In the Interest of T.F and T.F., Minor Children ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0243
Filed July 21, 2021
IN THE INTEREST OF T.F. and T.F.,
Minor Children,
T.F., Father,
Appellant,
THE OMAHA TRIBE OF NEBRASKA,
Appellant-Intervenor.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Susan Cox, District
Associate Judge.
The father and the intervenor-tribe appeal after the juvenile court terminated
the father’s parental rights. AFFIRMED ON BOTH APPEALS.
Jonathan M. Causey of Causey & Ye Law, P.L.L.C., Des Moines, for
appellant father.
Alexis Zendejas, Macy, Nebraska, tribal representative for appellant-
intervenor the Omaha Tribe of Nebraska.
Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney
General, for appellee State.
Erin E. Mayfield of Youth Law Center, Des Moines, attorney and guardian
ad litem for minor children.
Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2
GREER, Judge.
This appeal involves the parental rights to T.F. and T.F., born in 2017 and
2019. The mother and father of the children are enrolled members in the Omaha
Tribe of Nebraska, and both T.F. and T.F. are an “Indian child.” 1 The tribe
intervened early in the child-in-need-of-assistance (CINA) proceedings for the
older child—the youngest was not yet born at the time—and has participated
throughout.2 In early 2021, the juvenile court terminated both parents’ rights under
Iowa Code section 232.116(1)(h).3
The father and the tribe appeal. The father maintains (1) we should
consider his petition even though his notice of appeal was untimely because the
delay is due to ineffective assistance from his counsel; (2) the juvenile court erred
when it denied his motion to have the proceedings transferred to the jurisdiction of
the tribal court; (3) the State failed to meet its burden to terminate his rights under
1 “‘Indian child’ . . . means an unmarried Indian person who is under age 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.” Iowa Code § 232B.6 (2020)
2 Both for part of the proceedings in the juvenile court and here on appeal, the tribe
is represented by Alexis Zendejas. She is not admitted to practice law in Iowa, but
“[a] tribe may appear in court through a non-lawyer representative in [Indian Child
Welfare (ICWA)] proceedings.” In re N.N.E., 752 N.W.2d 1, 13 (Iowa 2008); see
also U.S. Dep’t of the Interior Off. of the Assistant Sec’y—Indian Affairs, Guidelines
for Implementing the Indian Child Welfare Act, at 8 (Dec. 2016), available at
https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/pdf/idc2-056831.pdf (“[One]
barrier to Tribal participation in State court proceedings is that the Tribe may not
have an attorney licensed to practice law in the State in which the Indian child
custody proceeding is being held. Many tribes have limited funds to hire local
counsel. The Department encourages all State courts to permit Tribal
representatives to present before the court in ICWA proceedings regardless of
whether they are attorneys or attorneys licensed in that State, as a number of State
courts have already done.”).
3 The mother’s parental rights were also terminated under section 232.116(1)(l).
She did not attend either day of the two-day termination hearing, and she does not
appeal.
3
ICWA; and (4) the State failed to make “active efforts” as mandated by ICWA. In
a separate appeal, the tribe argues the juvenile court (1) erred by using the “clear
and convincing” standard instead of the “beyond a reasonable doubt” standard as
ICWA requires; (2) erred in relying on only one qualified expert witness (QEW) and
in using their testimony outside the scope of ICWA’s requirements for a QEW; (3)
was wrong to find the State made “active efforts”; and (4) should have granted the
motion to transfer jurisdiction to the tribe.
I. Prior Facts and Proceedings.
The Iowa Department of Human Services (DHS) first became involved with
this family upon the birth of the oldest child, in September 2017, when both the
mother and child tested positive for marijuana. The mother and father agreed to
not use illegal drugs around the child, and each stated they would obtain a
substance-abuse evaluation; DHS did not pursue further involvement with the
family.
Over the next year, local police were called to the father’s and mother’s
residence multiple times, including upon reports the mother was in danger from
the father, that he took her phone and would not let her call for help, and that he
spent days whipping the mother with an electrical cord and kicking her in the head.
In relation to these calls, the father pled guilty to obstruction of emergency
communications and interference with official acts in July 2018 and domestic
abuse assault with intent to inflict serious injury in November 2018. The court
granted the father probation for the domestic abuse assault conviction and, at the
mother’s request a few days later, dismissed the no-contact order between the
father and mother.
4
Later that same month, while pregnant with the younger child, the mother
went to the hospital with stomach pains. While she was there, she tested positive
for methamphetamine and marijuana. According to DHS reports, the father was
not tested for drugs but admitted to workers that he used methamphetamine and
marijuana. DHS then opened another child-abuse investigation regarding the
older child and requested removal of the child from the parents’ care. Both the
mother and the father consented to temporary removal and confirmed their
consent to continued removal at the later hearing. The child was placed in the
custody of the maternal great grandmother with DHS supervision.
