In The Interest Of N.v. And P.v., Minor Children, State Of Iowa

IN THE SUPREME COURT OF IOWA
No. 18 / 07-0583
Filed February 15, 2008
IN THE INTEREST OF N.V. and P.V.,
Minor Children,
STATE OF IOWA,
Appellant.
________________________________________________________________________
Appeal from the Iowa District Court for Polk County, Constance
Cohen, Juvenile Judge.
The State appeals the decision by the district court to transfer this
case to a tribal court. AFFIRMED.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant
Attorney General, and Andrea Vitzhum, Assistant County Attorney, for
appellant.
Jeffrey S. Rasmussen of Olson Allen & Rasmussen, L.L.P.,
Bloomington, Minnesota, and Patrick Wilson, Marshalltown, for appellee
Sac and Fox Tribe of the Mississippi in Iowa.
Victoria Meade, West Des Moines, for appellee-mother.
David Pargulski, Des Moines, for appellee-father.
Christine Bisignano, West Des Moines, for minor children.
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WIGGINS, Justice.
We must decide whether the district court properly transferred this
case to the tribal court. Because the State failed to provide a legal basis
for the district court to deny the transfer of this case to the tribal court,
we affirm the district court’s order.
I. Background Facts and Proceedings.
The State filed a child in need of assistance (CINA) petition
regarding N.V. and P.V. in September 2005. The father of the children
was an enrolled member of a tribe other than the Sac and Fox Tribe;
however, his mother was a member of the Sac and Fox Tribe, making the
father a descendant. According to the Sac and Fox Tribe, N.V. and P.V.
were not entitled to enrollment. Even though the children were not
entitled to enrollment, under the Iowa Indian Child Welfare Act (Iowa
ICWA) the Sac and Fox Tribe was entitled to notification of the
proceedings because the Iowa ICWA defines an Indian child as one whom
“the Indian tribe identifies as a child of the tribe’s community.” Iowa
Code § 232B.3(6) (2005).1
On November 28 the district court held a CINA hearing. At the
hearing the director of Meskwaki Family Services, who oversees the Iowa
ICWA transfers for the Sac and Fox Tribe, acknowledged the tribe
received notice of the CINA proceedings. The director testified N.V. and
P.V. are not eligible for membership or enrollment in the tribe, but are
considered descendants. Therefore, N.V. and P.V. are children of the
tribal community and hence Indian children under the Iowa ICWA. The
director explained the tribe did not wish to seek jurisdiction over the case
1In November 2007 we held section 232B.3(6) to be unconstitutional as applied
to children who were not members of a tribe or eligible for membership in a tribe. In re
A.W., 741 N.W.2d 793, 813 (Iowa 2007).
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because it only sought jurisdiction over cases involving children who
were enrolled or eligible for enrollment in the tribe.
The CINA proceedings continued under Iowa Code section
232.2(6)(n) (parental drug use) and section 232.2(6)(c)(2) (parental failure
to supervise). The parents did not contest the adjudication of their
children as children in need of assistance or the placement of their
children outside the home with a relative who was licensed as a foster
parent. At the time of the CINA proceedings, both parents were
incarcerated.
The mother was released from custody in August 2006. The court
held the termination hearing on March 1, 2007. The mother was present
at the hearing in person and the father appeared by telephone because
he was still incarcerated. At the hearing the mother requested the court
to transfer jurisdiction of the proceedings to the tribal court. The father
joined the request. The State objected to the transfer. After granting
additional time to submit briefs on the issue, the district court granted
the request to transfer jurisdiction to the tribal court.
II. Issues.
The State raises three issues on appeal: (1) whether the district
court could deny an “eleventh-hour” request to transfer the custody
proceedings to a tribal court; (2) whether the parties or witnesses would
suffer undue hardship by such a transfer; and (3) whether the doctrines
of estoppel, forfeiture, or laches prevent the parents from requesting a
transfer to the tribal court.
III. Scope of Review.
Normally, our review of proceedings to terminate parental rights is
de novo. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). However, we
review issues of statutory interpretation for correction of errors at law.
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State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). Because the court did
not hold a termination hearing, and because the court based its decision
to transfer the case on its interpretation of Iowa Code section 232B.5(10),
our review is for correction of errors at law.
IV. Analysis.
A. Whether the District Court Could Deny an “Eleventh-Hour”
Request to Transfer Custody Proceedings to a Tribal Court. Sections
232B.5(10) and 232B.5(13) deal with a request to transfer a case from a
district court to a tribal court. Section 232B.5(10) allows either of a
child’s parents to request such a transfer. Iowa Code § 232B.5(10). This
section provides:
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.
c. The child’s tribe.
