In re the Interest of Z.K., Minor Child ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0324
Filed June 16, 2021
IN THE INTEREST OF Z.K.,
Minor Child,
Z.K., Father,
Appellant,
J.K., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Mary Jane
Sokolovske, Judge.
The mother and father separately appeal the termination of their parental
rights to their child. AFFIRMED ON BOTH APPEALS.
Dean A. Fankhauser of Vriezslaar, Tigges, Edington, Bottaro, Boden &
Lessman, L.L.P., Sioux City, for appellant father.
Teresa Ann O’Brien, Sioux City, for appellant mother.
Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant
Attorney General, for appellee State.
Michelle M. Hynes of Juvenile Law Center, Sioux City, attorney and
guardian ad litem for minor child.
Considered by Vaitheswaran, P.J. and Tabor and Ahlers, JJ.
2
AHLERS, Judge.
The mother and the father separately appeal the termination of their
parental rights to Z.K., born in November 2016. The juvenile court adjudicated
Z.K. a child in need of assistance (CINA) on February 2, 2020. A termination
hearing was held November 18 and December 3. The court issued the termination
order on February 25, 2021.
“We review proceedings terminating parental rights de novo.” In re A.S., 906
N.W.2d 467, 472 (Iowa 2018) (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa
2014)). “We are not bound by the juvenile court’s findings of fact, but we do give
them weight, especially in assessing the credibility of witnesses.” Id. (quoting In
re D.W., 791 N.W.2d 703, 706 (Iowa 2010)).
I. Indian Child Welfare Act
The juvenile court determined the Indian Child Welfare Act (ICWA) does not
apply to this proceeding because the record does not show the child is an Indian
child under ICWA. See generally 25 U.S.C. § 1902 (“[I]t is the policy of this Nation
to protect the best interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of minimum Federal
standards for the removal of Indian children from their families and the placement
of such children in foster or adoptive homes which will reflect the unique values of
Indian culture . . . .”); Iowa Code § 232B.2 (2020) (“It is the policy of the state to
cooperate fully with Indian tribes and tribal citizens in Iowa in order to ensure that
the intent and provisions of the federal Indian Child Welfare Act are enforced.”).
Both parents appeal this determination.
3
“ICWA applies to child custody proceedings involving an Indian child.” In re
N.N.E., 752 N.W.2d 1, 7 (Iowa 2008). ICWA provides minimum standards for the
removal and placement of Indian children. Id. An “Indian child” is a child “that an
Indian tribe identifies as a child of the tribe’s community.” Iowa Code § 232B.3(6).
“[I]t is better to err on the side of . . . examining thoroughly whether the child is an
Indian child.” In re R.E.K.F., 698 N.W.2d 147, 149 (Iowa 2005).
The federal regulations provide guidance to the states in applying ICWA:
(a) State courts must ask each participant in an emergency or
voluntary or involuntary child-custody proceeding whether the
participant knows or has reason to know that the child is an Indian
child. The inquiry is made at the commencement of the proceeding
and all responses should be on the record. State courts must instruct
the parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian child.
(b) If there is reason to know the child is an Indian child, but
the court does not have sufficient evidence to determine that the child
is or is not an “Indian child,” the court must:
(1) Confirm, by way of a report, declaration, or testimony
included in the record that the agency or other party used due
diligence to identify and work with all of the Tribes of which there is
reason to know the child may be a member (or eligible for
membership), to verify whether the child is in fact a member (or a
biological parent is a member and the child is eligible for
membership); and
(2) Treat the child as an Indian child, unless and until it is
determined on the record that the child does not meet the definition
of an “Indian child” in this part.
25 C.F.R. § 23.107 (2020).
There is no dispute that no tribe claimed the child or the parents as
members of its community at the time of the termination hearing. Consistent with
the court’s duty to identify ICWA issues “at the commencement of the proceeding,”
the State filed a motion to determine the applicability of ICWA at the same time it
filed a motion for CINA adjudication, and notices were mailed to the relevant
4
authorities. See id. § 23.107(a). An October 2, 2019 letter from the Standing Rock
Sioux Tribe and an October 21, 2019 letter from the Oglala Sioux Tribe both state
the child is not a member of the respective tribe and is not eligible for enrollment.
These letters confirmed the child is not an “Indian child.” See id. § 23.107(b)(1).
