                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1782
                            Filed February 10, 2016


IN THE INTEREST OF K.C. AND J.P.,
Minor Children,

N.P., Mother,
Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Thomas W. Mott,

Judge.



      A mother with a history of substance abuse appeals the termination of her

parental rights to her thirteen-year-old son and nine-year-old daughter.

AFFIRMED ON CONDITION AND REMANDED.



      Alexander D. Smith of Parrish Kruidenier Law Firm, Des Moines, for

appellant mother.

      Thomas J. Miller, Attorney General, and Kathryn K. Lang, Assistant

Attorney General, for appellee State.

      John P. Jellineck of the Polk County Juvenile Public Defender, Des

Moines, attorney and guardian ad litem for minor children.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
                                       2


TABOR, Presiding Judge.

      This appeal presents the question whether article I, section 10 of the Iowa

Constitution extends the right to a jury trial to a mother defending against a

petition to terminate her parental rights. The mother contends the juvenile court

erred in denying her request to have jurors decide whether to sever the parent-

child relationship. She also argues the State did not prove a statutory basis for

termination and the court should have kept the family intact because her two

children lived with relatives, her teenaged son opposed the termination, and she

had a close bond with the children.

      Because the state constitutional provision listing “rights of persons

accused” does not apply to child welfare cases, we reject the mother’s jury trial

argument. We also find clear and convincing evidence in the record to support

terminating the mother’s relationship with her two children under Iowa Code

section 232.116(1)(f) (2013).    Further, we conclude the factors in section

232.116(3) do not outweigh the benefits of achieving permanency for K.C. and

J.P. Accordingly, we affirm the termination order. But we do so only on the

condition that the proceedings complied with the federal and state Indian Child

Welfare Acts (ICWAs).     Because the record raises questions concerning the

mother’s Indian heritage, but does not show ICWA compliance, we remand for

further proceedings.

I.    Background Facts and Proceedings

      The Department of Human Services (DHS) removed J.P. and K.C. from

their mother’s care in April 2014 after she was arrested for child endangerment,

possession of methamphetamine, and theft of a motor vehicle. The mother did
                                           3


not contest the removal in the juvenile court. The DHS placed thirteen-year-old

J.P. with his paternal grandmother and placed nine-year-old K.C. with her

maternal grandmother.

       The juvenile court adjudicated J.P. and K.C. as children in need of

assistance (CINA) in June 2014. The juvenile court noted the mother’s long

history of substance abuse.1      Her addictions had resulted in her three older

children, now adults, being removed from her care and placed under DHS

supervision in 2001.2       The mother also experienced domestic violence

perpetrated by J.P.’s father. J.P. and K.C. remained in their grandmothers’ care

throughout the CINA case.

       In July 2014, the mother was arrested for possession of drug

paraphernalia after police stopped her for erratic driving. After her arrest, she

submitted to substance abuse and mental health evaluations at United

Community Service (UCS).        The UCS therapist diagnosed her with cannabis

dependence and amphetamine dependence, as well as depression and PTSD.

The therapist developed a treatment plan for the mother.           The mother was

arrested again in August 2014 for illegal possession of prescription drugs and a

probation violation.   She was placed at the women’s residential correctional

facility until April 2015, when she was discharged to supervised probation. Her

employment and housing were unstable after her release. She had once-a-week

supervised visitation with K.C. and J.P.



1
  The forty-year-old mother testified to starting her marijuana use at age sixteen and
methamphetamine use at age nineteen.
2
  The mother had a forgery conviction in 2001.
                                             4


       On April 22, 2015, the State filed a petition to terminate the mother’s

parental rights.3 The petition cited Iowa Code section 232.116(1)(d), (f), (g), and

(l) as grounds for termination. The juvenile court held a termination hearing on

September 10, 2015. The court issued its decision terminating parental rights on

October 8, 2015, relying on all grounds cited in the State’s petition. The mother

filed a petition on appeal.

