as: 572 N.W.2d 579)
Court of Iowa.
the Interest of A.E., J.E., S.E., and X.E., Minor Children.
Arapahoe Tribe, Appellant,
review in child in need of assistance proceedings is de
of his alleged misconduct, including drug use and physical abuse,
natural father had veto power under ICWA to prevent transfer,
to tribal court in another state, of children in need
of assistance proceedings involving temporary placement of Indian children who
did not reside on reservation, and his refusal to consent
to transfer foreclosed possibility of such transfer. Indian Child Welfare
Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
sibling's mother, who was not married to Indian children's father,
was not "stepparent" within meaning of ICWA, and therefore was
not preferred placement for foster care, in children in need
of assistance proceedings, as member of children's extended family. Indian
Child Welfare Act of 1978, §§ 4(2),
105(b), 25 U.S.C.A. §§ 1903(2),
cause for deviating from ICWA preferred placement for foster care
depends on fact determinative analysis consisting of many factors including,
but not necessarily limited to, best interests of child, wishes
of biological parents, suitability of persons for placement, and child's
ties to tribe. Indian Child Welfare Act of 1978, § 105(b),
25 U.S.C.A. § 1915(b).
cause existed to deviate from ICWA's preferred placement for foster
care, in children in need of assistance proceedings, by placing
Indian children with their half sibling's mother on temporary basis,
where three social workers testified it was in children's best
interest to remain temporarily with half sibling's mother, evidence suggested
that children no longer had any meaningful ties to tribe,
juvenile court would need additional information to determine permanent placement
of children, and natural mother was attempting to use tribe
to circumvent court ordered supervised visitation of her children. Indian
Child Welfare Act of 1978, § 105(b),
25 U.S.C.A. § 1915(b).
Todd E. Babich of Babich, McConnell & Renzo, Des Moines,
Frank Steinbach III of Cook, Gotsdiner, McEnroe & McCarthy, Des
Moines, for appellant-mother.
Thomas J. Miller, Attorney General, and Chris Odell, Assistant Attorney
General, for appellee-State.
Mike Bandstra, Des Moines, guardian ad litem for minor children.
Considered by McGIVERIN, C.J., and LARSON, CARTER, LAVORATO, and ANDREASEN,
In this juvenile proceeding regarding temporary placement of four Indian
children, we must decide two questions involving the Indian Child
Welfare Act (ICWA). First, did the juvenile court correctly deny
a motion to transfer jurisdiction of the proceedings to a
tribal children's court in Wyoming? Second, did the juvenile court
have good cause to deviate from placement preferences under the
ICWA when the court placed temporary custody with the father's
Finding that the district court acted correctly in both instances,
we affirm the temporary custody placement.
Facts and Proceedings.
Four children are the subject of these proceedings. For the
purposes of this opinion we refer to them as Anne,
Sam, Jamie, and Xander. Anne is twelve; Sam is ten;
Jamie is eight; and Xander is six. All four children
are enrolled members of the Northern Arapahoe Tribe (Tribe), each
possessing 1/4 degree of Indian blood. All four lived with
their mother at the Wind River Reservation at Fort Washakie,
Wyoming from 1990-1994. Otherwise, they have had no contact with
the Tribe, the reservation, or any member of the Tribe
or their extended family.
We refer to the children's mother as Reba. By her
own admission, Reba has an addiction to cocaine and marijuana.
Reba admits she cannot care for her children. Reba is
a member of the Tribe, and she possesses 1/2 degree
of Indian blood. She has several uncles, aunts, and cousins
still living at the reservation.
The children's father, whom we refer to as Andrew, is
not Indian. Like his wife, Andrew has a drug addiction
and has committed acts of physical abuse against his present
girlfriend, Sharon, and his son, Xander.
Ida and Leo Monroe are Reba's aunt and uncle, who
live on the Wind River Reservation. According to Reba, Ida
and Leo have agreed to take custody of all four
children. No one else could confirm this, including the Tribe.
The Monroes have not contacted the social worker in this
case, Tracey Parker. Nothing is known about the Monroes.
