In the Interest of C.C., Minor Child ( 2021 )


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  •                       IN THE COURT OF APPEALS OF IOWA
    No. 20-1716
    Filed November 23, 2021
    IN THE INTEREST OF C.C.,
    Minor Child,
    C.M., Father, and T.M.,
    Petitioners-Appellees,
    S.O., Mother,
    Respondent-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District
    Associate Judge.
    A mother appeals the termination of her parental rights. REVERSED AND
    REMANDED.
    Jane M. White of Gribble, Boles, Stewart & Witosky, Des Moines, for
    appellant.
    Julie A. Forsyth of Forsyth Law Office, P.L.L.C., Winterset, for appellees.
    Yvonne C. Naanep, Des Moines, attorney and guardian ad litem for minor
    child.
    Heard by Vaitheswaran, P.J., and Tabor and May, JJ.
    2
    MAY, Judge.
    The Iowa Indian Child Welfare Act (ICWA)1 imposes special requirements
    that must be met before a court may terminate parental rights to an Indian child.2
    See, e.g., Iowa Code § 232B.6(6)(a), .10(2). In this case, the juvenile court
    terminated a mother’s parental rights to an Indian child. But we conclude ICWA’s
    requirements were not met. So we must reverse the termination.
    I. Background Facts & Proceedings
    This case is about C.C. (the child), born in 2008. The child’s mother is
    enrolled in the Rosebud Sioux Tribe (the Tribe). The child is also eligible for
    enrollment in the Tribe. The parties agree the child is an “Indian child” for purposes
    of ICWA.
    In 2019, the child’s father commenced this action to terminate the mother’s
    parental rights under Iowa Code chapter 600A, our private termination statute. The
    Tribe intervened. A representative of the Tribe appeared at trial. The Tribe
    opposed termination of the mother’s parental rights.
    Following trial, the court concluded the father had met the requirements of
    both chapter 600A and ICWA. So the court terminated the mother’s parental
    rights. The mother appeals.
    1 The Iowa Indian Child Welfare Act is codified as Iowa Code chapter 232B (2019).
    Iowa Code § 232B.1. Section 232B.2 states, in pertinent part: “The purpose of the
    Iowa Indian child welfare Act is to clarify state policies and procedures regarding
    implementation of the federal Indian Child Welfare Act, Pub. L. No. 95-608, as
    codified in 25 U.S.C. ch. 21.”
    2 Section 232B.3(6) defines “Indian child” as “an unmarried Indian person who is
    under eighteen years of age or a child who is under eighteen years of age that an
    Indian tribe identifies as a child of the tribe’s community.”
    3
    II. Standard of Review
    We review private termination proceedings de novo. In re B.H.A., 
    938 N.W.2d 227
    , 232 (Iowa 2020). But we review statutory interpretation issues for
    correction of errors at law. In re C.A.V., 
    787 N.W.2d 96
    , 99 (Iowa Ct. App. 2010).
    III. Discussion
    On appeal, the mother claims termination was improper because the father
    failed to meet the requirements of chapter 600A and ICWA. We begin with the
    mother’s argument that the father failed to satisfy ICWA’s qualified-expert-witness
    requirement. When a court is “considering whether to . . . terminate the parental
    rights of the parent of an Indian child,” section 232B.10(2) obligates (“shall”) the
    court to
    require that qualified expert witnesses with specific knowledge of the
    child’s Indian tribe testify regarding that tribe’s family organization
    and child-rearing practices, and regarding whether the tribe’s culture,
    customs, and laws would support the . . . termination of parental
    rights on the grounds that continued custody of the child by the
    parent . . . is likely to result in serious emotional or physical damage
    to the child.
    See also Iowa Code § 232B.14(2)(g) (requiring “[a] court of competent jurisdiction”
    to “vacate a court order and remand the case for appropriate disposition” if there
    is a “[f]ailure to provide the testimony of qualified expert witnesses as required by
    this chapter”).
    In this case, the father did not designate his own “qualified expert witnesses
    with specific knowledge of the child’s Indian tribe.” See id. § 232B.10(2). Instead,
    the father relied on the testimony of the Tribe’s representative, Shirley Bad Wound.