Nevertheless, the ICWA director for the Oglala Sioux Tribe testified at the
termination hearing, stating he believed the child was eligible for enrollment with
the Tribe based on the mother’s ancestry and the Tribe intended to intervene in
the proceeding. However, the ICWA director acknowledged he does not have
authority to determine enrollment in the Tribe, and the Tribe did not file a motion
to intervene before the termination hearing.1 Furthermore, the ICWA director was
inconsistent as to whether the child was even eligible for enrollment in the Tribe,
at one time acknowledging the child’s ancestry may instead be with the Standing
Rock Sioux Tribe, which he does not represent. The ICWA director’s testimony on
the eve of termination is simply not enough to overcome the specific written
statements from the tribes already in the record. We agree with the district court
that the record available at the time of the termination hearing does not establish
the child is an “Indian child.” See Iowa Code § 232B.3(6). Therefore, ICWA does
not apply to this proceeding.
Before we leave this issue, we note our decision does not preclude a tribe
from intervening in the child’s future placement. As the juvenile court stated during
1 The transcript shows the mother attempted to introduce as an exhibit a motion to
intervene from the Tribe that identified another woman as the mother. The juvenile
court did not admit the document. To the extent the parents argue the court should
have admitted the Tribe as an intervenor based on this document, we agree the
Tribe was not an intervenor. See Iowa R. Civ. P. 1.407 (setting the substantive
and procedural requirements for intervention).
5
the termination hearing, additional evidence the child is an Indian child “could come
as late as an adoption hearing.” If appropriate, future tribal intervention is
consistent with ICWA’s stated purpose of placing a child in an environment “that
reflects the unique values of the child’s tribal culture and is best able to assist the
child in establishing, developing, and maintaining a political, cultural, and social
relationship with the child’s tribe and tribal community.” Id. 232B.2. Our decision
only finds that, based on the record available at the time of the termination hearing,
the record does not establish the child is an “Indian child.”
II. The Parents’ Progress
Both parents argue the juvenile court erred in terminating their parental
rights “despite the progress [they] made during the pendency of the case.”2 The
State asserts that simply raising “progress” does not present an issue for our
consideration on appeal.
Generally, “[t]ermination of parental rights under chapter 232 follows a
three-step analysis”: the statutory grounds for termination, the best interests of the
child, and permissive statutory factors. In re D.W., 791 N.W.2d 703, 706–07 (Iowa
2010) (citing Iowa Code § 232.116; In re P.L., 778 N.W.2d 33, 39 (Iowa 2010)). “A
broad, all encompassing argument is insufficient to identify error in cases of de
novo review.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). We simply cannot
identify a reviewable issue in the parents’ references to their “progress,” and we
will not craft an argument on their behalf. Hyler v. Garner, 548 N.W.2d 864, 876
2 The father raises the parents’ progress on behalf of himself and the mother. The
father may not raise arguments on behalf of the mother. In re D.G., 704 N.W.2d
454, 460 (Iowa Ct. App. 2005). Therefore, we do not consider the father’s
arguments about the mother’s progress.
6
(Iowa 1996) (“[W]e will not speculate on the arguments [a party] might have made
and then search for legal authority and comb the record for facts to support such
arguments.”).
Reading the parties’ arguments broadly, the parties at most question
whether the State proved the child would suffer “adjudicatory harm” if placed in
their care. This reference may invoke one element of at least one of the statutory
grounds for termination. See Iowa Code § 232.116(1)(f)(4) (allowing the juvenile
court to terminate parental rights if it finds “the child cannot be returned to the
custody of the child’s parents as provided in section 232.102,” among other
required findings). However, the juvenile court terminated both parents’ parental
rights under Iowa Code section 232.116(1)(b), (f), (g), and (l). Not all of these
grounds require the State to prove the child would suffer adjudicatory harm in the
parents’ care. In particular, section 232.116(1)(b) only requires the juvenile court
to find “clear and convincing evidence that the child has been abandoned or
deserted” in order to terminate parental rights. “When the juvenile court terminates
parental rights on more than one statutory ground, we may affirm the juvenile
court's order on any ground we find supported by the record.” In re A.B., 815
N.W.2d 764, 774 (Iowa 2012). Therefore, even if we were to read the parents’
references to their “progress” as a partial challenge to the statutory grounds for
termination, we would reject the parents’ challenge because they waived any
argument on at least one ground for termination. See Iowa R. App.
P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed
waiver of that issue.”).
7
Furthermore, we are not convinced the parents have made meaningful
progress. Both parents have long-standing issues with substance abuse. The
mother has previously had her parental rights terminated—voluntarily or
involuntarily—to seven other children due at least in part to substance abuse. The
mother now claims she has been sober since before removal and she is regularly
attending treatment and therapy for her substance-abuse and mental-health
issues. However, the mother provided no documentation or other evidence to
support her self-serving claims of sobriety, and she failed to regularly meet with
the Iowa Department of Human Services (DHS) so they could observe her
recovery efforts. The father has failed to complete a substance-abuse evaluation,
and he acknowledges he relapsed on October 24, weeks before the termination
hearing.
Because both parents failed to present a reviewable issue arising from their
claims of progress, we find any argument on this issue waived.