Sharon is the mother of one of Andrew's children (not
one of the children who are the subject of these
proceedings). Sharon has seven children, including the four in interest
here, living with her in a two-bedroom home. According to
one family counselor's testimony, she cares well for the children.
Under Sharon's care, the four children in interest are happy,
call her "mother," have bonded with her, and are doing
well academically. Sharon, however, does need help. She becomes frustrated
and requires assistance with the children.
The case started in January 1995, when all of the
children in interest, except Sam,
tested positive for cocaine. Their mother, Reba, tested positive for
cocaine and marijuana. The State brought a child in need
of assistance action on all four children, and, following a
hearing, district judge Donna L. Paulsen adjudicated the children "in
need of assistance" on March 13. See
Code § 232.2(6)(c)(2),
(6)(n), and 6(o) (1995). The parties stipulated at this hearing
that the court should allow the Tribe to intervene in
the proceedings. This stipulation was later confirmed in a nunc
pro tunc order entered May 1, 1995.
The March 13 order continued the custody of the children
in the father, directed the father to complete a substance
abuse evaluation and to follow through with recommendations. The order
also directed the father to show he was no longer
ingesting controlled substances by providing urine samples for analysis (commonly-called
UAs) at the request of the Iowa Department of Human
Services. Finally, the order allowed the mother supervised visitation at
the discretion of the Department only after providing two clean
On May 1, juvenile court judge Karla J. Fultz confirmed
the March 13 order and placed temporary legal custody of
the four *581
with their father, Andrew. Andrew's custody of the children was
short-lived. He failed to provide weekly urine samples for drug-testing,
would not cooperate with an in-home social worker, tested positive
for marijuana use, and would not participate in several court-ordered
drug treatment programs. In addition, Andrew physically abused Xander
and Sharon. He was compelled to leave the home under
a domestic abuse no-contact order.
On March 21, 1997, two years and several hearings later,
the juvenile court in a temporary, emergency order placed the
children in Sharon's custody "pending further hearing and orders which
are anticipated in the near future."
On April 8 the Tribe filed a motion to transfer
the proceedings to the Shoshone and Arapahoe Tribal Children's Court
of the Wind River Indian Reservation, Fort Washakie, Wyoming pursuant
to the ICWA. In the alternative, the Tribe asked the
court to place the children with a member of the
children's extended family or a foster home licensed, approved, or
specified by the Tribe pursuant to the ICWA. Reba joined
in the Tribe's motion, but Andrew filed a response in
which he stated that he "was not in agreement with"
the Tribe's motion. In addition, Andrew expressly stated in his
response that he did not give his consent to the
requested transfer of jurisdiction. The children's guardian ad litem also
resisted the Tribe's motion.
The juvenile court then held a hearing at which Reba
and three social workers testified. Following the hearing, the court
entered an order denying the Tribe's motion and continuing temporary
legal custody with Sharon.
It is from this order that the Tribe and Reba
appeal. Reba joins in the Tribe's brief.
The State joins the brief of the guardian ad litem.
The State filed a supplemental
brief on the transfer of jurisdiction issue.
The Tribe raises two issues. First, it contends the juvenile
court should have transferred jurisdiction of the proceedings as it
requested. Second, the Tribe contends the court should not have
placed custody with Sharon. Rather, the Tribe further contends, the
court should have placed such custody with the children's extended
family or a foster home licensed and approved by the
review in child in need of assistance proceedings is de novo. In
re J.R.H., 358 N.W.2d
311, 317 (Iowa 1984). Where, as here, the children are members
of a U.S. Indian tribe, the provisions of Iowa Code chapter 232 governing
children in need of assistance are modified by the ICWA. In
re J.W., 528 N.W.2d
657, 659 (Iowa App.1995).
Congress enacted the ICWA in 1978 because of a
concern in the mid-1970s 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.
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 32, 109 S.Ct. 1597, 1599-600, 104 L.Ed.2d
29, 36 (1989). In § 1901
of the ICWA, Congress
made the following findings:
that clause 3, section 8, article I of the United
States Constitution provides that "The Congress shall have Power ...
