In the Interest of D.S.
2011 Iowa App. LEXIS 980
| Iowa Ct. App. | 2011Background
- Child born 2010 with prematurity and extensive medical needs; parents had minimal contact and prenatal care and did not establish ongoing care after birth.
- Ex parte removal issued Jan 25, 2010; child placed with DHS for foster care; Ho-Chunk Nation notified and intervened.
- Adjudicated CINA March 29, 2010; tribunal supported foster placement due to child’s medical needs and parental lack of understanding.
- Lozano (Ho-Chunk Nation social worker) testified as a qualified expert; opined custody by parents could cause serious damage; foster placement continued with goal of reunification.
- Parents’ involvement fluctuated; mother incarcerated for substantial periods; father also incarcerated and later drug-using; Wisconsin placement pursued per tribe’s preference; home study underway.
- Termination petition filed Jan 2011; termination hearings held Mar–Apr 2011; tribe disagreed, arguing for Indian home in Wisconsin and more time for reunification; child remained in foster-adopt placement pending adoption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Active efforts under ICWA | Tribe and parents contend active efforts were not adequately proven. | State argues active efforts were proven and ongoing. | Active efforts satisfied by clear and convincing evidence. |
| Qualified expert testimony | Termination should not be based without a qualified expert’s opinion supporting harm to child if returned. | Lozano qualified; her testimony supports termination under ICWA framework. | Lozano qualified; testimony supported termination decision. |
| Best interests and termination | Continuation with parents could be best for child given bonding and potential for reunification. | Child’s safety and medical needs require termination and permanent placement. | Termination in child’s best interests; adoption and stability favored. |
| Placement under ICWA | tribe preferred Wisconsin Indian foster placement; court should honor ICWA preferences. | ICWA placement preferences yield to child’s best interests and safety. | Placement not required to be addressed before termination; ICWA requirements satisfied by current and proposed permanency options; termination upheld with foster-adopt plan. |
Key Cases Cited
- In re P.L., 778 N.W.2d 38 (Iowa 2010) (three-step termination framework; best interests central)
- In re C.A.V., 787 N.W.2d 96 (Iowa Ct.App.2010) (ICWA expert testimony scope; culture as context, not determinative)
- In re J.L., 779 N.W.2d 481 (Iowa Ct.App.2009) (ICWA best-interests and tribal preferences balancing)
- In re S.M., 508 N.W.2d 732 (Iowa Ct.App.1993) (requirement to consider qualified expert testimony before termination)
- In re D.W., 791 N.W.2d 703 (Iowa 2010) (patience with troubled parents; statutory time limits for permanency)
- In re A.C., 415 N.W.2d 609 (Iowa 1987) (timing of termination vs. parental rights; hardship to child)