The older child remained in the care of the great grandmother from the end
of November 2018 until January 14, 2019. During that time, the father twice
removed the child from the home. The first time, the great grandmother
immediately called DHS, which involved the police, and they were able to get the
child from the father relatively quickly. The second time, the great grandmother
waited five days to alert anyone what the father had done. Again, DHS
professionals and police were involved in getting the older child returned to the
great grandmother’s care. Due to these safety concerns, DHS told the great
grandmother a new custodian was needed for the child. The State asked the court
to modify placement, and the request was granted.
Also on January 14, 2019, the tribe filed a motion to intervene in the child-
welfare proceedings. It was granted by the court.
The younger child was born in February and removed from the parents’ care
one day later.
5
At the agreement of all parties, the children were placed in the mother’s
care under DHS supervision on February 26.4 As part of the return to the mother’s
care, she agreed she would reside with the children in a domestic violence shelter.
Then, on March 1, the police were called to the parents’ residence; the mother
reported the father had assaulted her multiple times that day and officers observed
extensive bruising. Two days later, the father was arrested for domestic abuse
assault, second offense. Additionally, the father’s probation officer filed a violation
report. He remained in jail for approximately six months.
On March 4, the State filed a request to have the children removed from the
mother’s care because she never moved to the shelter and instead continued living
with the father. The court granted the request for removal, and the children were
returned to foster care.
On March 5, Mosiah Harlan, the ICWA supervisor with the Omaha Tribe of
Nebraska and a designated QEW on ICWA matters, filed an affidavit with the court.
In it, Harlan stated, “Based upon the facts, it is my expert testimony that continued
custody of the children by their custodial parents is likely to cause serious
emotional and physical damage to the children at this time.”
The children were returned to the mother’s care in late March; she agreed
to live with the children’s great aunt. Shortly after the children were returned, DHS
received reports drugs were being used in the home. DHS asked the great aunt
to complete a drug test, which she delayed for more than a month. Between mid-
April and early May, the mother twice tested positive for methamphetamine and
4 The children were still removed from the father’s care.
6
amphetamines. Additionally, the aunt reported to DHS that the mother was absent
for long periods of time, leaving the children in her care.
The State again moved to modify placement, which the court granted on
May 8, 2019. The children were placed in the care of the great aunt. They never
returned to either parent’s care again.
Placement with the great aunt was short-lived. The aunt waffled on whether
she could continue to care for the children and she was not consistent in taking
them to scheduled or needed medical appointments. Additionally, she was
experiencing issues with housing instability; she reported to DHS that her landlord
sold her home and she needed to move somewhere else within a short timeframe.
After the great aunt’s delay in completing her first drug test, DHS sent the drug
tester directly to the aunt’s home for a second test—to alleviate some of the issues
the aunt said led to the first long delay. The aunt refused to be tested at that time;
she waited nearly a week before completing the test, which came back negative
for all illegal substances. Following a review hearing in mid-June, the children
were moved from the great aunt’s home to a foster placement with non-Native
American foster parents. The children remained in this foster home at the time of
the termination hearing.
The mother continued to use methamphetamine and did not go into
inpatient treatment when a bed was available for her. In spite of several serious
mental-health diagnoses, the mother did not attend therapy or mental-health
treatment.
The father was released from jail on August 31, 2019. He and the mother
immediately continued their relationship, and it remained marred by violence. In
7
mid-September, the parents came to a visit together. The service provider told
them they could not attend together, and the father left angrily. After he was gone,
the mother told the provider she and the father had been fighting, he had taken her
phone, and manipulated her using the children. She expressed that she was
unsure she felt safe. The provider helped the mother call a domestic violence
hotline; the mother was advised to go to the courthouse to obtain a no-contact
order, and the provider drove the mother to the courthouse to do so. Yet the
mother and father continued to live together.
Shortly after, on October 30, the father was jailed again. The father claimed
he was in jail because he “just cut a little bit of [the mother’s] hair.” He remained
in jail until December 3. The father was out of custody from December 3, 2019
until January 17, 2020. He completed a mental-health evaluation during this time,
and it was recommended the father participate in mental-health therapy. The
father and mother again attended a visit together, in spite of the no-contact order.
The provider noted both were “very under the influence” and “very emotional.”
The father was jailed again on January 17. He remained in the local jail
until he was sent to prison in June, where he was still incarcerated at the time of
the termination hearing in December. He had no visits or interactions with the
children during this time.
On January 20, the juvenile court entered a permanency order changing the
permanency goal to termination of the parents’ rights.
Then on February 25, the tribe filed a motion to transfer jurisdiction of the
cases to the Omaha Tribal Court. About four months later, the father also moved
8
to transfer the jurisdiction to tribal court. The children’s guardian ad litem (GAL)
resisted.
The hearing on the motion to transfer took place over two days in June and
July. The mother did not participate on the first day because she had been
committed under a substance-abuse and a mental-health order, but her attorney
participated and represented her at the transfer hearing. The mother participated
in the second day of the hearing.