To regulate Commerce ... with Indian tribes" and, through this
and other constitutional authority, Congress has plenary power over Indian
that Congress, through statutes, treaties, and the general course of
dealing with Indian tribes, has assumed the responsibility for the
protection and preservation of Indian tribes and their resources;
that there is no resource that is more vital to
the continued existence and integrity of Indian tribes, than their
children and that the United States has a direct interest,
as trustee, in protecting Indian children who are members of
or are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families are
broken up by the removal, often unwarranted, of their children
from them by nontribal public and private agencies and that
an alarmingly high percentage of such children are placed in
non-Indian foster and adoptive homes and institutions; and
that the States, exercising their recognized jurisdiction over Indian child
custody proceedings through administrative and judicial bodies, have often failed
to recognize the essential tribal relations of Indian people and
the cultural and social standards prevailing in Indian communities and
25 U.S.C. § 1901.
In § 1902
of the ICWA, Congress declared
it is the policy of this Nation to protect the
best interest 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 and adoptive homes which will reflect the unique values
of Indian culture, and by providing for assistance to Indian
tribes in the operation of child and family service programs.
of Jurisdiction to the Tribe.
§ 1903(4) of the ICWA, an "Indian child" is defined
as "any unmarried person who is under age eighteen and is either
(a) a member of an Indian tribe or (b) is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe."
§ 1903(4). It is uncontroverted that the four children
meet this definition.
The ICWA defines a child custody proceeding to mean
action removing an Indian child from its parent or Indian
custodian for temporary placement in a foster home or institution
or the home of a guardian or conservator where the
parent or Indian custodian cannot have the child returned
upon demand, but where parental rights have not been terminated.
The parties concede placement of the children with Sharon is
a "temporary placement in a foster home" and otherwise meets
the definition of "child custody proceeding" in this section.
The ICWA grants the Indian child's tribe the right to
intervene at any point of a State court proceeding for
the foster care placement of an Indian child. Id.
The Tribe has intervened in these proceedings.
The ICWA provides that
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian child's
tribe, the court, in the absence of good cause to
the contrary, shall transfer such proceeding to the jurisdiction of
the tribe, absent
objection by either parent, upon
the petition of either parent or the Indian custodian or
the Indian child's tribe....
(emphasis added). It was under this provision that the Tribe
moved to transfer jurisdiction of these proceedings to its tribal
court in Wyoming. The parties considered the juvenile court's order
placing temporary custody in Sharon as a foster care placement.
The order therefore triggered the provisions of section 1911(b).
The language "absent objection by either parent" gives either parent
veto power over the transfer. Here Andrew, the father, expressly
refused to consent
to the transfer. Contrary to the Tribe's contention, no authority
exists supporting its claim that a parent loses his or
her right to object through misconduct. Regardless of Andrew's conduct,
he still retained veto power. Because Andrew objected, the juvenile
court correctly refused to transfer jurisdiction.
Foster Care Placement.
Placing custody with Sharon presents a more difficult problem. Section
1915(b) of the ICWA provides the following preferences for foster
child accepted for foster care ... shall be placed in
the least restrictive setting which most approximates a family and
in which his special needs, if any, may be *583
met. The child shall also be placed within reasonable proximity
to his or her home, taking into account any special
needs of the child. In any foster care ... placement,
a preference shall be given, in the absence of good
cause to the contrary, to a placement with--
a member of the Indian child's extended family;
a foster home licensed, approved, or specified by the Indian
an Indian foster home licensed or approved by an authorized
non-Indian licensing authority; or
an institution for children approved by an Indian tribe or
by an Indian organization which has a program suitable to
meet the Indian child's needs.
Relative to these placement preferences, the juvenile court made the
placement of the children with Sharon Wright, mother of their
half sibling, and father's significant other, who has been in
the role of stepmother is in the children's best interest
to qualify as placement with the children's extended family as
set out in the guidelines for placement under the Indian
Child Welfare Act.
(Emphasis added.) Thus, it is apparent that the court relied
in part on the extended family preference of 1915(b) in
placing custody of the four children with Sharon. See
The ICWA defines "extended
family member" to include, among others, a stepparent. Id.
