as: 358 N.W.2d 311)
Court of Iowa.
the Interest of J.R.H. and M.J.H., Children,
Sioux Tribe, Intervenor-Appellant.
child-in-need-of-assistance proceedings, Supreme Court reviews evidence de novo. I.C.A. §§ 232.87-232.103.
and best interests of children are paramount in interpreting chapter
governing neglected, dependent and delinquent children. I.C.A. § 232.1
cause to deny transfer of proceedings affecting welfare of Indian
children to tribal court may arise from geographical conditions. I.C.A.
Indian Child Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
determining good cause to deny transfer of proceedings involving welfare
of Indian children to tribal court, Supreme Court may consider
circumstances when evidence
necessary to decide the case could not be adequately presented
in tribal court without undue hardship of parties or witnesses.
Indian Child Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
court correctly refused to transfer child-in-need-of-assistance proceedings to tribal court
in South Dakota where transfer would result in undue hardship
to parties and witnesses because bulk of evidence and majority
of witnesses were from Iowa. I.C.A. §§ 232.87-232.103;
Indian Child Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
of father's continued alcoholism alone was sufficient to support trial
court's determination that children continued to be in need of
assistance, and its refusal to return children to father, even
under burden of proof for review hearing,
which requires that foster placement should be terminated and child
returned to his or her home if court finds by
preponderance of evidence that child will not suffer harm. I.C.A.
232.102, subd. 6.
of Civil Procedure in portion of rules applicable to jury
trials which by its very terms, applied at "any time
before final submission," was inapplicable in reopening of child-in-need-of-assistance proceedings
after final submission. I.C.A. §§ 232.87-232.103;
Rules Civ.Proc., Rule 192.
court has broad discretion to reopen evidence.
child-in-need-of-assistance proceeding, trial court did not abuse its discretion in
granting motion to reopen after final submission. I.C.A. §§ 232.87-232.103.
child-in-need-of-assistance proceedings, best interests of children dictate that rules of
procedure be liberally applied in order that all probative evidence
might be admitted. I.C.A. §§ 232.87-232.103.
error committed by juvenile court in permitting presentation of evidence
by telephone conference calls in child-in-need-of-assistance proceeding was harmless, where
testimony did not reflect on father's ability to care for
his children. I.C.A. §§ 232.87-232.103.
that mother was unfit custodian for children is not necessary
in adjudicatory stage to give juvenile court jurisdiction to conduct
dispositional hearing in child-in-need-of-assistance proceedings. I.C.A. §§ 232.87-232.103.
that mother was unfit custodian for children was essential during
dispositional stage of proceeding in which juvenile court determined custody
of Indian children, if there was to be transfer of
legal custody of children pursuant to statute governing transfer of
legal custody of juvenile and placement. I.C.A. §§ 232.87-232.103,
parents were entitled to legal custody of children before initiation
proceedings, since father had acknowledged paternity, and Supreme Court has
ruled out gender-based discrimination in selection of custodial parent between
unwed parents, and sole legal custody in one parent had
never been established nor had either parent's right to permanent
legal custody been terminated. I.C.A. §§ 232.87-232.103,
court properly refused to adjudicate mother's petition for permanent custody
in child-in-need-of-assistance proceeding, since such proceeding contains no provision for
determination of permanent custody. I.C.A. §§ 232.87-232.103.
legal custody of child is transferred pursuant to statutory section
governing transfer of legal custody of juvenile, only temporary placement
of child is authorized, and at conclusion of proceedings, child
should be returned home
or proceedings to terminate parent-child relationship should be instituted. I.C.A.
lack of authority to make permanent disposition in child-in-need-of-assistance proceeding
does not affect court's authority to make temporary disposition, placing
child with parent who has right to legal custody. I.C.A.
court's consideration of mother as "relative or other suitable person,"
in child-in-need-of-assistance proceedings was improper, as mother was parent with
right to legal custody. I.C.A. §§ 232.87-232.103,
subd. 1, par. a.
that mother did not have physical custody of children prior
to child-in-need-of-assistance proceedings did not affect her status as parent
or her legal right to custody in absence of adjudication
concerning her fitness. I.C.A. §§ 232.87-232.103.
of legal custody of children in dispositional order is prohibited
unless court enters findings that child cannot be protected from
physical abuse without transfer of custody or that child cannot
be protected from some harm which would justify adjudication of
child as "child-in-need-of-assistance." I.C.A. §§ 232.87-232.103.