On September 20, the court denied the motions to transfer, finding good
cause to deny the requests based on the children’s objection to the transfer and
their best interests. The court ruled:
First, during the past 19 months, the State, [court-appointed
special advocate], and [service providers] have provided excellent
supportive services for the children and the parents. They have
strong relationships with the children and fully understand the
parents’ challenges. [The older child] has suffered from repeated
traumas—due to her parents’ substance abuse, instability and
domestic violence. The father has twice taken [her] from
placements—in violation of the court’s orders. Professionals had to
intervene to protect [the older child] from the father’s explosive
temper, in two potentially explosive situations. Also, [the child] has
historically struggled in adjusting to strangers. It would be cruel to
transfer her case to new professionals.
Second, the Iowa Juvenile Court is best situated for litigation
of the custody of the children and parental rights of the parents. In
[the older child’s] case, the court has been involved for over nineteen
months and in [the younger child’s] case, for sixteen months. The
proceedings are at an advanced stage. The Iowa Juvenile Court has
spent days with the parents—for contested litigation—and
repeatedly made accommodations to ensure the mother’s safe
participation in court. A permanency order with respect to these
children was entered on January 20, 2020. A petition to terminate
parental rights has been on file for over five months and a hearing
on the petition to terminate parental rights was originally scheduled
to begin over four months ago. These children are in need of
permanency stability and safety. This need is paramount and can
best be met through a denial of the request to transfer jurisdiction
and proceeding with scheduled hearings in this jurisdiction.
9
Third, the children’s present placement is not a Native
American home. However, in the present placement, through the
foster parents’ efforts, the children have had continued involvement
and access to the Omaha Tribe as well as other Native American
tribes, events, families, and culture. The foster parents have
requested additional involvement, resources, and information
directly from the Omaha Tribe to benefit the children and their Native
American heritage and the Omaha Tribe has not responded leaving
the bulk of the engagement for the children with their Native
American heritage on the foster parents and the Iowa Department of
Human Services. Keeping the case with the Iowa Juvenile Court
does not prevent maintaining the vital relationship between Indian
tribes and tribes’ children and does not “interfere with the policy that
the best interest of an Indian child require that the child be placed in
a foster or adoptive home that reflects the unique values of Indian
culture.”
A two-day termination hearing was held on December 9 and 10, 2020. The father
participated remotely from prison; the mother did not attend or participate either
day. The father testified his discharge date was in February 2021. He also testified
no one could stop him from being in contact with the mother, stating,
[The no-contact order is] going to be violated—there’s going to be
multiple cases here from now, in a year from now, two years from
now, three years from now, after all this is said and done, that are
continuing to violate that no-contact order. Why? Because there’s
families out here, man.
You’re not going to tell me to stop talking to [the mother].
Nobody else is going to tell me to stop talking to [the mother]. I’ll
choose to do that if I want to.
In early February 2021, the juvenile court issued its termination order. As it was
clear neither parent could resume caring for the children at the time of the
termination hearing, the court concluded “[t]he issue is whether DHS provided the
parents active efforts pursuant to the Indian Child Welfare Act.” The court noted
ways DHS went above and beyond for the family early in the proceedings,
including physically helping the mother pack and move her things to a storage unit,
which DHS paid for, so she could move away from the father. Additionally, a
10
service provider drove the mother to the courthouse to obtain a no-contact order
when she felt unsafe. And extra services were provided to family members in an
attempt to maintain the children’s placement with them to keep the children in a
home with their Native American family members. Importantly, the court
continuously found active efforts were being made in its orders, and neither parent
ever objected to the findings nor requested additional or different services. The
court terminated both parents’ rights under section 232.116(1)(h).
The father and the tribe appeal.
II. Standard of Review.
Generally our review of the termination of parental rights is de novo and we
uphold an order terminating parental rights when clear and convincing evidence
supports termination. In re D.S., 806 N.W.2d 458, 465 (Iowa Ct. App. 2011).
“In addition to this analysis, Iowa Code chapter 232B sets forth [ICWA],
which extends further protections to Indian families and tribes.” Id. ““[T]ermination
of the parental rights of an Indian child shall not be ordered unless supported by
evidence beyond a reasonable doubt that ‘the continued custody of the child by
the child’s parent or Indian custodian is likely to result in serious emotional or
physical damage to the child.” Id. (quoting Iowa Code § 232B.6(6)(a)). “ICWA has
a dual purpose—to protect the best interests of a child and preserve the Indian
culture,” and we strictly construe the provisions of ICWA to these ends. Id.
“[W]e review the juvenile court’s denial of a motion to transfer jurisdiction
under section 232B.5 for correction of legal error.” In re E.D., No. 16-0829, 2016
WL 4379382, at *3 (Iowa Ct. App. Aug. 17, 2016) (citing In re J.L., 779 N.W.2d
481, 485 (Iowa Ct. App. 2009)).
11
II. Analysis.
The issues raised by the father and the tribe often overlap, and while their
appeals are separate, we consider those closely-related issues together.
A. Father’s Delayed Appeal.
To begin, we determine whether we should consider the merits of the
father’s petition on appeal even though his notice of appeal was admittedly
untimely by one day.5 The father’s attorney explained that it was his mistake that
led to the notice of appeal being filed late, as he counted the fifteen days by the
date the amended termination order was available on EDMS6 rather than the date
the court filed the order.7 He asked for an extension of time to file a timely notice
of appeal, and our supreme court ordered us to consider the issue.