Id.
Section 232B.5(13) puts limits on the court’s ability to transfer a
case to the tribal court. Section 232B.5(13) provides what circumstances
constitute “good cause” for a court to deny a request to transfer a case to
a tribal court. Id. § 232B.5(13). The section reads as follows:
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.
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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.
Id.
The State requests us to construe the transfer statutes to provide
the court with discretion to deny the parents’ demand to transfer
jurisdiction to the tribal court because they did not present good cause
to excuse their untimely transfer request. We only resort to the rules of
statutory construction when a statute is ambiguous. State v. Wiederien,
709 N.W.2d 538, 541 (Iowa 2006). When the statute’s language is plain
and its meaning is clear, we look no further. State v. Snyder, 634
N.W.2d 613, 615 (Iowa 2001). “If reasonable persons can disagree on a
statute’s meaning, it is ambiguous.” Weiderien, 709 N.W.2d at 541. In
this case, the language is plain, clear, and susceptible to only one
interpretation.
Section 232B.5(10) mandates that a court shall transfer the
proceeding to a tribal court upon a petition from the persons listed in the
statute. Iowa Code § 232B.5(10). While the statute does not directly
speak to the timing of when the transfer can or should be made, the
statute does include the language “upon the petition,” indicating the
transfer should be made directly after an appropriate party requests the
transfer. This language makes it clear that section 232B.5(10) does not
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contain any limitation on the time in which a request to transfer must be
filed.
Further evidence that the transfer sections of the Iowa ICWA do
not contain a time limitation for requesting a transfer can be found in
section 232B.5(13). This section lists the circumstances that constitute
good cause to allow a court to deny a request to transfer a case. The
section specifically states “the court shall find good cause to deny the
petition only if one or more of the” circumstances contained in the
statute are shown to exist. Id. (emphasis added). By use of the word
“only,” the legislature made it clear that only those causes listed in
section 232B.5(13) constitute good cause to deny the request for a
transfer to a tribal court. None of the circumstances enumerated in
section 232B.5(13) even hint at the requirement that a last-minute
request to transfer a case to a tribal court is untimely, or that it
constitutes good cause for the court to deny the request. Consequently,
we hold the plain language of the transfer sections of the Iowa ICWA do
not allow the court to deny a request to transfer a case to the tribal court
based on the timing of the request.
Moreover, our construction of the transfer statutes is not only
consistent with the plain language of the statutes, it is also consistent
with the legislative history of the Iowa ICWA. Prior to the enactment of
the Iowa ICWA, the federal Indian Child Welfare Act (federal ICWA)
governed cases involving Indian children. The federal ICWA required the
court, “in absence of good cause to the contrary,” to transfer a case from
a state court to a tribal court in cases involving the placement of an
Indian child or the termination of parental rights involving an Indian
child. 25 U.S.C. § 1911(b). The federal ICWA did not include a definition
of good cause or enumerate the circumstances constituting good cause.
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Id. However, the Bureau of Indian Affairs issued nonbinding guidelines
listing circumstances when good cause may exist to deny the transfer of
a case to a tribal court. Guidelines for State Courts; Indian Child
Custody Proceedings, 44 Fed. Reg. 67,591 (Nov. 26, 1979). These
guidelines provide good cause may exist to deny a transfer if “[t]he
proceeding was at an advanced stage when the petition to transfer was
received and the petitioner did not file the petition promptly after
receiving notice of the hearing.” Id. These guidelines also state good
cause may exist to deny a transfer if “[t]he evidence necessary to decide
the case could not be adequately presented in the tribal court without
undue hardship to the parties or the witnesses.” Id.
Prior to the enactment of the Iowa ICWA in 2003, our appellate
courts adjudicated cases involving Indian children by applying the
federal ICWA and the Bureau of Indian Affairs’ guidelines. On at least
two occasions, our court of appeals denied a tribe’s transfer request for
good cause when the proceedings were at an advanced stage, and the
tribe did not promptly file the request to transfer. See In re J.W., 528
N.W.2d 657, 660–61 (Iowa Ct. App. 1995); see also In re K.T., No. 02-
0952, 2002 WL 1758435, at *3 (Iowa Ct. App. 2002). On another
occasion this court denied a request to transfer a case to a tribal court
because the “ ‘evidence necessary to decide the case could not be
adequately presented in the tribal court without undue hardship [to] the
parties or the witnesses.’ ” In re J.R.H., 358 N.W.2d 311, 317 (Iowa 1984)
(citing 44 Fed. Reg. at 67,591).