determining custody of children in child-in-need-of-assistance proceedings, juvenile court was
in error when it did not consider retention of custody
by mother pursuant to statutory section governing retention of custody
I.C.A. §§ 232.87-232.103,
of statutory section governing retention of custody by parent is
to keep legal custody of children with parent whenever possible
and it does not exclude parent who has right of
legal custody, but does not share physical custody prior to
commencement of proceedings. I.C.A. §§ 232.87-232.103,
there had been adjudication by clear and convincing evidence that
children had suffered or were imminently likely to suffer harm
resulting from acts or omissions of mother which would justify
adjudication of children as "children-in-need-of-assistance," juvenile court should not have
custody of children to Department of Human Services, but should
have utilized statutory section governing retention of custody by parent.
I.C.A. §§ 232.87-232.103,
proceeding to determine custody of children, juvenile court was not
limited to utilizing statutory section governing retention of custody by
parent, but could have adjudicated mother's fitness, or continued hearing
and directed that petition be amended appropriately at later hearing
on mother's fitness. I.C.A. §§ 232.87-232.103,
232.93, 232.101, 232.102, subd. 3.
to determine whether children are in need of assistance due
unfitness could result in temporary foster home placement of Indian
children and clearly fell under Indian Child Welfare Act. I.C.A.
Indian Child Welfare Act of 1978, §§ 2(4),
4(1, 4), 105(b), 25 U.S.C.A. §§ 1901(4),
1903(1, 4), 1915(b).
foster-home placement was necessary for Indian children in future, court
making disposition should consider cultural adjustments that children who had
not lived in Indian environment would have to make and
their individual ability to make those adjustments, rich Indian heritage
children would be deprived of if placed in white foster
home, preference of Indian child or parent, and protection of
best interests of Indian children. Indian Child Welfare Act of
1978, §§ 3,
102(e), 105(c), 25 U.S.C.A. §§ 1902,
Michael J. Schilling, Burlington, for appellant mother.
Michael G. Dieterich, Burlington, for appellant father.
William J. Cahill, Burlington, and Russell D. Zephier, Pine Ridge,
S.D., for intervenor-appellant Oglala Sioux Tribe.
Alan Waples, Burlington, guardian ad litem, for appellees J.R.H. and
Thomas J. Miller, Atty. Gen., Gordon E. Allen, Sp. Asst.
Atty. Gen., and Eleanor E. Lynn, Asst. Atty. Gen., for
Iowa Dept. of Human Services.
Considered by REYNOLDSON, C.J. and McCORMICK, LARSON, SCHULTZ and CARTER,
These appeals arise from a child-in-need-of-assistance (CINA) proceeding in juvenile
court pursuant to Iowa Code sections 232.87-.103. The State instituted
these proceedings on behalf of J.R.H. and his sister M.J.H.
The father, R.H., a resident of Burlington, Iowa, and the
mother, W.R.S., a resident of South Dakota, were given notice
of the proceedings and took part in them. The father
is white. The American Indian mother is a member of
the Oglala Sioux Tribe which has intervened on her behalf
and requested the proceedings be transferred to its tribal court.
Early in the proceedings, the juvenile court placed temporary custody
of the children with the Iowa Department of Human Services
(Department) for foster home placement because of suspected child abuse.
After an adjudication that the children were in need of
assistance, the juvenile court in two dispositional orders continued their
placement with the Department.
The mother appeals from the second dispositional order claiming the
court should have placed custody with her. The tribe appeals,
joining the mother's claim concerning the dispositional order, and further
claiming that the juvenile court order denying the tribe jurisdiction
over the children was in error. The father appeals challenging
the adjudicatory and dispositional orders of the juvenile court.
The Department and the children who are represented by an
appointed attorney do not appeal; however, they have expressed their
positions in their briefs and arguments. The Department recommended placement
of the children with the mother at the time of
the dispositional hearing and adheres to that position on appeal.
The attorney for the children urges that the juvenile court's
dispositional order be affirmed.
The father and mother lived together for approximately seven years,
but were never married. The parents traveled together throughout the
country in furtherance of the father's singing career. The mother
was married to another man until the marriage was dissolved
sometime after the birth of J.R.H. in 1972. J.R.H. was
born on the Pine River Reservation in South Dakota, and
his parents left the reservation several weeks after his birth.
M.J.H. was born in the University Hospital in Iowa City
while the parents were residing in Camanche, Iowa, in 1976.