The father’s attorney raised this issue under a claim of ineffective
assistance of counsel, but our consideration is guided by our supreme court’s
recent case law on this issue. In In re W.M., 957 N.W.2d 305, 316 (Iowa 2021),
the supreme court considered “whether to extend the delayed appeal process [it
had] recognized in criminal cases to termination-of-parental-rights cases.” Accord
In re A.B., 957 N.W.2d 280, 289–93 (Iowa 2021) (considering whether to accept a
delayed petition on appeal in a chapter 232 termination). The court ultimately
5 The juvenile court’s amended TPR order was filed February 7, 2021, and the
father’s notice of appeal was not filed until February 23—sixteen days later. See
Iowa R. App. P. 6.101(1) (requiring a notice of appeal in chapter 232 termination
cases to be filed “within 15 days”).
6 EDMS stands for electronic document management system.
7 According to the timestamp, the court filed the amended order at 8:54 p.m. on
February 7, 2021, which was a Sunday night. According to the father’s attorney,
the order was not available to him until February 8, and he erroneously relied on
that date.
12
recognized that “[d]elayed appeals are an exception to our jurisdictional rules.”
W.M., 957 N.W.2d at 316. Still, the court placed limits on which delayed appeals
would be accepted, stating it would “consider a delayed appeal ‘only where the
parent clearly intended to appeal and the failure to timely perfect the appeal was
outside of the parent’s control.’” Id. (quoting A.B., 957 N.W.2d at 292).
Additionally, in determining whether to accept the father’s delayed appeal, we must
“consider the timing of the appeal” because we “will not allow a delayed appeal to
prolong the appeal process.” Id. “The delay must be ‘no more than negligible.’”
Id. (quoting A.B., 957 N.W.2d at 292). In W.M., the father’s notice of appeal was
filed two days late, and the court concluded the father’s petition on appeal could
be considered. 957 N.W.2d at 316–17. So clearly the one-day delay of the father
here is also negligible. And the father’s attorney admitted the delay was
attributable to him—not the father. For these reasons, we accept the father’s
delayed appeal and proceed to consider the merits.
B. Motions to Transfer Jurisdiction.
Both the father and the tribe claim the juvenile court erred in denying their
separate requests to transfer jurisdiction of the child-welfare cases to the tribe.8
The tribe questions the right of the children’s GAL to object to the transfer and,
even if allowed, maintains there was not “good cause” to deny the request of the
father and tribe. The tribe attacks the reasoning of the juvenile court in denying
8 We conclude the father and the tribe are allowed to challenge the denial of their
motions to transfer in this appeal following termination, as the order denying
transfer of jurisdiction to the tribe was not a final appealable order. See E.D., 2016
WL 4379382, at *6 (“The State suggests the mother waived her objection by not
appealing the denial-of-transfer order. We disagree. [That] order did not dispose
of all issues in the case. Accordingly, it was not a final appealable order.”).
13
the requests for transfer. The father makes similar arguments. The federal ICWA
addressed criteria for ruling on transfer applications:
Upon receipt of a transfer petition from an Indian child’s
parent, Indian custodian, or Tribe, the State court must transfer the
child-custody proceeding unless the court determines that transfer is
not appropriate because one or more of the following criteria are met:
(a) Either parent objects to such transfer;
(b) The Tribal court declines the transfer; or
(c) Good cause exists for denying the transfer.
25 C.F.R. § 23.117 (emphasis added). The legislative history of the federal ICWA
states that the use of the term “good cause” was designed to provide state courts
with flexibility in determining the disposition of a placement proceeding involving
an Indian child. Chester Cnty. Dep’t of Social Servs. v. Coleman, 372 S.E.2d 912,
914 (S.C. Ct. App. 1988) (citing H.R. Rep. No. 95-1386, 95th Cong., 2d Sess. 21,
reprinted in 1978 U.S.C.C.A.N. 7530, 7544). The Bureau of Indian Affairs
guidelines published in 2016 further clarify the relevant provisions in ICWA and the
Final Rule by stating that “Congress intended for the transfer requirement and its
exceptions to permit State courts to exercise case-by-case discretion regarding
the ‘good cause’ finding,” similar to “a modified (i.e., limited, narrow) version of the
forum non conveniens analysis.” Indian Child Welfare Act Proceedings, 81 Fed.
Reg. 38778, 38821, 38825 (June 14, 2016) (to be codified at 25 C.F.R. pt. 23).
We look to the process under Iowa law as well.
Under Iowa Code section 232B.5
10. Unless either of an Indian child’s parents objects, in any
child custody proceeding involving an Indian child who is not
domiciled or residing within the jurisdiction of the Indian child’s tribe,
the court shall transfer the proceeding to the jurisdiction of the Indian
child’s tribe, upon the petition of any of the following persons:
a. Either of the child’s parents.
b. The child’s Indian custodian.
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c. The child’s tribe.
....