§ 1903(2). The ICWA does not define "stepparent."
We therefore turn to the common meaning of the word, which
is "the husband or wife of one's mother or father by a subsequent
marriage." Webster's Third New International Dictionary
2237 (1993). Contrary to the court's finding, Sharon is not
a stepparent within the meaning of § 1903(2). She
is therefore not "a member of the Indian child's extended family"
because she is not married to Andrew, the children's biological father.
As the court found, Sharon is Andrew's
significant other. Sharon is therefore not a preferred placement
for the purposes of the ICWA.
This, however, does not end our inquiry. By its own
terms, § 1915(b)
allows a State court to deviate from the list of
preferred placements in § 1915(b)
if "good cause" exists for such deviation. Id.
The ICWA neither defines "good cause" nor describes the factors
a state court may consider in determining whether it exists.
At least two appellate courts that have interpreted the "good
cause" exception of § 1915(b)
allow trial courts the discretion to consider the best interests
of the child as one of the factors in determining
whether the exception applies. See
In re Adoption of F.H.,
851 P.2d 1361, 1363-64 (Alaska 1993); In
re Adoption of M.,
66 Wash.App. 475, 832 P.2d 518, 522 (1992). In In
the Alaska Supreme Court held:
there is good cause to deviate [from the § 1915(b)
preferences] depends on many factors including, but not necessarily limited
to, the best interests of the child, the wishes of
the biological parents, the suitability of persons for placement and
the child's ties to the tribe.
851 P.2d at 1363-64.
In the same vein, the Washington Court of Appeals held:
cause is a matter of discretion, and discretion must be
exercised in light of many factors. These include but are
not necessarily limited to the best
interests of the child, the wishes of the biological parents,
the suitability of persons preferred for placement, the child's ties
to the tribe, and the child's ability to make any
cultural adjustments necessitated by a particular placement.
832 P.2d at 522 (citations omitted).
Two other courts take the position that the best interests
of the child standard is not appropriate for determining the
good cause exception in § 1915(b).
In re Custody of S.E.G., 521
N.W.2d 357, 361-62 (Minn.1994); In
re Adoption of Riffle,
277 Mont. 388, 922 P.2d 510, 514 (1996). In In
re S.E.G., the
Minnesota Supreme Court determined that simply applying a best interests
standard was contrary to the plain language of the *584
ICWA read as a whole and its legislative history. Such
language and history
indicate the state courts are a part of the problem
the ICWA was intended to remedy.... The best interests of
the child standard, by its very nature, requires a subjective
evaluation of a multitude of factors, many, if not all
of which are imbued with the values of majority culture.
It therefore seems "most improbable" that Congress intended to allow
state courts to find good cause whenever they determined that
a placement outside the preferences of § 1915
was in the Indian child's best interests.
521 N.W.2d at 362-63 (citations omitted).
The court went on:
the BIA [Bureau of Indian Affairs] guidelines are not binding
on the courts, the use of the word "shall" in
strongly suggests that a consideration of whether good cause exists
should be limited to the factors described in the guidelines.
[Guidelines for State Courts; Indian Child Custody Proceedings], 44 Fed.Reg.
67,584, 67,594 (1979). We hold, therefore, that a determination that
good cause exists to avoid the placement preferences of § 1915
should be based upon a finding of one or more
of the factors described in the guidelines.
Section F.3 of the BIA guidelines referred to in In
describes circumstances which provide "good cause" to modify the placement
preferences of § 1915(b):
Good Cause To Modify Preferences
For purposes of foster care, preadoptive or adoptive placement, a
determination of good cause not to follow the order of
preference set out [in § 1915(b)
] shall be based on one or more of the
The request of the biological parents or the child when
the child is of sufficient age.
The extraordinary physical or emotional needs of the child as
established by testimony of a qualified expert witness.
The unavailability of suitable families for placement after a diligent
search has been completed for families meeting the preference criteria.
The burden of establishing the existence of good cause not
to follow the order of preferences established in subsection (b)
[of § 1915]
shall be on the party urging that the preferences not
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg.