III. Efforts Toward Reunification
Both parents argue the DHS failed to make the required efforts toward
reunification. Specifically, the parents argue the heightened requirements of ICWA
apply before the State may terminate parental rights. See Iowa Code § 232B.5(19)
(requiring the State to show “active efforts” toward reunification before terminating
parental rights to an Indian child). However, as explained above, the record does
not show the child is an “Indian child,” and thus ICWA does not apply to this
proceeding.
The State is still required to provide “reasonable efforts” toward
reunification. See In re C.H., 652 N.W.2d 144, 147 (Iowa 2002) (“The State must
8
make reasonable efforts to provide services to a parent before termination
proceedings may be instituted.”). To the extent the parents challenge whether the
State made reasonable efforts, a parent must request additional or alternative
services “in an appropriate proceeding or at the appropriate time. In general, if a
parent fails to request other services at the proper time, the parent waives the issue
and may not later challenge it at the termination proceeding.” Id. at 148. “[V]oicing
complaints regarding the adequacy of services to a social worker is not sufficient.
A parent must inform the juvenile court of such challenge.” Id. While the parents
testified they requested additional services from the service providers, they failed
to make their request to the juvenile court prior to the termination proceeding.
Therefore, they have waived any argument on reasonable efforts. See id.Additionally, we note the DHS provided multiple services to the parents in both this
proceeding and the mother’s prior termination proceedings, including substance-
abuse and mental-health treatment and counseling, and the parents failed to stay
in regular contact with the DHS for this proceeding to take full advantage of the
offered services.
IV. Conclusion
We find the record at the time of the termination hearing does not show
ICWA applies to this proceeding. Furthermore, the parents failed to present a
reviewable issue arising from their claims of progress, and the parents waived any
claim for additional or alternative services. Therefore, we affirm the termination of
both parents’ parental rights.
AFFIRMED ON BOTH APPEALS.
Vaitheswaran, P.J., concurs, Tabor, J., dissents.
9
TABOR, Judge (dissenting).
For child-welfare cases, our legislature has adopted a policy of cooperation
with tribes to ensure that an Indian child, whenever possible, lives in a home that
“reflects the unique values of the child’s tribal culture.” Iowa Code § 232B.2 (2020)
(clarifying state policy and procedures for implementing federal Indian Child
Welfare Act (ICWA)).3 The legislative goal is to assist the child “in establishing,
developing, and maintaining a political, cultural, and social relationship with the
child’s tribe and tribal community.” Id. The first step in implementing that policy is
deciding whether the involved child is a tribal member or eligible for membership.
Id. § 232B.4; In re R.E.K.F., 698 N.W.2d 147, 151 (Iowa 2005) (“The provisions of
the Iowa ICWA do not apply until the court determines the children are ‘Indian’ as
defined in the Iowa ICWA.”). The majority decided Z.K. was not an Indian child. I
respectfully disagree.
“Indian child” means an unmarried person under age eighteen who is either
(a) a member of an Indian tribe or (b) is eligible for membership and is the biological
child of a member of an Indian tribe. 25 U.S.C. § 1903(4); see In re N.N.E., 752
N.W.2d 1, 7 (Iowa 2008) (recalling that In re A.W., 741 N.W.2d 793, 810 (Iowa
2007), held including “ethnic Indians” who were ineligible for tribal membership
was an unconstitutional aspect of the definition of Indian child in section
232B.3(6)).
3 The federal legislation emerged from rising concern over “the consequences to
Indian children, Indian families, and Indian tribes of abusive child welfare practices
that resulted in the separation of large numbers of Indian children from their
families and tribes through adoption or foster care placement, usually in non-Indian
homes.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989).
10
How is a child’s Indian status determined? ICWA grants a tribe “conclusive”
authority to identify its members and those eligible for membership:
A written determination by an Indian tribe that a child is a member of
or eligible for membership in that tribe, or testimony attesting to such
status by a person authorized by the tribe to provide that
determination, shall be conclusive. A written determination by an
Indian tribe, or testimony by a person authorized by the tribe to
provide that determination or testimony, that a child is not a member
of or eligible for membership in that tribe shall be conclusive as to
that tribe. If an Indian tribe does not provide evidence of the child’s
status as an Indian child, the court shall determine the child’s status.
Iowa Code § 232B.4(3) (emphasis added); accord R.E.K.F., 698 N.W.2d at 149(“Whether or not a child is an Indian child is, after all, a question for the tribe to
answer in the first instance. . . . Only if the Indian tribe does not provide evidence
of the child’s status as an Indian child may the juvenile court determine the matter
itself.”). We strictly apply the provisions of this law to protect Indian families. In re
C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). To that end, if there is doubt
about whether a child is an Indian child, “it is better to err on the side of giving
notice to the tribe and examining thoroughly whether the child is an Indian child.”