13. If a petition to transfer proceedings as described in
subsection 10 is filed, the court shall find good cause to deny the
petition only if one or more of the following circumstances are shown
to exist:
a. The tribal court of the child’s tribe declines the transfer of
jurisdiction.
b. The tribal court does not have subject matter jurisdiction
under the laws of the tribe or federal law.
c. Circumstances exist in which the evidence necessary to
decide the case cannot be presented in the tribal court without undue
hardship to the parties or the witnesses, and the tribal court is unable
to mitigate the hardship by making arrangements to receive and
consider the evidence or testimony by use of remote communication,
by hearing the evidence or testimony at a location convenient to the
parties or witnesses, or by use of other means permitted in the tribal
court’s rules of evidence or discovery.
d. An objection to the transfer is entered in accordance with
subsection 10.
Iowa Code § 232B.5(10), (13). While the statute is silent as to the right of a child
at issue to object to the transfer, we ruled more than a decade ago that “[t]he
children are entitled to a voice at every stage of the proceedings,” and, therefore,
the statute as written is unconstitutional because it violates the procedural due
process rights of the children. J.L., 779 N.W.2d at 489. “After our holding in J.L.,
if the children object to the transfer of jurisdiction to the tribe, as was done by the
GAL in this case, the court must determine whether good cause, including the
children’s best interests, exists to deny the petition to transfer.” E.D., 2016 WL
4379382, at *6. Under ICWA, the “best interests of the child” are defined as
the use of practices in accordance with the federal Indian Child
Welfare Act, this chapter, and other applicable law, that are designed
to prevent the Indian child’s voluntary or involuntary out-of-home
placement, and whenever such placement is necessary or ordered,
placing the child, to the greatest extent possible, in a foster home,
adoptive placement, or other type of custodial placement 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,
15
cultural, and social relationship with the Indian child’s tribe and tribal
community.
Iowa Code § 232B.3(2).
The federal ICWA statute provides instruction on “how . . . a determination
of ‘good cause’ to deny transfer” is to be made, but Iowa’s ICWA statute does not
have a corresponding section. See 25 C.F.R. § 23.118(c) (providing five things
the court “must not consider” in determining whether good cause exists to deny
transfer of jurisdiction).9 And our cases involving “Indian children” are governed
by the Iowa statute. Cf. In re N.V., 744 N.W.2d 634, 637 (Iowa 2008) (“Prior to the
enactment of the Iowa ICWA [in 2003], the federal Indian Child Welfare Act (federal
ICWA) governed cases involving Indian children.”). So our court is not limited by
these federal ICWA considerations, as the court must determine whether good
cause, including the children’s best interest, exist to deny the motions to transfer.
The dissent agrees with the tribe and father that impermissible factors were
considered by the juvenile court. But, the juvenile court analysis was not so simple.
In addressing the best interests of the child under Iowa Code section 232B.3(2),
9 Section 25 C.F.R. § 23.118(c) provides:
In determining whether good cause exists, the court must not
consider:
1. Whether the foster-care or termination-of-parental-rights
proceeding is at an advanced stage if the Indian child’s parent, Indian
custodian, or Tribe did not receive notice of the child-custody
proceeding until an advanced stage;
2. Whether there have been prior proceedings involving the
child for which no petition to transfer was filed;
3. Whether transfer could affect the placement of the child;
4. The Indian child’s cultural connections with the Tribe or its
reservation; or
5. Socioeconomic conditions or any negative perception of
Tribal or BIA social services or judicial systems.
16
the juvenile court found that the foster parent placement was best able to assist
the children with the cultural relationship with the tribe. Those foster parents
actively sought education involving the tribe such that the oldest child could count
in her native language. When they sought information from the tribe to aid in the
effort, no response came. The tribe had no relationship with the children during
the pendency of the proceedings and offered no support outside of the efforts of
the Iowa professionals and the Iowa foster family. Thus, the current placement
has been most involved in the factors related to the best interests of the children
in “establishing, developing, and maintaining a political, cultural, and social
relationship with the . . . tribe and tribal community.” Iowa Code § 232B.3(2).
When considering whether there is good cause for the objection to transfer
jurisdiction, the juvenile court did address the late request. Here, in denying the
father’s and the tribe’s motions to transfer jurisdiction, the court articulated how
late in the process the motions came—only after the permanency goal was
changed to termination and more than a year after the tribe intervened in the
proceedings. We recognize that in N.V., our supreme court concluded there was
no “time limit on a parent’s request to transfer a case to tribal court” and affirmed
the juvenile court’s decision to grant the “eleventh hour” request. 744 N.W.2d at636–39. While we understand this ruling to mean the motioning tribe or parent
should not be denied for filing a “late” motion to transfer, we do not believe it
requires the juvenile court to ignore how much time has passed and what impact
that may have on the children when its considering the best interests of the children
who objected and if good cause exists to deny the transfer. After all, our
“paramount interest” remains protection of the children’s best interests. See D.S.,
17
806 N.W.2d at 465. We address a good-cause standard that supports our
conclusion that “nothing in [the Iowa ICWA] places maintaining the Indian culture
above a child’s rights or safety.” J.L., 779 N.W.2d at 492 (holding the “narrow
definition of good cause prohibiting the children from objecting to the motion to
transfer based upon their best interests and introducing evidence of their best
interests” violated the children’s substantive due process rights).