As one can readily see, these guidelines do not include
a best interests of the child standard and for that
reason are quite restrictive on the question of good cause.
According to In
re S.E.G., eliminating
the best interests standard on the question of good cause
ensures "that Indian child welfare determinations are not based on
a white, middle class standard which in many cases, forecloses
placement with an Indian family." In
521 N.W.2d at 359 (quoting Choctaw
490 U.S. at 37, 109 S.Ct. at 1602, 104 L.Ed.2d
Following the lead of In
re S.E.G., the
Montana Supreme Court similarly held that the best interests standard
is an "unnecessary and inappropriate analysis under the ICWA" on
the question of good cause to deviate from the § 1915(b)
922 P.2d at 515. The court made no definitive statement
about what constitutes good cause. The court, however, inferentially followed
the BIA guidelines in concluding there was no good cause
overcoming the § 1915(b)
preferences in upholding placement with the Indian child's uncle, a
member of the child's tribe. This is apparent from the
following passage in the opinion:
the present case, the record clearly supports the conclusion that
there was no "good cause" for overcoming the placement preferences
of the ICWA: the Department had approved [the uncle] as
providing an approved adoptive home; [the uncle] is bonded with
[the child]; he had significant contact with her during the
first 18 months of her life; he is [the child's]
uncle and, as such, is part of her extended family;
[the child's] natural mother supported [the uncle] *585
as the adoptive parent for [the child], and; the Department
supports [the uncle] as the adoptive parent for [the child].
We favor the position of the Washington
and Alaska courts as the sounder approach. We think the "good
cause" for deviating from the § 1915(b) preferences depends
on a fact determinative analysis consisting of "many factors including,
but not necessarily limited to, the best interests of the child, the wishes
of the biological parents, the suitability of persons for placement, and
the child's ties to the tribe." In
re F.H., 851 P.2d at
1363-64. In short, the best interests of the child is but
one factor, among many, that the court may consider.
The BIA guidelines contain language that suggests state courts have
include the best interests standard as a factor on the
question of good cause. On this point the BIA guidelines
responsibility for interpreting other language used in the Act, however,
rests with the courts that decide Indian child custody cases.
example, the legislative history 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.
Guidelines, 44 Fed.Reg. at 67,584 (emphasis added).
In our de novo review of the evidence,
we find that good cause exists to deviate from the § 1915(b)
preferences by placing the custody of the children with Sharon on a temporary
basis. What follows is testimony supporting our conclusion.
As mentioned, three social workers testified. None of their testimony
was refuted. One of those testifying, Patricia Kline, is a
licensed social worker with a bachelor's and master's degree in
that field. She was a clinical social worker at the
Pine Ridge Indian Health Clinic in South Dakota for two
years and, since then, has worked at the Mental Health
Clinic of Tama County. She has worked extensively with Indians
in individual, family, and marital counseling. She has testified on
behalf of Indian children in placement cases. After testifying that
it would be in the children's best interest to be
placed temporarily with Sharon, Kline testified further:
would recommend temporarily it is better for them to live
in a familiar setting where they feel cared for and
apparently are well cared for. I would think to make
a change at this point in time without any preparation
[other] than looking into what types of family situation the
children would live in, that would be detrimental to them.
In the long run, if there is a need for
a more permanent situation, if both parents are unable to
care for these children, then I would fully agree that
looking into a family relative type of placement and on
a reservation would be advisable. I think temporarily it would
be detrimental for them to be moved to the reservation
at this time, that temporarily they are--I think they should
remain where they are.
Craig Bertholf, a family counselor with Youth Homes of Mid-America,
testified about the children's current living situation. He testified that
he had seen the children in the home at least
once a week for the last seven or eight months
before the hearing. He further testified the children were happy,
well-cared for in Sharon's home, and were doing well academically.
Despite becoming frustrated with raising seven children, Sharon displays affection
for the children and acts as their "mother." The children
regard her as such and have bonded with her. He
recommended that if the children were removed from Andrew's custody,
that they remain temporarily in Sharon's home.