    And it appears undisputed that Bad Wound is a “qualified expert witness” for
    purposes of ICWA. See id. § 232B.10 (defining “qualified expert witness” for
    4
    purposes of ICWA). It also appears undisputed that Bad Wound—the Tribe’s
    representative—had “specific knowledge of the child’s Indian tribe.”          See id.
    § 232B.10(2).
    Instead, the dispute centers on the content of Bad Wound’s testimony. To
    be sure, Bad Wound testified about “th[e] [T]ribe’s family organization and child-
    rearing practices” as well as other aspects of the Tribe’s culture. See id. But Bad
    Wound did not testify as to “whether”—in the words of section 232B.10(2)—“the
    [T]ribe’s culture, customs, and laws would support the . . . termination of parental
    rights on the grounds that continued custody of the child by the parent . . . is likely
    to result in serious emotional or physical damage to the child.” Indeed, the juvenile
    court expressly found that Bad Wound “did not give an opinion as to whether not
    terminating [the mother’s] parental rights would cause severe emotional or physical
    damage to” the child.     And the father’s brief acknowledges that Bad Wound
    “decline[d] to give an opinion of whether continued custody of [the child] by [the
    mother] would result in serious emotional or physical damage.”3
    So it appears section 232B.10(2) was not satisfied and, therefore,
    termination was improper. Even so, we have carefully considered the father’s
    counterarguments. We think they boil down to four points:
    1.     The purpose of ICWA’s qualified-expert-testimony requirement “is to
    provide the court with knowledge of the social and cultural aspects
    3 Nor does it appear Bad Wound was prepared to provide that sort of opinion: As
    the juvenile court found, Bad Wound was not acquainted with the child or the
    mother. And Bad Wound testified she had received no summary of the family’s
    information. But it appears Bad Wound had learned some details from the parties’
    lawyers. For one thing, she knew the child had been raised by grandparents.
    5
    of Indian life to diminish the risk of any cultural bias.” See In re
    L.N.W., 
    457 N.W.2d 17
    , 18 (Iowa Ct. App. 1990) (citation omitted).
    2.     Bad Wound provided the court with information about “the tribe’s
    culture, customs, and laws.” See Iowa Code § 232B.10(2).
    3.     The juvenile court expressly found “that no cultural bias against” the
    mother “as an Indian parent [was] present, either explicitly or
    implicitly, in the decision as to whether or not to terminate” the
    mother’s rights.
    4.     Therefore, ICWA’s qualified-expert-testimony requirement was
    fulfilled even though Bad Wound did not testify as to whether “the
    tribe’s culture, customs, and laws would support the . . . termination
    of parental rights on the grounds that continued custody of the child
    by the [mother] is likely to result in serious emotional or physical
    damage to the child,” as section 232B.10(2) appears to require.
    We disagree. For one thing, the father has not cited—and we have not
    found—any binding authority that requires us to adopt the father’s interpretation of
    ICWA’s requirements. Cf. NCJC, Inc. v. WMG, L.C., No. 19-0241, 
    2020 WL 2478670
    , at *2 (Iowa Ct. App. May 13, 2020) (“In all matters, though, we must
    follow the precedents of our supreme court.”), aff’d on further review, 
    960 N.W.2d 58
     (Iowa 2021). For example, although the father cites our published decision in
    C.A.V., it is readily distinguishable. 
    787 N.W.2d at 102
    . Unlike here, the qualified
    expert witness in C.A.V. opined that the parent’s “continued custody . . . was likely
    to result in serious emotional damage to the child.” 
    Id.
    6
    The father also cites In re L.N.W. 
    457 N.W.2d 17
    , 18 (Iowa Ct. App. 1990).
    But the issue in L.N.W. was the expert’s qualifications, not the content of the
    expert’s testimony.     
    Id.
     (noting “appellant’s argument centers on whether
    Ms. Schmitt is a qualified expert witness within the meaning of” the federal Indian
    Child Welfare Act).
    Finally, the father cites In re D.S. 
    806 N.W.2d 458
    , 469 (Iowa Ct. App.
    2011). In D.S., we observed that section 232B.10 does not require the expert to
    “recommend or consent to termination, or agree that the child would likely be
    subject to serious emotional or physical harm if returned home.”           Id. at 471
    (emphasis added). Even so, D.S. did not alter section 232B.10’s requirement that
    the expert testify as to “whether” termination would be supported on those grounds.