In denying the motions to transfer, the court determined it was not in the
children’s best interests because, during the nineteen months the juvenile court
had jurisdiction, the oldest child had repeatedly suffered trauma because of the
father’s actions. Thus, the court recognized her need for permanency.
Additionally, the older child—who had lived in several homes with several
placements—struggled when new people were introduced into her life, and the
court believed bringing new professionals in at that stage of proceedings was
unnecessarily harmful. At the time of the hearing on the motions to transfer,
nineteen months into juvenile court involvement, the mother was committed under
a mental-health and substance-abuse hold and the father was in prison. The tribe
made clear it does not believe in terminating the rights of parents and would not
do so if the cases were transferred to tribal court. And the mother testified she
supported transfer because “you guys are going towards termination.”
Additionally, the court relied upon the testimony of the tribe’s QEW, who testified
that if the juvenile court terminated the rights of the parents, the children would still
retain their right to be enrolled members of the tribe.
The juvenile court also recognized that the Iowa court was best situated to
litigate the custody and parental rights of the parents. We extend that reasoning
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to recognize that “[g]ood cause to deny transfer of the proceedings to the tribal
court may arise from geographical obstacles.” In re J.R.H., 358 N.W.2d 311, 317
(Iowa 1984). In J.R.H., the Iowa Supreme Court considered the denial of a motion
filed by the Oglala Sioux Tribe in South Dakota to transfer child protection
proceedings initiated in Iowa. Id. at 314, 317. There, the court denied the transfer
on the ground that “[t]he bulk of the evidence and the majority of the witnesses will
come from Iowa.” Id. at 317. With these considerations in mind, the juvenile
court’s finding follows the underlying legislative premise that the federal ICWA
supports flexibility of the states and affords the state court discretion. We support
those goals when the best interests of children are the focus, along with preserving
the Indian heritage.
Because the court conducted the proper analysis and we do not disagree
with its best-interest determination, we cannot say the juvenile court erred in
denying the requests to transfer jurisdiction of the child-welfare cases to tribal
court.
C. Whether the State Made Active Efforts
Both the father and the tribe challenge the court’s ruling the State fulfilled
the “active efforts” mandate. When the State seeks to terminate parental rights
“over an Indian child [it] shall provide evidence to the court that active efforts have
been made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved
unsuccessful.” Iowa Code § 232B.5(19). “The court shall not order the . . .
termination, unless the evidence of active efforts shows there has been a vigorous
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and concerted level of casework beyond the level that typically constitutes
reasonable efforts . . . .” Id.
Active efforts shall include but are not limited to all of the following:
a. A request to the Indian child’s tribe to convene traditional
and customary support and resolution actions or services.
b. Identification and participation of tribally designated
representatives at the earliest point.
c. Consultation with extended family members to identify
family structure and family support services that may be provided by
extended family members.
d. Frequent visitation in the Indian child’s home and the
homes of the child’s extended family members.
e. Exhaustion of all tribally appropriate family preservation
alternatives.
f. Identification and provision of information to the child’s
family concerning community resources that may be able to offer
housing, financial, and transportation assistance and actively
assisting the family in accessing the community resources.
Id.
At trial, the parents asked several questions about what steps DHS took
before removing the older child from the parents’ care in November 2018 and the
younger child in February 2019. And the father raises this issue more fully on
appeal. But insofar as this implicates the part of Iowa Code section 232B.5(19)
that requires proof of active efforts “from a party seeking an involuntary foster care
placement,” this challenge came much too late. Perhaps more importantly, the
parents consented to the removal of the children from their care. We do not have
the transcript from the June 2019 review hearing when the court considered
whether to remove the children from their Native American family member and
place them in foster care, but the parents never challenged that modification of
disposition as improper. See In re D.S., 563 N.W.2d 12, 15 (Iowa Ct. App. 1997)
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(rejecting parents’ argument when they failed to appeal the order that contained
the ruling they now challenged). The father cannot do so now.
Similarly, the father and tribe claim DHS failed to make active efforts to
provide remedial services and rehabilitative programs to prevent the breakup of
the family. Additionally, the father points out that he went more than eleven months
without a visit with his children during his incarceration. Presumably “active efforts”
are owed to an incarcerated parent just as “reasonable efforts” are. See, e.g., In
re L.M., 904 N.W.2d 835, 839–40 (2017); see also In re S.J., 620 N.W.2d 522, 525
(Iowa 2000) (“The services required to be supplied to an incarcerated parent, as
with any other parent, are only those that are reasonable under the
circumstances.”). But, also like “reasonable efforts,” we do not believe a party can
wait until the termination hearing to challenge whether active efforts have been
made. See D.S., 806 N.W.2d at 466 (assuming the issue of active efforts had
been preserved). Objections must be made earlier in the proceedings “so
appropriate changes can be made” if necessary. L.M., 904 N.W.2d at 840. Here,
the father and the tribe participated throughout the proceedings, and the juvenile
court consistently found active efforts were made. These findings were not
challenged, and neither the tribe nor the father ever moved for or requested
different services in writing. Additionally, the evidence at both the hearings on the
motion to transfer and the termination petition established that DHS tried to reach
out to the tribe for more information about cultural practices and events the children
could participate in, and for possible family or tribe member placement options.