Both children have been acknowledged by their father as his
children. The children are eligible for enrollment in the Oglala
The evidence reflects that the father has a long-standing drinking
problem. The mother testified that she was subjected to physical
abuse and that she left the home shortly after her
daughter was born due to this abuse and the father's
threats. She maintains that she unsuccessfully sought the aid of
the local authorities to secure physical custody of the children.
She returned to the reservation and sought the assistance of
her grandfather, a chief of the tribe. She indicated that
after performing a tribal rite, he told her the children
would be returned to her.
Until these proceedings commenced, the mother had little or no
contact with the children. From the time of the separation
until the institution of these proceedings, the father has had
the full responsibility for the children. He rarely worked, so
he was able to devote his time to the children.
The family has received Aid to Families With Dependent Children
and has lived in low-rent housing.
In January 1982 the Des Moines County Attorney's Office filed
a petition to have the children adjudicated children-in-need-of-assistance due to
physical abuse and neglect. The children had been placed in
emergency foster care on occasions due to their father's intoxication,
including one instance when he arrived for a court proceeding
intoxicated. There are numerous reports of physical abuse toward the
boy. On April 27, the children were placed with *315
the Department on an emergency basis due to physical abuse
to the boy which was committed the previous day.
The mother and the tribe were notified of the CINA
proceedings. The mother renewed contact with her children at times
when hearings were set in August and December of 1982.
On December 10, 1982, following an adjudicatory hearing, the juvenile
court found the children were in need of assistance. The
court cited the father's severe drinking problem and listed numerous
incidents of neglect of both children and physical abuse of
the boy. The petition does not allege that the children
were in need of assistance due to any acts of
the mother, and there were no findings to that effect
pursuant to Iowa Code section 232.2(5). The court stated that
the parties had agreed to a temporary disposition allowing the
children to remain in the present foster home placement pending
the dispositional hearing, which was then scheduled.
The dispositional hearing was set for January 11, 1982. The
attorney for the children had been authorized by the court
to travel to South Dakota to investigate the mother's situation
in regard to custody of the children, and the court
additionally authorized the father's attorney to conduct such an investigation
at county expense. Home studies concerning the mother were prepared
by the Department.
At the dispositional hearing in January 1983, all parties, except
the father, recommended
placement with the mother. On January 19, 1983, the court
ordered that the children remain in the temporary legal custody
of the Department with placement authorized in a foster home.
The court further ordered that at the expiration of the
second semester of school, the children were to be transported
to South Dakota for temporary placement with the mother during
the summer months under the supervision of the Department. A
hearing for review and further disposition was set for August
5, 1983. The juvenile court found that the father continued
to suffer from a drinking problem which detrimentally affects his
treatment of the children and that it would be inappropriate
to return the children into his custody. Upon considering placement
with the mother, the court found that she "is unemployed,
living on very limited public assistance, and further that her
living arrangements, if the children were placed with her, are
very uncertain and presently crowded, lacking in necessary facilities and
inappropriate." At that time the mother was unemployed and lived
on the reservation with members of her extended family.
At the time of the summer visitation with the mother,
she moved off the reservation to Rapid City, South Dakota.
She secured better housing and a job. The children were
returned to Iowa and placed once again in foster care
awaiting the outcome of the scheduled hearing.
The next hearing commenced, and evidence was presented on August
5 and 6. The matter was taken under advisement; however,
the hearing was later reopened and further
evidence was taken on October 20, 1983.
The father presented evidence that he had undergone treatment for
his alcoholism and had made great strides in treatment. At
the reopened hearing, however, evidence was admitted that the father
had been arrested for public intoxication.
The mother provided evidence that she had moved to Rapid
City, secured better housing and employment. She indicated that she
had provided the children with recreational activities and the opportunity
to meet their family and learn of their cultural background.
A social worker for the Bureau of Indian Affairs in
South Dakota and an Indian child welfare advocate for the
Oglala Sioux Tribe visited the mother's home while the children
were there and found the situation satisfactory. One incident occurred
in which the boy was involved in some bicycle thefts
with a neighbor boy. The witnesses indicated that the mother
properly disciplined the boy.
The foster mother was called to testify by the father
and gave a different slant on the summer's activities. She
transported the children to South Dakota and testified that while
the house was satisfactory, the area around it was like
a Chicago ghetto. She further testified there were intoxicated men
at the house behaving in what she felt was an
inappropriate manner toward the mother. The foster mother reports that,
after their return to Iowa, the children have talked about
drinking and fighting which occurred during
their visit. This testimony is suspect. The social worker concluded
that the foster mother became emotionally involved with the children
and lost her objectivity.