R.E.K.F., 698 N.W.2d at 149.
Admittedly, this case features mixed messages from the Oglala Sioux Tribe
on Z.K.’s eligibility for membership. In October 2019, Jason Little, then ICWA
director for the Oglala Sioux Tribe at the Pine Ridge Reservation in South Dakota,
sent notice to the Woodbury County Attorney’s office that Z.K. was not a member
or eligible to be enrolled as a member of the tribe. But at the termination hearing
in November 2020, David Michael Red Cloud, the new ICWA director for the Oglala
Sioux, testified that Z.K. was eligible for enrollment in his tribe. Red Cloud
explained that the tribe removed its former ICWA staff from office in August. Red
11
Cloud testified his predecessor, Little, “never did his due diligence” and “[t]hat’s the
reason why he got fired.” Without a challenge to Red Cloud’s authority to speak
for the tribe at the termination hearing, his testimony that Z.K. is eligible for
membership should have been conclusive under Iowa Code section 232B.4(3).
But the State did not accept Red Cloud’s attestation that Z.K. is an Indian
child.4 Instead, the assistant county attorney cross-examined Red Cloud about
Z.K.’s mother being enrolled in the Standing Rock Sioux Tribe, suggesting that her
status in a different tribe barred Z.K.’s enrollment as an Oglala Sioux. Red Cloud
gave no ground: “the mother is a full-blood Indian. There’s no way you can
determine that the kid is not an Indian. She’s at least a half Native American
regardless if it’s Standing Rock, regardless if it’s Oglala Sioux Tribe. We need the
time to figure this out.” On the time issue, Red Cloud explained that the COVID-
19 pandemic had stalled work at the Bureau of Indian Affairs (BIA). He testified:
“They haven’t done any enrollments since March of 2020.” Red Cloud later
clarified that short of certification by the BIA, the tribe can determine “in-house”
whether someone is eligible for membership. On that prerogative of the tribe to
determine its membership, Red Cloud testified: “[O]ur kids have suffered injustice
for a long time through the court system and been fostered out. So we intervene
on behalf of all cases in regards to anyone eligible to be Oglala Sioux tribal
members.”
4 For reasons that are unclear from the record, the State advocated strongly
throughout this child-welfare case that ICWA should not apply despite evidence
that Z.K.’s maternal relatives are tribal members. In March 2020, the assistant
county attorney filed a nine-page trial brief in support of the State’s request to find
that ICWA did not apply to the termination proceedings.
12
Still, after hearing Red Cloud’s testimony, the juvenile court denied the
tribe’s motion to intervene. The court professed that it did not have “sufficient
information or evidence” to support the motion. In its termination order, the juvenile
court found “ICWA remains not applicable to this child.”
The juvenile court was wrong on both findings. Under section 232B.4(3),
the court did not need to “determine the child’s status” because “a person
authorized by the tribe to provide that determination” did so. After hearing Red
Cloud’s testimony, the court had “conclusive” proof that Z.K. was eligible for
membership in the Oglala Sioux tribe and his mother was a tribal citizen. See Iowa
Code § 232B.4(3). What about the earlier letter indicating Z.K. is not an Indian
child? Even if the letter from the Oglala’s former ICWA director muddied the
waters, the court had—at a minimum—“reason to know” that Z.K. was an Indian
child. See 25 C.F.R. § 23.107(c) (2020) (explaining a state court has reason to
know a child involved in a custody proceeding is an Indian child if it receives that
information from an Indian Tribe). Under those federal regulations, the court
cannot ignore the distinct possibility that ICWA applies to the termination
proceedings but must “[t]reat the child as an Indian child, unless and until it is
determined on the record that the child does not meet the definition.”
Id. § 23.107(b)(2). Here is the relevant directive to state courts:
If there is reason to know the child is an Indian child, but the
court does not have sufficient evidence to determine that the child is
or is not an “Indian child,” the court must:
(1) Confirm, by way of a report, declaration, or testimony
included in the record that the agency or other party used due
diligence to identify and work with all of the Tribes of which there is
reason to know the child may be a member (or eligible for
membership), to verify whether the child is in fact a member (or a
13
biological parent is a member and the child is eligible for
membership) . . .
25 C.F.R. § 23.107(b)(1).
Contrary to that directive, the juvenile court forged ahead without confirming
Z.K.’s status and instead treated him as if he were not an Indian child. In doing
so, the court applied the wrong standard for terminating parental rights. See Iowa
Code § 232B.5(19) (requiring proof of “active efforts” to provide remedial services
to Indian child in termination case). I would reverse the termination order and
remand for further proceedings consistent with Z.K. status as an Indian child.