The tribe did not respond to the former and was unable to provide more options
for the latter. While the tribe faults DHS for spending some time attempting to
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reach it through an early attorney who had withdrawn from proceedings, the tribe
was a party throughout and was not unaware of what was happening in the
children’s placements and in their cases generally.
We decline to consider further whether active efforts were made.
D. Is Termination Proper under ICWA Standards?
Next, both the father and tribe challenge whether there was evidence to
support a conclusion beyond a reasonable doubt that continued parental custody
of the children would result in serious emotional or physical damage to the
children.10 See Iowa Code § 232B.6(6)(a). This evidence “must include the
testimony of a [QEW] as defined in section 232B.10.” D.S., 806 N.W.2d at 465.
And while the court must consider the testimony of the QEW in reaching its
conclusion, the statute “does not mandate that the [QEW] testify in support of
termination, or in support of the ground that custody by the parent is likely to result
in serious emotional or physical harm to the child.” Id. at 470–71. “Rather, this
section instructs that, after being fully informed by a [QEW], the court is to consider
if the tribe’s culture, customs, or laws would support termination on that ground.”
Id. at 471.
Here, Dr. Rudi Mitchell—the QEW who testified at the termination hearing—
testified both to his personal views as a member of the Omaha Tribe and his
understanding of the tribe’s views; he stated neither he nor the tribe support
10 The tribe maintains the court used the wrong standard in its termination order.
But “the clear-and-convincing-evidence standard [applies] to all matters except the
question of whether [the father’s] continuing custody ‘is likely to result in serious
emotional or physical damage’ to [the child].’” In re C.A.V., 787 N.W.2d 96, 100
(Iowa Ct. App. 2010) (quoting Iowa Code § 232B.6(6)(a)).
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termination of parental rights as a legal practice. However, in regard to the family
at issue, he also testified he knew “for the circumstances right now, it’s not, you
know, feasible” to return the children to their parents. He advocated that a Native
American family member should take custody of the children and then, “[i]f not
blood family members, the tribe exploration should be made to other tribal
members because we are all related.” Dr. Mitchell explained that “in our tribe, no
one is considered a stranger.” But Dr. Mitchell could not speak to the efforts
already made by DHS and the tribe to find a Native family other than the
placements that were unable to maintain the children. Additionally, Dr. Mitchell
spoke about success he had seen with Native American parents who obtain
services through centers specifically meant for Native Americans, such as a
substance-abuse center with Native American counselors that was located in
Nebraska. Dr. Mitchell did not list any like services that he believed would have
been available to the parents in Iowa. When specifically asked if he believed
continued parental custody of the children would result in serious emotional or
physical damage to the children, Dr. Mitchell stopped short of agreeing, but he
testified, “Well, you know, right now, it just doesn’t sound good as far as, you know,
the documentation that I read with the parents not being compliant or the
problems . . . they’re facing with drugs and alcohol.” As for the children, he
testified, “[A]ny child needs to be in a safe environment. They need to be nurtured
and loved and protected.” He agreed the children’s safety was important to the
tribe, testifying, “Like I said, you know, we value children. They’re sacred to us, . . .
as far as nurturing them, making sure they grow up in a safe environment.” He
also agreed that the children’s safety includes “safety from parents’ unresolved
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issues with substance abuse” and “safety from the parents’ unresolved domestic
violence issues.”
Dr. Mitchell’s testimony, when considered in conjunction with the father’s
unresolved issues with domestic violence; his declaration he cannot be kept from
the mother; and his untreated issues involving methamphetamine, marijuana, and
alcohol, prove beyond a reasonable doubt that the father’s continued custody of
the children would result in serious emotional or physical damage to them.
E. Qualified Expert Witness.
In regards to the QEW, the tribe maintains the court erred in relying on only
one QEW and wrongly relied upon the QEW’s testimony “outside the scope of the
of ICWA’s” requirements.
Iowa Code section 232B.6(6)(a) states:
Termination of parental rights over an Indian child shall not be
ordered in the absence of a determination, supported by evidence
beyond a reasonable doubt, including the testimony of qualified
expert witnesses, that the continued custody of the child by the
child’s parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.
(Emphasis added.) Relying on this section, the tribe maintains the court needed
at least two QEWs in order to terminate parental rights.
We recognize the plural form of the word “witness” is used in the statute,
but “[u]nless otherwise specifically provided by law the singular includes the plural,
and the plural includes the singular.” Iowa Code § 4.1(17). And in In re D.B.Q.,
No. 04-1162, 2004 WL 2168636, at *3 (Iowa Ct. App. Sept. 29, 2004), this court
concluded “there is no requirement in the statute that the State present the
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testimony of more than one [QEW].” The court did not err in terminating parental
rights after hearing testimony from only one QEW.11
Finally, the tribe maintains the court wrongly used the QEW testimony
outside the scope ICWA contemplates. Citing to section 232B.10(2), the tribe
argues the QEW’s testimony “should only include two issues: one, the cultural
practices and family relationship of the tribe the children are eligible for or are
enrolled in, and two, discuss whether [termination] would result in serious
emotional or physical damage to the child.” Section 232B.10(2)
require[s] 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 placement of the child in foster
care or the termination of parental rights on the grounds that
continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child.