    Rather, D.S. confirmed that
    [t]he qualified expert witness should have “specific knowledge of the
    child’s Indian tribe” and should testify “regarding that tribe’s family
    organization and child-rearing practices,” and whether the tribe’s
    “culture, customs, and laws” would support the termination of
    parental rights “on the grounds that continued custody of the child by
    the parent . . . is likely to result in serious emotional or physical
    damage to the child.”
    Id. at 469 (emphasis added) (quoting Iowa Code § 232B.10(2)).
    This reading of D.S. aligns with our traditional principles of statutory
    interpretation.    Those    principles   require   us   to   find   the   meaning    of
    section 232B.10(2) in its text, in the “words chosen by the legislature.” See State
    v. Childs, 
    898 N.W.2d 177
    , 184 (Iowa 2017) (citation omitted). And as D.S.
    acknowledged, the words of section 232B.10(2) plainly require qualified-expert
    testimony as to “whether the tribe’s culture, customs, and laws would support the
    . . . termination of parental rights on the grounds that continued custody of the child
    7
    by the parent . . . is likely to result in serious emotional or physical damage to the
    child.” See 806 N.W.2d at 469. We cannot ignore these words or the requirements
    they create. See Maguire v. Fulton, 
    179 N.W.2d 508
    , 510 (Iowa 1970) (“Effect
    must be given, if possible, to every word, clause and sentence of a statute.”);
    Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
    174 (2012) (“None should be ignored.            None should needlessly be given an
    interpretation that causes it to . . . have no consequence.”). Rather, our duty is to
    enforce them. See Holland v. State, 
    115 N.W.2d 161
    , 164 (Iowa 1962).
    It is true our decisions have often said or implied that the purpose of ICWA’s
    qualified-expert-testimony requirement “is to provide the court with knowledge of
    the social and cultural aspects of Indian life to diminish the risk of any cultural bias.”
    D.S., 806 N.W.2d at 470 (citation omitted); In re D.W., No. 00-1677, 
    2001 WL 710205
    , at *3 (Iowa Ct. App. June 13, 2001); In re A.V.S., Nos. 1999-427, 9-680,
    99-0376, 
    2000 WL 18858
    , at *4 (Iowa Ct. App. Jan. 12, 2000); In re J.D.B., 
    584 N.W.2d 577
    , 582–83 (Iowa Ct. App. 1998) (citation omitted); In re S.M., 
    508 N.W.2d 732
    , 734 (Iowa Ct. App. 1993) (citation omitted); In re L.N.W., 
    457 N.W.2d 17
    , 18 (Iowa Ct. App. 1990) (citation omitted); accord In re F.K., No. 21-0901, 
    2021 WL 4592828
    , at *3 (Iowa Ct. App. Oct. 6, 2021); C.A.V., 
    787 N.W.2d at 102
    . But
    those    general   observations     do   not—they     cannot—change        the    specific
    requirements imposed by the words of section 232B.10(2). Cf. Scalia & Garner,
    Reading Law, at 56–57 (noting that statutory purpose “must be derived from the
    text” and “cannot be used to contradict text or supplement it”).                 So those
    observations do not mean section 232B.10(2) was satisfied just because Bad
    Wound provided the juvenile court with some information about the tribe’s culture
    8
    and customs. Nor do they mean section 232B.10(2) was satisfied just because
    the juvenile court found that “no cultural bias against” the mother “is present.”
    Rather, as the legislature’s words make clear, section 232B.10(2) cannot be
    satisfied unless there is qualified-expert-witness testimony about “whether the
    tribe’s culture, customs, and laws would support the . . . termination of parental
    rights on the grounds that continued custody of the child by the parent . . . is likely
    to result in serious emotional or physical damage to the child.” Because that
    testimony was not presented here, section 232B.10(2) was not satisfied. So we
    must reverse.4 Cf. D.W., 
    2001 WL 710205
    , at *5 (reversing termination order
    where “[t]he State . . . failed to meet the requirements of [the federal Indian Child
    Welfare Act] because it did not present the testimony of a qualified expert witness
    ‘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’” (quoting 
    25 U.S.C. § 1912
    (f))).
    REVERSED AND REMANDED.
    4   We do not reach any of the mother’s other arguments.