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(Cite
as: 437 N.W.2d 599)
Court
of Appeals of Iowa.
In
the Interest of R.L.F., Minor Child.
Appeal
of R.H., Father.
No.
88-1407.
Jan. 26, 1989.
Court
of Appeals' review of proceedings to terminate parent-child relationship
is de novo and requires consideration of best interests of child with
reference to child's long-range, as well as immediate, interests.
State
must prove allegations of petition to terminate parental rights by clear
and convincing evidence. I.C.A. § 232.116, subd. 1, pars.
b, e.
Termination
of parental rights in child who was eligible for tribal enrollment satisfied
Indian Child Welfare Act with respect to Indian father who had never seen
child or had any contact with her and who had failed to provide any financial
support despite his expressed, generalized interest in the child. Indian
Child Welfare Act of 1978, §§ 2 et seq., 102(f), 25 U.S.C.A.
§§ 1901 et seq., 1912(f).
Evidence
that 31-year-old father who had been incarcerated for at least ten years
of his adult life could not be effective custodial parent of child supported
termination of his rights on grounds that child would be imminently likely
to suffer harmful emotional or physical effects were he allowed to assume
parenting role. I.C.A. § 232.116, subd. 1, par. e.
Indian
father's failure to object in parental termination proceedings to qualifications
of caseworker as "qualified expert" within meaning of Indian
Child Welfare Act operated as waiver of any improprieties in caseworker's
testimony. Indian Child Welfare Act of 1978, § 2 et seq.,
25 U.S.C.A. § 1901 et seq.
*600
Robert J. Rehan of Vakulskas & Hoffmeyer, Sioux City, for appellant
father.
Thomas J. Miller, Atty. Gen.,
and Kathrine S. Miller-Todd, Asst. Atty. Gen., for the appellee State.
Paul Mahr, Sioux City, guardian
ad litem for appellee child.
Considered by SCHLEGEL, P.J.,
and HAYDEN and SACKETT, JJ.
SCHLEGEL, Judge.
The father of a Native American
child appeals the termination of his parental rights. He contends
that the evidence was insufficient to warrant termination under the federal
Indian Child Welfare Act of 1978.
R.L.F., born December 12, 1985,
is the child of J.R.J. and R.H. She was born out of wedlock.
She lived in the sole custody of her mother for twenty-four
days. She was removed from her mother's custody on December
26, 1985, by the Iowa
Department of Human Services on the grounds that she was in imminent danger
in her present living conditions. She was adjudicated to be
a child in need of assistance shortly thereafter. She has
been in the temporary care, custody and control of the DHS continually
since December 26, 1985, and currently resides in a Native American foster
home. J.R.J.'s parental rights were terminated in March 1987.
She did not appeal from the termination order.
At the time of R.L.F.'s birth,
R.H. was incarcerated in the Lincoln Correctional Center, Lincoln, Nebraska,
and was scheduled to be released in November 1988. R.L.F.
has never met her father or had any contact with him. In June 1988, the
State filed a petition asking that R.H.'s parental rights be terminated.
Upon hearing, the court terminated R.H.'s parental rights,
relying on both Iowa Code sections 232.116(1)(b) and 232.116(1)(e). In
addition, the juvenile court made a finding that termination was justified
under the federal Indian Child Welfare Act of 1978, 25 U.S.C. § 1901
et seq.
R.H. has appealed from the termination
of his parental rights. He contends that the evidence did
not meet the standards for termination under the Indian Child Welfare
Act. He argues the evidence did not establish beyond a reasonable
doubt that his eventual custody of R.L.F. is likely to result in serious
emotional or physical damage. He further argues that the State
failed to present a qualified expert witness within the contemplation
of the Act, and that the State failed to provide adequate remedial services
and rehabilitation programs
to him.
Our review of proceedings to terminate
a parent-child relationship is de novo. We accord weight to
the fact findings of the juvenile court, especially when considering the
credibility of the witnesses the court has heard and observed first hand,
but we are not bound by them. Our primary concern is the best
interests of the child. We look to the child's long-range,
as well as immediate, interests. In
re Dameron, 306 N.W.2d
743, 745 (Iowa 1981). *601
We consider what the future holds for the child if returned to his or
her parents. Id.
Insight for this determination can be gained from evidence of the parent's
past performance, for that performance may be indicative of the quality
of the future care the parent is capable of providing. Id.
The State must prove the allegations
of the petition to terminate by clear and convincing evidence. See
Santosky v. Kramer,
455 U.S. 745, 770, 102 S.Ct. 1388, 1402, 71 L.Ed.2d 599, 617 (1982). This
includes the requirement that before the court may terminate the parental
rights there must be clear and convincing proof that the child will suffer
harm in a manner specified in section 232.2(6). See
In re Chad, 318 N.W.2d
213, 219 (Iowa 1982). The child should not be forced to endlessly
suffer the parentless limbo of foster care. Long
v. Long, 255 N.W.2d
140, 146 (Iowa 1977). He or she need not endlessly await the
maturity of his or her natural parent. In
Interest of T.D.C.,
336 N.W.2d 738, 744 (Iowa 1983). Termination must occur if
enough time (twelve to eighteen months) has passed and the parent still
cannot take care of the child. Id.