(Emphasis added.) But the statute does not limit the testimony of the QEW to
those matters. And this court has recognized QEW testimony on other topics. In
D.S., we recognized that, based on the QEW’s testimony, “the juvenile court could
conclude the parents had not overcome their issues, their substance abuse issues
were going to require long-term rehabilitation, active efforts had been provided to-
date, and the [QEW] was not likely to ever support termination due to the tribe’s
laws and customs.” 806 N.W.2d at 472. The juvenile court was not wrong to
consider the QEW’s testimony in its entirety.
11 In its termination order, the juvenile court noted that it also received an affidavit
from Mosiah Harlan in the child-in-need-of-assistance proceedings; Harlan is a
QEW for the tribe.
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IV. Conclusion.
Based on recent case law, we accept the father’s delayed appeal. After
considering the merits, we affirm the juvenile court’s decision to deny transfer of
jurisdiction to the tribe and the termination of the father’s parental rights.
AFFIRMED ON BOTH APPEALS.
Schumacher, J., concurs; Vaitheswaran, P.J., dissents.
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VAITHESWARAN, Presiding Judge (dissenting).
I respectfully dissent. The purpose of the Iowa ICWA “is to clarify state
policies and procedures regarding implementation of the federal Indian Child
Welfare Act.” Iowa Code § 232B.2. “Best interest of the child” is defined by statute
as:
[T]he use of practices in accordance with the federal Indian Child
Welfare Act, this chapter, and other applicable law, that are designed
to prevent the Indian child’s voluntary or involuntary out-of-home
placement, and whenever such placement is necessary or ordered,
placing the child, to the greatest extent possible, in a foster home,
adoptive placement, or other type of custodial placement 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 Indian child’s tribe and tribal
community.
Id. § 232B.3(2). The statute requires us to consider federal law in analyzing
whether transfer to tribal court is in the best interests of a child.
The federal regulation cited in footnote nine of the majority opinion is titled
“How is a determination of ‘good cause’ to deny transfer made?” See 25 C.F.R.
§ 23.118(c). The regulation precludes consideration of “whether the . . .
termination-of-parental-rights proceeding is at an advanced stage; “whether
transfer could affect the placement of the child”; “[t]he Indian child’s cultural
connections with the Tribe or its reservation”; and “any negative perception of
Tribal or [Bureau of Indian Affairs] social services.” Id.The district court considered these factors. The court referenced the
“advanced stage” of the proceedings and cited the foster parents’ efforts to
acculturate the children to their heritage, which implicated their current placement
and their cultural connections; and discussed the “excellent supportive services”
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provided by the department of human services and service providers, suggesting
by negative implication that the services the tribe would provide were not at that
level. I would conclude the court’s denial of the tribe’s transfer motion on these
grounds ran afoul of Iowa’s Indian Child Welfare Act.
In re E.D., No. 16-0829, 2016 WL 4379382 (Iowa Ct. App. Aug. 17, 2016),
does not alter my conclusion. There, the juvenile court transferred an initial child-
in-need-of-assistance action to the Omaha tribe. E.D., 2016 WL 4379382, at *1.
Following transfer, the tribe removed the children “based on a child protective
assessment showing the mother and father both used methamphetamine while
caring for the children.” Id. The tribe returned the children to the mother after she
completed treatment. Id. The tribal case was dismissed. Later, the State filed a
new child-in-need-of-assistance petition. Id. at *2. This time, the juvenile court
denied the tribe’s transfer motion. The court of appeals affirmed the ruling, citing
“the particular struggles of this family and the new CINA adjudication after the
tribe’s earlier dismissal of the child welfare case.” Id. at *6.
Here, the Omaha tribe was not afforded an opportunity to assume
jurisdiction over the case at any stage, notwithstanding its early intervention in the
state-court proceedings. Specifically, the tribe was notified of the child-in-need-of-
assistance proceeding on January 2, 2019 and moved to intervene less than two
weeks later, well before the child’s removal and two years before a termination
order was filed. The tribe’s ICWA Supervisor and qualified expert witness filed an
affidavit attesting to his qualifications and the tribe’s cultural beliefs with respect to
termination of parental rights and testified at the termination hearing. Although he
stated the tribe did not believe in termination of parental rights, he also stated the
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tribe would review the current placement of the children and “may possibly leave
them with their current placement . . . if they’re willing to work with us.” He also
testified the tribe “would continue with services as much as we can.” He affirmed
that the safety, health, and welfare of the children was the tribe’s paramount
consideration.
Because the reasons for denial of transfer contravene the cited federal
regulation and Iowa’s statutory best-interest definition and because the tribe
intervened and provided expert testimony on the tribe’s intent to ensure the
children’s safety, I would reverse the district court’s denial of the tribe’s motion to
transfer jurisdiction.