Tracey Parker, a social worker with the Iowa Department of
Human Services also testified she believed the children's best interests
would be served by their remaining
temporarily with Sharon. Neither she nor Bertholf were able to
learn anything substantive about the children's views of the reservation.
She told the Tribe's counsel,
would have to agree with Ms. Kline that if we
are looking for a permanent placement, then the Tribe needs
to be considered and I would support that. I have
concerns about the temporary nature right now of removing the
children from a stable *586
place, sending them to Wyoming with the idea that they
may then have to be brought back to Iowa.
She went on,
have no idea what the memory or if [the children]
have any memory of being on the reservation. That would
really need to be explored further with these children to
determine if it would be detrimental--to what extent it would
be detrimental for them to be returned to the reservation.
So Miss Parker, what you're saying is, as Miss Kline
said, if we're looking at temporary solutions, leave the kids
where they are. If we're looking for more permanent time
solutions, consider the Tribe? A. At this point that would
Reba had a different view. She testified that she wished
the children to go to the reservation now. But, there
may be a darker side:
If these children were placed on the reservation, would you
move back to the
reservation? A. Yes.
And reunite with your children? A. Yes.
Is that part of the reason you want them to
go to the reservation? A. Yes
The Tribe's counsel, hoping to rescue Reba, asked:
You understand this court can still retain jurisdiction and transfer
your kids to the reservation but you would still have
to abide by this court's ruling? Do you understand that?
The State then asked:
You haven't previously followed the court orders, have you? A.
No, I haven't.
Why is that? A. Because I'm a drug addict and
it was very hard for me to get a handle
on my problem.
More specifically, Reba had only seen the children six times
over the past two years before the hearing. Those visits
were in violation of a court order that required supervised
visitation and only if she provided two clean UAs.
The foregoing testimony establishes to our satisfaction that it would
be in the best interests of the children for them
to remain temporarily in Sharon's custody and that she is
a suitable person to have such custody.
Our view of the evidence also convinces us that the
children no longer have any meaningful ties to the Tribe.
The children have neither visited the reservation
in over three years nor have they heard from any
Tribe member during that time.
One parent favors transfer of the children to the reservation;
the other does not. In these circumstances, the wishes of
the parents carry little weight in our determination whether good
cause exists to deviate from the § 1915(b)
Our review of the evidence leads us to conclude there
are additional factors favoring the temporary placement here. First, in
this phase of the child in need of assistance proceeding,
the juvenile court will need additional information to determine a
permanent placement for the children, be it with their father,
mother, or a foster placement. We agree with the juvenile
court that geography alone ensures difficulty in this respect should
the children be temporarily located in Wyoming.
Second, we think the record amply demonstrates that Reba is
attempting to use the Tribe to circumvent court supervision of
Third, this is a temporary solution. Until the children reach
Wyoming, the Monroes, Reba's relatives, have every incentive to provide
information which--if it appears neither Reba nor Andrew can take
permanent custody--may show them to be suitable extended family member
placements. Once the children are there, temporarily or not, the
Monroes have no such incentive.
Last, because this is a temporary solution, we are confident
the juvenile authorities
will consider the Tribe, a tribal foster family, or Reba's
extended family for permanent placement. But, in the short term,
the children should not be uprooted.
In sum, we conclude the biological father's refusal to consent
to a transfer of jurisdiction to the Tribe in Wyoming
foreclosed the possibility of such transfer. The juvenile court correctly
denied the Tribe's motion to transfer.
Our interpretation of the ICWA leads us to conclude that
we may consider the best interests of the children in
addition to a number of other factors in deciding whether
good cause exists to deviate from the § 1915(b)
preferences. In our de novo review of the evidence, we
are satisfied that good cause exists to deviate from such
preferences and to leave temporary custody of the children with
Sharon. Thus, the juvenile court correctly placed temporary custody of
the children with Sharon.
In reaching our conclusions, we have carefully considered all of
the Tribe's arguments whether or not we have addressed them.
Finding no reason to disturb the juvenile court's order, we
572 N.W.2d 579