The State presented evidence through a social worker for the
Department who testified and presented a report of her social
investigation. The social worker concluded the father had not demonstrated
sufficient progress to warrant the return of the children to
his care. She indicated that the mother had provided the
children's basic needs during the two months' visitation without any
abuse or neglect; however, she thought that the mother would
benefit from parenting assistance and would need to establish her
own residence. The social worker further recommended that the court
apply the Indian Child Welfare Act of 1978 (ICWA), 25
U.S.C. §§ 1901-63
(1982), with special emphasis on the order of preference in
placement; thus, the children should be placed in an Indian
home with the first preference given to their mother, second
preference to an appropriate home of one of their Indian
relatives, and third preference to an Indian foster home.
The attorney for the children in his written recommendation following
the first hearing, but prior to the reopened hearing, recommended
that legal custody remain in the Department of Human Services
with physical placement to be with the natural father during
the school year and with the natural mother during the
summer vacation, such placement to be supervised by the Department.
record does not indicate a subsequent recommendation following the reopening.
On December 9 the juvenile court entered its ruling. The
juvenile court described its January order as a temporary placement
and stated that it had set the dispositional hearing for
August 5. It then rejected the mother's and father's claims
and ordered custody granted to the Department for continued foster
home placement pending a change in present conditions and pending
further order of the court. Concluding that it could not
grant the mother's request for permanent custody, the court invited
the parties to litigate the issue of custody in a
court of competent jurisdiction pursuant to the present Iowa Code
section 232.3(2) (Supp.1983).
Section 232.3(2) provides that the "juvenile court with jurisdiction of
the pending action under this chapter, however, may, upon the
request of a party to the action or on its
own motion, authorize the party to litigate concurrently in another
court a specific issue relating to the custody, guardianship, or
placement of the child who is a subject of the
The court found the children continued to be in need
of assistance upon clear and convincing evidence that the father
continues to suffer from an alcoholic condition
which he is unable to control and from a tendency
to overreact to perceived problems, described by the psychologist as
impaired judgment and by the county attorney as a "paranoid
The court indicated it must determine an appropriate disposition pursuant
to section 232.102 and that it considered placement with the
mother pursuant to section 232.102(1)(a) as "[a] relative or other
suitable person." The court rejected placement with the mother on
the basis that it would not be in the best
interests of the children to have another temporary disposition. The
court found the mother's living conditions did not substantially improve
when she moved to Rapid City and went on to
criticize her long work hours due to subsistence wages. The
court noted that the children "during the visit were witnesses
to alcohol abuse, some conducted by a child of age
10, overt sexual activity, fighting, and other criminal conduct which
was certainly *317
not conducive to good emotional or physical health." The court
indicated that the mother's troubles in this regard seem to
be of a continuing nature.
The juvenile court extensively discussed matters concerning the Tribe's intervention
and the applicability of the ICWA. It overruled the father's
objection to the intervention and the participation of the Tribe's
counsel. Finally, it concluded the ICWA was inapplicable to this
parties appeal from the dispositional orders. In CINA proceedings
we review the evidence de novo. In
re Blackledge, 304
210 (Iowa 1981). The legislature provided specific guidelines
for interpreting chapter 232 by stating:
chapter shall be liberally construed to the end that each
child under the jurisdiction of the court shall receive, preferably
in his or her own home, the care, guidance and
control that will best serve the child's welfare and the
best interest of the state.
Iowa Code § 232.1
(1983). The welfare and best interests of the children are
199 N.W.2d 111, 120 (Iowa 1972).
This appeal has raised a multitude of issues briefed by
the various participants. We have considered all of the issues
presented, but shall comment only on those points that we
consider dispositive. We shall discuss the claims of the tribe,
the mother and the father in that order.
Transfer to tribal court.
The Oglala Sioux Tribe sought transfer of these proceedings to
the Oglala Sioux Tribal Court. As authority for the transfer,
the Tribe cites the ICWA which in pertinent part states:
any State court proceeding for the foster care placement of,
... 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 child's tribe....