When the legislature adopted section 232B.5(13)(c), it made a
choice to adopt the undue hardship provision of the Bureau of Indian
Affairs’ guidelines, but not the provision dealing with the timeliness of a
transfer request. This choice by the legislature confirms it did not intend
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to place a time limit on a parent’s request to transfer a case to a tribal
court.
Finally, the State argues the district court should have denied the
transfer request because it was not in the best interest of the children.
This argument fails for two reasons. First, the transfer statutes do not
allow a best-interest-of-the-child exception to deny a transfer request
made in accordance with the Iowa ICWA. Second, the Iowa ICWA does
not use the traditional definition of “the best interest of the child” as
used in custody cases involving non-Indian children. Iowa Code
§ 232B.3(2). The Iowa ICWA defines best interest of the child 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.
Under this definition, it is in a child’s best interest to place him or
her in a home that will preserve the unique values of the child’s tribal
culture and assist the child in establishing relationships with the tribe
and tribal community. Id. Even if we were to find the traditional
definition of the best interest of the children would override the
circumstances enumerated in the transfer statutes, under the Iowa ICWA
definition we find it is in the best interest of N.V. and P.V. to transfer
their case to the tribal court so it can preserve the unique values of their
tribal culture and assist the children in establishing relationships with
their tribal community.
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Therefore, the district court was correct when it transferred this
case to the tribal court even though the parents’ request came at the
beginning of the termination hearing.
B. Whether the Parties or Witnesses Would Suffer Undue
Hardship by a Transfer to the Tribal Court. Iowa Code section
232B.5(13)(c) contains a hardship provision that allows a court to find
good cause to deny a transfer. It provides:
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.
Iowa Code § 232B.5(13)(c). The burden of proving good cause is on the
party opposing the transfer, which in this case is the State. See In re
J.W., 528 N.W.2d at 660.
The district court found neither the parties nor the witnesses
would suffer undue hardship if the case were transferred to the tribal
court. In its ruling, the district court stated:
The evidence does not support a finding that . . .
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 witnesses. Prior
court files, transcripts, and exhibits can be made available to
the tribal court and the children, now twelve and fourteen,
are bright young people who can make their positions and
concerns known to their representatives in any forum.
We have no reason to disagree with this finding. Accordingly, the district
court was correct when it refused to deny the transfer of this case to the
tribal court under section 232B.5(13)(c).
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C. Whether the Doctrines of Estoppel, Forfeiture, or Laches
Prevent the Parents From Requesting a Transfer to the Tribal Court.
On appeal the State raises the doctrines of forfeiture and laches for the
first time. Ordinarily, issues not presented to the trial court are not
reviewable when raised for the first time on appeal. State v. Farni, 325
N.W.2d 107, 109 (Iowa 1982). Therefore, we will not address the State’s
arguments concerning the doctrines of forfeiture and laches.
In its ruling, the district court found the State’s argument on
estoppel compelling, but never ruled on the merits of the doctrine.
Instead the court found the unambiguous requirements of the transfer
statutes required the court to transfer this case to the tribal court. We
agree with the district court.
The doctrine of estoppel cannot be used to trump the clear
statutory right under the Iowa ICWA that allows a party to transfer a
case to a tribal court without a time limit. To hold otherwise would not
only insert a time limit for a person to request a transfer that is not
contained in the transfer statutes, but would also be inconsistent with
the purpose of the act.
The tribe’s interest in the future of an Indian child is not only
significant, it is also an interest the legislature sought to vigorously
protect. The legislature provided that if an objection is made to the
transfer, the court “shall reject any objection that is inconsistent with the
purposes of [the Iowa ICWA].” Iowa Code § 232B.5(11). The purpose of
the Iowa ICWA is to ensure Indian children can be placed in homes that
reflect the unique values of the child’s tribal culture and assist the child
in establishing relationships with the child’s tribe and tribal community.
Id. § 232B.2. The transfer statute specifically provides:
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[T]he court shall reject any objection that is inconsistent
with the purposes of this chapter, including but not limited
to any objection that would prevent maintaining the vital
relationship between Indian tribes and the tribes’ children
and would 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.
Id. § 232B.5(11). Accordingly, we conclude when the statutory right
under the Iowa ICWA exists for a person to transfer a case to a tribal
court without a time limit, estoppel cannot be used to deprive a person of
that right.
V. Disposition.
Because the State failed to provide a legal basis for the district
court to deny the transfer of this case to the tribal court, we affirm the
district court’s transfer order.
AFFIRMED.
All justices concur, except Larson, J., who takes no part.