II.    Scope and Standards of Review

       We review de novo juvenile court cases involving the termination of

parental rights. In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). We will uphold a

termination order if it is supported by clear and convincing evidence of at least

one statutory ground under section 232.116(1). See In re D.W., 791 N.W.2d

703, 706 (Iowa 2010). “Clear and convincing” proof means we see no “serious or

substantial doubt as to the correctness of the conclusions of law drawn from the

evidence.” Id. We likewise review constitutional claims de novo. In re C.M., 652

N.W.2d 204, 209 (Iowa 2002). To the extent that this case involves interpretation

of chapter 232B, our review is for correction of errors at law. See In re J.C., 857

N.W.2d 495, 500 (Iowa 2014).

III.   Analysis of Mother’s Claims

       A.      Right to Jury Trial

       Before the termination trial, the mother’s attorney filed a motion for a jury

trial and jury demand, citing article 1, section 10 of the Iowa Constitution’s Bill of




3
 The petition also sought to terminate the parental rights of K.C.’s father, but he is not a
party to this appeal. The rights of J.P.’s father had been previously terminated.
                                             5


Rights.4    That section—entitled “Rights of persons accused”—provides as

follows:

       In all criminal prosecutions, and in cases involving the life, or liberty
       of an individual the accused shall have a right to a speedy and
       public trial by an impartial jury; to be informed of the accusation
       against him, to have a copy of the same when demanded; to be
       confronted with the witnesses against him; to have compulsory
       process for his witnesses; and, to have the assistance of counsel.

Iowa Const. art. I, § 10.

       The mother argued the framers of the Iowa Constitution intended the

phrase “in cases involving the life, or liberty of an individual” to extend the jury-

trial right beyond criminal prosecutions. She urged the phrasing and history of

article I, section 10 “demands that parents have the right to a jury trial in

termination of parental rights cases.”

       In concluding the state constitution did not guarantee parents the right to a

jury trial in termination proceedings, the juvenile court cited two delinquency

cases decided by the Iowa Supreme Court. See In re Johnson, 257 N.W.2d 47,

50 (Iowa 1977) (concluding “it is not constitutionally required to inject a jury into

the juvenile court setting”); see also In re A.K., 825 N.W.2d 46, 51 (Iowa 2013)

(observing neither statutory nor constitutional provisions guarantee juveniles the

right a jury trial). The juvenile court ruled it must “hear and decide” the case

without a jury.




4
  Neither in the juvenile court nor on appeal does the mother cite article I, section 9 of
the Iowa Constitution, which provides: The right of trial by jury shall remain inviolate; but
the general assembly may authorize trial by a jury of a less number than twelve men in
inferior courts; but no person shall be deprived of life, liberty, or property, without due
process of law.”
                                               6


       On appeal, the mother contends the juvenile court’s ruling was in error.

She asserts the Johnson holding “should probably be revisited” but, in the

meantime, asks us to limit its application to delinquency cases. She points to

case law describing the right to parent as a “fundamental liberty interest”

protected by the state constitution. See Callender v. Skiles, 591 N.W.2d 182,

190 (Iowa 1999). From that premise, she claims the action to terminate her

parental rights is a case involving the liberty of an individual, triggering her right

to a jury trial under article I, section 10.

       In response, the State argues we should extend the reasoning of Johnson

to termination-of-parental-rights hearings.         The Johnson majority opined the

drafters’ 1857 reference to liberty interests in article I, section 10 “should not

blindly mandate an absurd result because our forefathers had not yet seen fit to

establish a separate juvenile court system.”            257 N.W.2d at 50.        The State

asserts even stronger reasons exist for not allowing jury trials in child welfare

cases than in delinquency proceedings.5 For instance, a juvenile court judge is

familiar with the family by the time of the termination hearing and is in the best

