as: 688 N.W.2d 491)
of Appeals of Iowa.
the Interest of D.H., a Minor Child,
Amanda M. DeMichelis, of the Bull Law Office, P.C., Des
Moines, for appellant-father.
Thomas J. Miller, Attorney General, Tabitha Gardner, Assistant Attorney General,
John P. Sarcone, County Attorney, and Jennifer Galloway, Assistant County
Attorney, for appellee-State.
Cynthia Tofflemire, Des Moines, for the mother.
Christine Bisignano, Des Moines, for the child.
Considered by VOGEL, P.J., and HECHT and VAITHESWARAN, JJ., but
decided en banc.
Mike is the father of Danae, born in 1990.
Danae was adjudicated a child in need of assistance in
1995 based on physical abuse by her mother. She
remained a child in need of assistance due to ongoing
drug abuse by her mother and a repetition of the
physical abuse. As a teenager, Danae disclosed that she
had also been abused sexually by her father.
Mike's parental rights to Danae were terminated in 2004.
On appeal, Mike does not challenge the grounds for termination.
Instead, he contends: 1) the Federal and State
Indian Child Welfare Acts apply but were not followed, 2)
the State did not properly serve him with the petition
for termination of parental rights, and 3) termination was not
in the child's best interests.
Mike raises the Indian Child Welfare Acts for the first
time on appeal. *493
He states that the juvenile court did not determine whether
Danae was an "Indian child" within the meaning of the
two Acts. As to the Federal Act (25 U.S.C. §§
1901-63), Mike failed to preserve this issue for appellate review.
584 N.W.2d 577, 581 (Iowa Ct.App.1998).
Regarding the Iowa Indian Child Welfare Act (Iowa Code ch.
232B (Supp. 2003)), we will assume without deciding that the
challenge may be raised for the first time on appeal.
Mike correctly notes that Iowa Code section 232B.4(2) requires
a party seeking termination of parental rights over an Indian
child to determine whether the child is an Indian child.
The required inquiry is necessary when a child could
be, but is not known to be, an Indian child.
We are not convinced this provision creates a broad duty
to inquire of every child's status as an "Indian child"
in every proceeding that may theoretically be covered by chapter
232B. The duty of inquiry is qualified by section 232B.5(3),
which provides that the court or a party is "deemed
to know or have reason to know that an Indian
child" is the subject of an action where 1) the
court or party "has been informed ... that the child
is or may be an Indian child," 2) the child
"gives the court reason to believe that the child is
an Indian child," or 3) the court or party "has
reason to believe" that the child resides or is domiciled
in "a predominantly Indian community." Reading sections 232B.4(2) and
232B.5(3) together, as we must, we conclude that the section
232B.4(2) duty of inquiry concerning a potential Indian child's status
is triggered only by the circumstances set forth in Iowa
Code section 232B.5(3).
Applying Iowa Code section 232B.5(3) to the record and argument
before us, we find no evidence that 1) Mike or
anyone else informed the court Danae is or may be
an Indian child, 2) would have given the court reason
to believe she was an Indian child, or 3) Danae
resides in a predominately Indian community. Therefore, there is no
need for an inquiry into her status as a potential
Mike next contends the record only discloses that he was
served with the original notice and not with the petition
for termination of parental rights. See
In re S.P.,
672 N.W.2d 842, 846 (Iowa 2003) (noting order void as
to parent who has no notice of proceeding). The
record reveals that the Tazewell County Sheriff in Illinois file
stamped an original notice and personally served Mike with a
"notice." Included with the return of service was the
file stamped original notice, which made explicit reference to "a
petition in the above entitled action, a copy of which
is attached hereto." Cf.
Chader v. Wilkins,
226 Iowa 417, 420, 284 N.W. 183, 185 (1939) (citation
omitted) (stating, absent "clear and satisfactory proof" to the contrary,
we presume that a return of service correctly states the
manner of service"). We conclude Mike was properly served
with the termination petition.
Mike finally argues that termination is not in Danae's best
interests because her maternal grandmother is willing and able to
care for the child as she has in the past.
Iowa Code §
232.116(3)(a) (stating court need not terminate parental rights if "relative
has legal custody of child"). He also argues "the child
should have been called upon to state her views on
the termination." Id.
232.116(3)(b) (stating court need not terminate if "child is over
ten years old and objects to the termination").
It is true that Danae's grandmother was her caretaker for
much of the nine-year
period preceding termination. However, Danae was removed from the
grandmother's home in early 2003 when an investigation revealed that
she failed to protect Danae from recurring physical abuse by
her mother. Following that removal, Danae was placed in foster
care, then in a shelter, and finally at a facility
providing residential treatment services.
Meanwhile, Mike was sentenced to a 180 month prison term
for conspiring to sell methamphetamine. Even before his incarceration,
he was only seeing his daughter once a year.
His prospects for renewing contact with her were faint, given
a confirmed report that he sexually abused her as well
as recent revelations by Danae that the abuse was more
extensive than she first disclosed.