In the instant case, the district
court terminated R.H.'s parental rights pursuant to Iowa Code sections
232.116(1)(b) and 232.116(1)(c) (Iowa Code Supp.1987). Section 232.116(1)(b)
provides that parental rights may be terminated where the court finds
that there is clear and convincing evidence that the child has been abandoned.
Iowa Code section 232.2(1) defines "abandonment of a child"
as:
[T]he
permanent relinquishment or surrender, without reference to any particular
person, of the parental rights, duties or privileges inherent in the parent-child
relationship. Proof of abandonment must include both the intention
to abandon and the acts by which the intention is evidenced. The
term does not require that the relinquishment or surrender be over any
particular period of time.
The identical statutory definition of abandonment is found in a
similar section of the Iowa Code, section 600A.2(16). The
Iowa Supreme Court interpreted this definition of abandonment as the giving
up of parental rights and responsibilities accompanied by an intent to
forego them. In
Interest of Goettsche,
311 N.W.2d 104, 106 (Iowa 1981). Iowa Code section 232.116(1)(c)
permits the juvenile court to terminate parental rights if the child
has been adjudicated in need of assistance, has been placed out of the
parent's custody for more than twelve of the last eighteen months, and
there is clear and convincing evidence that the child will suffer harm
specified in Iowa Code section 232.2(6) (1987) if returned to the parent.
See In re
K.L.C., 372 N.W.2d
223, 227 (Iowa 1985).
As we are dealing here with a
child who has been certified as eligible for tribal enrollment with the
Santee Sioux Indian Tribe, the Iowa statutory and case law are modified
in these termination proceedings by the provisions of the Indian Child
Welfare Act of 1978, Title 25, U.S.C.A., section 1901, et
seq. Specifically,
25 U.S.C.A. section 1912(f) provides that:
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.
The court in this case applied the above standard and concluded
that the statutory grounds for termination were supported by evidence
beyond a reasonable doubt. Upon our review of the record,
we agree with this conclusion. We are dealing here with a
father who has never met his child and has had absolutely no contact with
her. During his imprisonment he has not attempted any correspondence
with R.L.F., despite being given the opportunity to
do so, and has failed to provide any financial support for her. Other
than a generalized interest in the child, R.H. has made no effort to assume
a place of importance in R.L.F.'s life, and has continuously refused the
assistance of the DHS and the courts. "Parental responsibilities
include more than subjectively maintaining an interest in *602
a child. The concept requires affirmative parenting to the
extent it is practical and feasible in the circumstances." Interest
of Goettsche, 311 N.W.2d
at 106.
We
also agree with the court's reliance on Iowa Code section 232.116(1)(e)
as a ground for termination. The record indicates that R.H.,
31 at the time of trial, has spent at least ten years of his adult life
incarcerated. He has been previously convicted of criminal
trespass, public intoxication, aggravated robbery, burglary, assault while
participating in a felony, and assault with intent to commit murder. At
the time of trial, he was serving a sentence for possession of burglary
tools and had been placed in the segregated confinement unit of the prison,
due to his inability to live in the general prison population. According
to a letter from a prison counselor, R.H. could not be an effective custodial
parent for several years and would require extensive counseling in such
areas as parenting skills, anger control, substance abuse, vocational
training, and basic life skills. It is clear from the record
before us that R.H. is in need of extensive help in order to provide him
with the most basic parenting and living skills and R.H.'s history convinces
us, beyond any reasonable doubt, that R.L.F. would be imminently likely
to suffer harmful emotional and physical effects should R.H. be allowed
to assume a parenting role. Although R.H. has never had actual
physical custody of the child, we note that:
[a]
termination proceeding is not like a personal injury action where an injury
must be proved before damages may be recovered. The termination
statute is preventative as well as remedial. The statute mandates
action to prevent probable harm to children and does not require delay
until the harm is done.
Interest of Kester,
228 N.W.2d 107, 110 (Iowa 1975).
R.H. further argues that the court's
decision to terminate was not based on testimony of a "qualified
expert" within the meaning of the Indian Child Welfare Act. He
argues that DHS case worker Linda Vogel, who recommended termination,
was not a qualified expert because she is not a member of R.L.F.'s tribe
and does not have substantial experience with the delivery of child and
family services to Indians. Regardless of the merit of his
contention, R.H. failed to preserve error as to the trial testimony of
DHS case worker Vogel due to his failure to object to her testimony. Consequently,
his failure to object operates as a waiver of any improprieties in the
testimony. State v.
Johnson, 272 N.W.2d
480, 483 (Iowa 1978).
R.H. finally argues that the
State failed to meet its requirement of making "active
efforts" in providing him with remedial services and rehabilitative
programs. We find this claim to be without merit. The
record clearly indicates that the State made every effort to contact R.H.
and attempted to provide him access to therapy and counseling services.
We see no reason to delay the
termination of R.H.'s parental rights any further. R.L.F.
should not be forced to endlessly suffer the parentless limbo of foster
care. See
Long v. Long, 255 N.W.2d
140, 146 (Iowa 1977). She need not endlessly await the maturity
of her father. Interest
of T.D.C., 336 N.W.2d
738, 744 (Iowa 1983). The termination order is affirmed.
AFFIRMED.
437 N.W.2d 599
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