonna has failed to comply with the case permanency plan, continues
to deny she has a substance abuse problem, and has, for all practical
purposes, abandoned Bradley. However, the unique circumstances
of this case lead us to conclude all of the objectives of the ICWA can
be accomplished without terminating LaDonna's parental rights.
Testimony revealed that under the extended kinship system of the Sac and
Fox Tribe leaving a child in the care of extended family is common. Bradley's
family is an example of this practice. LaDonna and her sister
Dawn were left in the care of Agnes and Isaac by their own mother. In
addition, Dawn has left her own daughter in Agnes and Isaac's care, even
though she lives close to the Mesquaki settlement in Marshalltown.
It is not in Bradley's best interests
to be returned to LaDonna's custody at this time or in the near future.
However there are no compelling circumstances which lead us
to conclude it is in Bradley's best interests to terminate LaDonna's parental
rights. At the present time Agnes and Isaac are the proper
custodians for Bradley, and he sees them as his parents. However,
they are both close to seventy years of age, and it is questionable whether
they will be able to parent Bradley until he reaches the age of majority.
A long-term permanency order placing
Bradley in the custody of his great-grandparents is the more appropriate
option in this case. We are bound to protect and promote "the
stability and security of [both] Indian tribes and
families" whenever possible. A permanency order guarantees
Bradley will be raised in the culture of the Sac and Fox Tribe of Iowa,
yet preserves his ties to LaDonna and the Sac and Fox Tribe of Oklahoma.
There is an opportunity for LaDonna
to receive help for her substance abuse problem and establish a relationship
with Bradley. If Agnes and Isaac are unable
to care for Bradley in the future for some reason, LaDonna might be in
a position to properly parent Bradley. We do not believe that
Bradley's best interests will be served by the termination of LaDonna's
parental rights. See
In re S.J., 451 N.W.2d
827, 832-33 (Iowa 1990).
Accordingly, we reverse the juvenile
court order terminating LaDonna's parental rights. The juvenile
court is instructed to dismiss the termination action and enter a permanency
order placing Bradley in the long-term custody of his great-grandparents.
REVERSED
AND REMANDED WITH INSTRUCTIONS.
532 N.W.2d 504
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