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IN THE COURT OF APPEALS OF IOWA No. 7-932 / 07-1897 Filed December 28, 2007

IN THE INTEREST OF M.H., Minor Child, C.G., Father, Appellant, A.W.H., Mother, Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Linn County, Susan Flaherty, Associate Juvenile Judge.

A father and mother appeal separately from the juvenile court order terminating their parental rights. AFFIRMED ON BOTH APPEALS.

Cynthia Finley and Mary McGee Light, Cedar Rapids, for appellant father. Kara L. McFadden, Cedar Rapids, for appellant mother. Thomas J. Miller, Attorney General, Kathrine Miller-Todd, Assistant Attorney General, Harold Denton, County Attorney, and Kelly Kaufman, Assistant County Attorney, for appellee State. Paul Stenzel, Shorewood, Wisconsin, for intervenor Ho-Chunk Nation. Thomas O'Flaherty, North Liberty, for minor child.

Considered by Vogel, P.J., and Mahan and Zimmer, JJ.

2 ZIMMER, J. A father and mother appeal separately from the juvenile court order terminating their parental rights. We affirm on both appeals. I. Background Facts and Proceedings

Christopher is the father 1 and Antoinette is the mother of Mohaghany, born in December 2004. Mohaghany is Antoinette's fourth child. Her parental rights to her three older children were terminated in 2003. Antoinette is an

enrolled member of the Ho-Chunk Nation, an Indian Tribe. Mohaghany became an enrolled member of the tribe in June 2007. 2 Mohaghany was removed from her parents' care in October 2005 after Christopher led police on a high-speed chase on the interstate near Cedar Rapids with Antoinette and Mohaghany in the vehicle. When the police caught up to Christopher, they discovered Antoinette sitting in the passenger seat of the vehicle holding then nine-month-old Mohaghany in her lap. Antoinette admitted to the officers that both she and Christopher had been drinking that night. The incident was reported to the Iowa Department of Human Services (Department). At the beginning of its investigation, the Department learned Antoinette had sent Mohaghany to Wisconsin for a visit with Antoinette's grandmother. The grandmother was contacted, and she refused to return the child to Iowa. An ex parte temporary removal order was obtained, and Mohaghany was brought back
1

Antoinette was married to Richard when Mohaghany was born. He disputed paternity, and testing later revealed Antoinette's paramour, Christopher, was Mohaghany's biological father. Richard is not appealing the termination of his parental rights. 2 The Tribe was notified of the juvenile court proceedings pursuant to the state and federal Indian Child Welfare Acts (ICWA). The Tribe intervened and participated throughout the proceedings. It is not challenging the juvenile court's termination of parental rights order on appeal.

3 to Iowa where she was placed in foster care. Following a contested hearing, the juvenile court confirmed the removal due to concerns regarding Mohaghany's care, exposure to domestic violence, her parents' substance abuse issues, and Christopher's incarceration. The court adjudicated Mohaghany as a child in need of assistance (CINA) on January 5, 2006. Following adjudication, Christopher failed to maintain

contact with the Department and did not participate in any services. Antoinette, on the other hand, complied with drug testing requirements and took part in substance abuse treatment, domestic violence counseling, and parenting classes. She regularly visited with Mohaghany, demonstrated appropriate

parenting skills, and had a home that was safe and adequately furnished. The court accordingly entered a dispositional order in March 2006 returning Mohaghany to her mother's custody. The Department, however, remained concerned about Antoinette's ongoing relationship with Christopher. In mid-February 2006 the police found Christopher at Antoinette's apartment hiding under Mohaghany's crib. He was arrested due to outstanding warrants and violation of a protective order between him and Antoinette. In March 2006 shortly after Mohaghany was returned to her care, Antoinette reported she was assaulted by Christopher in her home while Mohaghany was present. One month later, Antoinette and Christopher got into an argument at a restaurant, and Christopher left with Mohaghany. He gave Mohaghany to an acquaintance he happened upon and asked her to return the child to Antoinette. In June 2006 Christopher kicked and punched Antoinette in the head while Mohaghany was present in the apartment.

4 Following the assault in June, the State obtained a temporary removal order and filed an application to modify the dispositional order that had returned Mohaghany to her mother's custody. A hair stat test was performed on The test was

Mohaghany after she was removed from Antoinette's home.

positive for cocaine. The juvenile court consequently entered an order in July 2006 modifying the dispositional order and returning custody of Mohaghany to the Department for placement in foster care. Antoinette continued to participate in services and regularly visited with Mohaghany. However, in September 2006 Christopher was discovered hiding in Antoinette's apartment with a gun after he failed to return to jail following a furlough. Antoinette was arrested a couple of weeks later and charged with possession of cocaine and public intoxication. In November 2006 Antoinette appeared at a dispositional review hearing smelling of alcohol and admitted she had been drinking before the hearing. The State filed a petition to terminate Antoinette's and Christopher's parental rights in January 2007. Shortly before the first termination hearing in March 2007, 3 Antoinette was arrested and charged with her third offense of operating while intoxicated. Following this arrest, it appears Antoinette stopped attending visits and participating in services. She did not maintain contact with her attorney or the Department, and she did not appear at the termination hearings. Christopher appeared by telephone at the first hearing because he was incarcerated and serving a five-year prison sentence.
3

Three termination hearings were held in this matter due to the State's difficulty in locating and serving Mohaghany's legal father, Richard. The hearings were also delayed to allow Mohaghany's enrollment process with the Tribe to be completed.

5 The juvenile court entered an order in October 2007 terminating Antoinette's parental rights pursuant to Iowa Code sections 232.116(1)(b), (g), and (h) (2007) and terminating Christopher's parental rights pursuant to sections 232.116(1)(b) and (h). Antoinette and Christopher appeal. II. Scope and Standards of Review

We review termination proceedings de novo. In re R.E.K.F., 698 N.W.2d 147, 149 (Iowa 2005). In this case, the provisions of the ICWA apply because Mohaghany is an "Indian child." 4 See 25 U.S.C.

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