At the time of the termination hearing, Danae suffered from
conduct disorder, post-traumatic stress disorder, and depressive disorder. Her
move to a restrictive setting was precipitated by "out of
control" behaviors which included setting a fire in a school
bathroom, running away from home, using crack cocaine, sexually abusing
two children, and attempting suicide.
As for Danae's views concerning termination of her father's parental
rights, there is no evidence that Mike asked to have
her testify at the termination hearing. There is also
no evidence to suggest Danae wished to maintain a relationship
with her father.
On our de novo review, we conclude termination of Mike's
parental rights to Danae
was in her best interests.
All judges concur except SACKETT, C.J., who partially dissents.
SACKETT, C.J. (concurs in part and dissents in part).
I concur in part and dissent in part. I
would order a limited remand.
An allegation has been made for the first time on
appeal that no inquiry was made as to D.H.'s possible
Indian heritage, as required under Iowa Code section 232B.4 (Supp.2003),
and that the termination should be reversed because of the
failure of an inquiry. I agree strongly with the
State and the majority that this alone is not grounds
for reversal. But I would not end our inquiry
on this issue there. Rather, I would remand by
order to the juvenile court to hold a hearing to
determine the Indian status, if any, of this child.
I recognize, as the majority found, there is no real
evidence that the child would qualify as an Indian child.
Yet the State has failed to state in its
petition that either there is evidence the child qualified under
the federal or state Indian Child Welfare Act
[FN1] or there is not evidence the child qualified under
[FN2] Furthermore, there is no real evidence the
child does not qualify under either act. If, as
the allegation for reversal suggests, the father's current attorney has
evidence that the child would qualify, that evidence can only
be entered in the record with a remand.
[FN3] Consequently, if this challenge can first be *495
made on appeal as this court is doing,
[FN4] the only way to intelligently address the issue is
to remand for further proceedings, an alternative suggested by the
Iowa Code chapter 232B contains the Iowa Indian Child Welfare
Act. The federal Indian Child Welfare Act is found in
25 U.S.C. §§
By the time of a termination hearing, the State has
gathered substantial evidence on the child and his or her
family and I would suggest that the better practice would
be for the State to make such an allegation.
In saying this, I do not suggest that the failure
to do so in and of itself is grounds for
a reversal, as I have agreed with the State and
the majority it does not.
Any attorney raising this issue at the appellate level should
evidence that the child qualifies or evidence that raises a
debatable question as to whether the child qualifies. Any
attorney representing a party in juvenile court who has evidence
the child may qualify would have an obligation to make
that evidence known to the court and not wait to
raise the issue for the first time on appeal.
In saying this I recognize the majority has elected not
to raise the preservation issue raised by the State.
The majority has held that the need for the court
to inquire as to the child's status is only triggered
by the circumstances set forth in Iowa Code section 232B.5(3)
and apparently only at the trial court level, yet they
address it without the juvenile court having had an opportunity
to do so. The whole Iowa statutory scheme of
chapter 232B has wide-open definitions of an Indian child
[FN5] and places substantial burdens on both the court and
the State to make inquiry.
[FN6] Additionally, the failure to correctly identify a child
as an Indian child could result in a termination being
set aside in an action filed under the federal Indian
Child Welfare Act.
Iowa Code §
Iowa Code §
25 U.S.C. §
1914 (2002) provides:
Indian child who is the subject to any action for
foster care placement or termination of parental rights under State
law, any parent or Indian custodian from whose custody such
child was removed and the Indian child's tribe may petition
any court of competent jurisdiction to invalidate such action upon
a showing that such action violated any provision of section
1911, 1912 and 1913 of this act.
Iowa Code 232B.5(2) provides:
federal Indian child Welfare Act and this chapter are applicable
without exception in any child custody proceedings. A state
court does not have the discretion to determine the applicability
of the federal Indian Child Welfare Act or this chapter
to a child custody proceeding based upon whether an Indian
child is part of an existing Indian family.
Section 1912 provides for a state court
[FN8] that knows or has reason to know
the child may be subject to the federal act to
notify certain persons in a certain manner and to do
certain other things that did not happen in this case.
A failure to comply with these provisions could invalidate
this termination procedure. See
Doe v. Mann,
285 F.Supp.2d 1229, 1233 (N.D.Cal.2003) (noting a tribal member is
not precluded from bringing a federal court action challenging the
state court's child custody determination as a violation of the
Indian Child Welfare Act, the issue not having been raised
or adjudicated in state court).
Whether this statute also puts these requirements on an appellate
court when it is the first to be advised there
may be a question of the child's eligibility is not
I understand that we have a responsibility to see parental
termination cases are handled expeditiously. But the short time
necessary to remand for a hearing is insignificant when compared
with the time that the termination order could be held
in limbo by further litigation challenging the termination should the
child qualify under either or both the federal and state
The better practice, it would appear, is for the State
that has responsibility for determining the child's status to include
an allegation in its petitions that
a basic inquiry has been made and there is or
is not evidence the child qualifies under the Act. The
better practice for us is to take those precautions necessary
to strictly comply with both acts making further litigation less
likely and to assure that termination *496
orders from Iowa courts shall withstand challenges under the federal