5
  Only a handful of states currently permit or require jury trials in termination-of-parental-
rights cases. See In re Isaiah H., 828 N.W.2d 198, 219 n.8 (Wis. 2013) (Ziegler, J.,
dissenting) (listing Oklahoma, Texas, Virginia, Wisconsin, and Wyoming). Among those
states, courts in Oklahoma and Texas have interpreted their state constitutions as
providing the right to a jury trial in termination cases. See, e.g., In re J.N.F., 116 S.W.3d
426, 432 (Tex. App. 2003) (holding prison inmate was entitled to jury trial in action to
terminate his parental rights); A.E. v. State, 743 P.2d 1041, 1045–46 (Okla. 1987) (ruling
parents were entitled to a jury trial under an amendment that enlarged the state
constitutional right to jury trial beyond its scope under common law and expressly
provided for a jury trial in juvenile proceedings). In Virginia, Wisconsin, and Wyoming, a
parent’s right to a jury trial in a termination-of-parental-rights case is statutory, not
constitutional. See Edwards v. Arlington Cnty., 361 S.E.2d 644, 655 (Va. 1987)
(discussing discretionary nature of right to “advisory jury” in parental rights termination
hearing under Virginia Code section 16.1-296); Isaiah H., 828 N.W.2d at 213 (citing Wis.
Stat. § 48.01(1)); Matter of G.P., 679 P.2d 976 (Wyo. 1984) (citing Wyo. Stat. § 14-2-
312).
                                           7


position to make findings of fact and a determination about the children’s best

interests. Moreover, exposing the facts of a child welfare case to a jury would

violate the confidentiality requirement.

        The State’s points are well-taken, but we can reject the mother’s argument

based on the language of article I, section 10—specifically its reference to “the

accused.”     Our supreme court has held article I, section 10 “only applies to

criminal proceedings.” Atwood v. Vilsack, 725 N.W.2d 641, 650–51 (Iowa 2006)

(“It protects only the rights of an ‘accused,’ not the rights of an individual facing

potential civil commitment pursuant to Iowa’s SVP statute.”).        In Johnson, a

specially concurring justice reasoned that the child in a delinquency proceeding

was not “an ‘accused’ threatened with loss of liberty” within the meaning of article

I, section 10. 257 N.W.2d at 54 (McCormick, J., specially concurring) (explaining

restraint of liberty in juvenile proceeding was means of “ameliorative treatment”).

Like individuals subject to civil commitment and juveniles subject to delinquency

adjudication, parents responding to a petition to terminate their parental rights

are not “persons accused” within the meaning of article I, section 10.

Accordingly, the juvenile court was correct in denying the mother’s request for a

jury trial.

        B.     Statutory Ground for Termination

        Where, as here, the juvenile court terminates a mother’s parental rights on

more than one statutory ground, we may affirm if any ground is supported by

clear and convincing evidence. See In re S.R., 600 N.W.2d 63, 64 (Iowa Ct.

App. 1999). We focus on paragraph (f), which applies when a child (1) is four

years old or older; (2) has been adjudicated CINA; (3) has been removed from
                                        8


the physical custody of the parents for at least twelve of the last eighteen

months, or for the last twelve consecutive months and any trial period at home

has been less than thirty days; and (4) at the present time cannot be returned to

the parent’s custody. Iowa Code § 232.116(1)(f). Children cannot be returned to

a parent’s care if they would remain CINA or would be at risk of adjudicatory

harm. “Present time” is the time of the termination hearing. See In re C.B., 611

N.W.2d 489, 494–95 (Iowa 2000); see also In re A.M.S., 419 N.W.2d 723, 726

(Iowa 1988).

      In her petition on appeal, the mother argues the State did not prove by

clear and convincing evidence that her children could not be returned to her care.

She asserts the State did not provide evidence that she currently was using

drugs or that her mental health issues were “unresolved or causing problems.”

The mother took a different stance at trial. She testified she did not believe she

was ready for her children to come home with her at the time of the termination

hearing, but she thought “working towards them being able to come back with me

is a very strong possibility.” When asked how long it would take her to be ready

to resume care, she responded that it was not a “fair question” because she did

not know how long.

