Opinion
No. 2-714 / 02-1146
Filed October 30, 2002
Appeal from the Iowa District Court for Poweshiek County, Michael R. Stewart, District Associate Judge.
Mother appeals from the order terminating her parental rights to two of her children. AFFIRMED.
Christopher A. Clausen of Boliver Law Firm, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General, and Kelly Bennett, Assistant County Attorney, for appellee-State.
Randy DeGeest, Oskaloosa, guardian ad litem for minor children.
Considered by Huitink, P.J., and Miller and Hecht, JJ.
Maureen C. is the mother of Jamie A., born on July 13, 1991, and Chance B., born on April 3, 1996. They were removed from Maureen's care by temporary removal order in October of 1998. Jamie was adjudicated in need of assistance on March 3, 1999, pursuant to Iowa Code section 232.2(6)(c)(2) (1999), and Chance was adjudicated on January 8, 1999, pursuant to section 232.2(6)(c)(2). On November 19, 2001, and September 17, 2001, respectively, the State filed petitions to terminate Maureen's parental rights to Jamie and Chance. Following a hearing the juvenile court granted the petitions and terminated Maureen's parental rights pursuant to section 232.116(1)(e) (2001). Maureen appeals from this order.
Now codified at Iowa Code section 232.116(1)(f) (Supp. 2001).
We review termination orders de novo. In re R.F., 471 N.W.2d 821, 824 (Iowa 1991). Our primary concern is the best interests of the child . In re C.B., 611 N.W.2d 489, 492 (Iowa 2000).
Maureen first asserts the juvenile court applied an improper standard of proof under the Indian Child Welfare Act (ICWA). 25 U.S.C. § 1901 (2001). In this case, the provisions of the ICWA modify Iowa statutory and case law. See In re B.M., 532 N.W.2d 504, 506 (Iowa Ct.App. 1995). Under Iowa law, the court may order termination of parental rights if there is clear and convincing evidence to support any of the grounds for termination set forth section 232.116. The ICWA, however, adds the following requirement:
Because Jamie and Chance are eligible for tribal membership in the Muscogee (Creek) Nation, the ICWA is applicable.
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).
The juvenile court applied the "clear and convincing" standard on all matters except for the question of whether Maureen's continued custody is "likely to result in serious emotional or physical damage" to Jamie and Chance. See 25 U.S.C. § 1912(f). Maureen asserts the "beyond a reasonable doubt" standard espoused in the federal statute should apply to all issues relating to the termination of her parental rights. We conclude the court properly applied the standards of proof in this matter. Under Iowa law termination of Maureen's parental rights could be ordered only if clear and convincing evidence supported termination under section 232.116. Proof beyond a reasonable doubt was required only with respect to the discrete issue presented in 25 U.S.C. § 1912(f).
On de novo review, we conclude termination was warranted under both Iowa law and the ICWA. Maureen's longstanding chemical dependency on alcohol and methamphetamine, her failure to meet the case plan goals for reunification, and her instability would beyond a reasonable doubt expose the children to serious emotional, and potentially physical, damage if they were to remain in her custody.
Maureen next asserts the Creek Nation tribe was given improper notice of the termination petition and inadequate time between the tribe's motion to intervene and the termination ruling. We conclude Maureen has failed to preserve these issues for our review in that they were not presented to or addressed by the juvenile court. An issue not presented in the trial court may not be raised for the first time on appeal. In re V.M.K., 460 N.W.2d 191, 193 (Iowa Ct.App. 1990).