      We find clear and convincing evidence in the record to support termination

under paragraph (f). By the mother’s own admission, the children could not be

safely returned to her care at the time of the termination hearing. The State did

not have evidence regarding recent substance abuse because the mother

refused nine requests from the DHS to undergo drug testing by means of a

sweat-patch test. The mother testified she had heard “too many stories about
                                         9


false positives,” but she now realized she should have complied with the DHS

case plan.       She acknowledged her recent work history and housing were

unstable.    She remained on probation on the methamphetamine possession

conviction until May 2016.       The mother had not moved beyond weekly

supervised visitations with her children.     She had the opportunity for more

contact with K.C. but did not take advantage of that time with her daughter

because she did not get along with her own mother, who was caring for K.C.

The juvenile court acted appropriately in terminating her rights under section

232.116(1)(f).

       C.      Section 232.116(3) Factors

       The mother contests the juvenile court’s finding that “[n]one of the possible

conditions where the court need not order termination applies to the situation of

either of these two children.” The mother claims three factors under section

232.116(3) provide cause for not terminating. First, both children live with their

grandmothers. See Iowa Code § 232.116(3)(a) (“A relative has legal custody of

the child.”). Second, thirteen-year-old J.P. objected to the termination of her

parental rights. See id. § 232.116(3)(b) (“The child is over ten years of age and

objects to the termination.”).   And third, “both children would suffer negative

mental health repercussions if they lost their relationship with their mother.” See

id. § 232.116(3)(c) (“There is clear and convincing evidence that the termination

would be detrimental to the child at the time due to the closeness of the parent-

child relationship.”).

       None of the permissive factors under section 232.116(3) required the

juvenile court to forego termination of the mother’s relationship with the children.
                                        10

See In re P.L., 778 N.W.2d 33, 38 (Iowa 2010) (clarifying factors were not

mandatory). The DHS placed the children with their grandmothers during the

course of the CINA proceedings, but the grandmothers did not have “legal

custody” as required under section 232.116(3)(a). See A.M., 843 N.W.2d at 113.

While J.P. told his therapist he hoped the court would allow him to return to his

mother’s care, he was not able to verbalize for the therapist “why he thought that

should happen or how returning to mom may be in his best interest.”            The

therapist also testified J.P. had not consistently held that view and had at

different times during the CINA case expressed a preference for other

placements.     The therapist did not make a recommendation concerning

termination, but testified he was concerned that prolonging the uncertainty would

not be in J.P.’s best interest.     J.P. had recently engaged in self-harming

behaviors that required treatment, and the therapist believed the pending CINA

case contributed to J.P.’s anxiety. We agree with the juvenile court’s conclusion

that J.P.’s “mixed feelings” about the termination did not constitute a sound basis

for denying the State’s petition.

       Finally, the record does not contain clear and convincing evidence that

termination would be detrimental to J.P. and K.C. due to the closeness of their

relationship with their mother. The DHS worker testified they love their mother

and she loves them. The worker also acknowledged the termination will result in

“some disappointment” for the children.      But the evidence did not show the

children’s immediate disappointment would pose a long-term detriment. In fact,

the mother endorsed the children’s current placements with their grandmothers.

She testified J.P. was doing “wonderfully” with his paternal grandmother and “he
                                          11


belongs where he is.” She also agreed K.C. receives a great deal of support

from her maternal grandmother. The mother insightfully testified: “I know this has

gone on a long time which I don’t think is good for the children.” We agree with

the juvenile court that the children’s feelings of disappointment about the

termination of their mother’s parental rights do not weigh heavily against the

decision to provide them a permanent, adoptive home, likely with their respective

grandmothers.

IV.    Compliance with Indian Child Welfare Act

       Finally, we raise sua sponte an issue concerning compliance with the

state and federal ICWAs. See 25 U.S.C. §§ 1901–63 (federal ICWA); Iowa Code

ch. 232B (state ICWA); see also Matter of N.A.H., 418 N.W.2d 310, 311 (S.D.

1988) (holding ICWA is “primarily a jurisdictional statute” and appellate courts

“must examine jurisdictional questions whether presented by the parties or not”).

The mother testified at the termination hearing that she “get[s] money from the

Indian reservation” in the amount of $600 to $1000 per month. The juvenile court

quoted this testimony in its termination order. But the order did not mention

compliance with ICWA.        See Iowa Code § 232B.5(4) (providing court “shall

establish in the record that the party seeking . . . termination of parental rights

over . . . an Indian child has sent notice by registered mail” to the tribe).

       In the record available to us on appeal, we found four references to the

mother’s Indian heritage. First, when applying for the order of temporary removal

under section 232.78, the DHS filed an ICWA Affidavit on April 15, 2014, stating

that “Apache is the tribal affiliation of the child’s mother.” Second, in a July 22,

2014 report to the court, DHS worker Alaina Gage wrote: “ICWA will have to be
                                       12


explored, even though [the mother] was adopted she reports that she believes

that she is part of an Apache tribe in New Mexico.”        Third, an exhibit from

LabCorp, which confirmed paternity for K.C.’s father, noted the mother was an

America Indian.

      Fourth, in exhibits from the 2001 CINA proceedings involving the mother’s

older children, the county attorney notified the Jicarilla Apache Tribe in New

Mexico of the juvenile court proceedings, and a child protection worker contacted

the tribe’s intake specialist to inform him that mother agreed to temporary

placement with the maternal grandmother.

      In a dependency court proceeding in which the court knows or has reason

to know the children are Indian children, the federal ICWA requires notice to the

child’s tribe. 25 U.S.C. § 1912(a). Likewise, the tribal notice provisions of the

Iowa ICWA require the juvenile court to notify the proper Indian tribe whenever it

has reason to know that an Indian child may be involved in an involuntary

termination. In re R.E.K.F., 698 N.W.2d 147, 150–51 (Iowa 2005) (citing Iowa

Code § 232B.5(4)).

      Nothing in the record from the current CINA and termination cases

indicates the State or the juvenile court met the tribal notice requirements or

other mandates under chapter 232B. Chapter 232B is intended to protect Indian

families and tribes. In re D.S., 806 N.W.2d 458, 465 (Iowa Ct. App. 2011). Our

legislature enacted this chapter to clarify policies and procedures regarding

implementation of the federal ICWA. In re J.L., 779 N.W.2d 481, 485–86 (Iowa

Ct. App. 2009). “The ICWA has a dual purpose—to protect the best interests of

a child and preserve the Indian culture.” D.S., 806 N.W.2d at 465 (noting ICWA
                                         13


must be applied even where no evidence shows children were raised in Indian

culture). Our courts strictly construe the provisions of ICWA. Id.

        Because we cannot tell from the record before us if K.C. and J.P. were

determined to be Indian children under sections 232B.3(6) and 232B.4, or if the

State provided adequate notice to the tribe under section 232B.5, we can only

conditionally affirm the termination order. See In re R.E.K.F., 698 N.W.2d at

150–51; see also In re L.B.-A.D., No. 11-0456, 2011 WL 2112452, at *8 (Iowa Ct.

App. May 25, 2011).

       We remand the case to the juvenile court for a determination if the State

sent proper notice to the tribe under the federal and state ICWAs. If the tribal

notice requirement was satisfied and the children were not determined to be

Indian children, the juvenile court’s original termination order will stand. If the

notice requirement was not satisfied, the juvenile court shall direct the State to

send notice concerning the children’s tribal membership.         If the tribe fails to

respond within the appropriate timeframe or replies and determines the children

are not eligible for tribal membership, the termination order will stand. If the tribe

responds and intervenes, reversal of the termination order and further

proceedings consistent with the ICWA requirements will be necessary. We do

not retain jurisdiction.

       AFFIRMED ON CONDITION AND REMANDED.