25 U.S.C. § 1911(b)
On September 15, 1982, the juvenile court denied the Tribe's
application for transfer of the proceedings, implicitly finding good cause
to deny transfer. The Tribe now appeals this decision. We
find this claim without merit; therefore, it is unnecessary to
consider the claim that this appeal was untimely.
Good cause to deny transfer of
the proceedings to the tribal court may arise from geographical obstacles.
In determining good cause, we may consider the circumstances
when the "evidence necessary to decide the case could not be adequately
presented in the tribal court without undue hardship of the parties or
the witnesses." Guidelines for State Courts; Indian
Child Custody Proceedings, 44 Fed.Reg. 67,591 (1979).
We conclude the juvenile court
was correct in its determination that the proceedings should not be transferred.
The Tribe's contact has been with the mother, not the family
unit. The State of Iowa through its social agency has had
extensive contact with the family unit. The bulk of the evidence
and the majority of the witnesses will come from Iowa. The
transfer would result in undue hardship to the parties and the witnesses.
Good cause was shown to deny the transfer.
The father raises procedural, evidentiary and failure of proof issues.
We hold that the juvenile court correctly refused his claim
seeking the return of the children.
The father claims that the court erred in considering the
hearing that commenced in August 1983 and culminated with a
ruling on December 9 to be a disposition hearing and
applying the statutes and burden of proof applicable to a
disposition hearing, when it actually was a review hearing. We
find it unnecessary to consider this issue because the father
would not be successful in either event. The burden of
proof for a *318
review hearing is stated in section 232.102(6):
placement should be terminated and the child returned to his
or her home if the court finds by a preponderance
of the evidence that the child will not suffer harm
in the manner specified in section 232.2, subsection 5 [which
lists the bases for finding a child to be in
need of assistance].
The juvenile court found in its December 1983 ruling as
evidence establishes by clear and convincing evidence that [father] continues
to suffer from an alcoholic condition which he is unable
to control. The evidence also shows [father] suffers from a
tendency to overreact to perceived problems described by the psychologist
as impairment of judgment and which has been described by
the county attorney as a "paranoid tendency." The children continue
to be in need of assistance.
The evidence of the father's continued
alcoholism alone is sufficient to support the court's determination that
the children continue to be in need of assistance, even under the burden
of proof for a review hearing. The numerous
instances of child abuse and neglect are an outgrowth of the father's
alcoholism. The court correctly refused to return the children
to the father's care.
The father also asserts that the
trial court erred when it reopened the case and took additional testimony
after final submission in August, citing Iowa Rule of Civil Procedure
192. Rule 192 is inapplicable. Its placement is in that
portion of the rules that are applicable to jury trials. By its very terms,
it applies "any time before final submission," and this was
a reopening after final submission.
a trial to the court, the court has broad discretion to reopen the evidence;
this court has said, "Such discretion is to be liberally exercised."
Dobler v. Bawden,
238 Iowa 76, 85, 25 N.W.2d 866, 871 (1947). We find no abuse of discretion;
the motion to reopen should have been granted. This
is a juvenile case in which the best interests of the children dictate
that the rules of procedure be liberally applied in order that all probative
evidence might be admitted.
the father claims the juvenile court erred in overruling his objection
to the presentation of evidence by telephone conference calls in the August
1983 hearing. All other parties agreed with the procedure.
The witnesses testified from South Dakota concerning the mother's
home situation and the two-month visit by the children. This
testimony did not reflect on the
father's ability or lack of ability to care for the children. In
this instance the testimony could not have changed the outcome as far
as the father was concerned. We conclude that error, if any,
On appeal, the mother has not challenged the adjudicatory order
determining the children to be in need of assistance. Rather,
she claims the juvenile court erred in its dispositional ruling
by not placing custody of the children with her.
The mother primarily relies on the failure of the court
to apply the provisions of the ICWA to the proceedings;
however, she also urges that the court at no time
concluded that she was an unfit parent and that her
children would suffer emotional or physical damage if they were
placed with her. She maintains that the court's criticism of
her employment situation and her social and cultural environment is
misplaced. She points to the court's finding in an earlier
hearing that her unemployment and crowded residence were unacceptable and
argues that she remedied this situation. Thus, the court did
not have substantial evidence to support its comments concerning social
and cultural deficiencies in her home.
With the exception of the father, all parties acknowledge the
applicability of the ICWA to the dispositional proceedings. We determine
the juvenile court erred when it applied the dispositional standards
of a CINA proceeding. Consequently, we *319
find it unnecessary to address the ICWA issue as it
to the present record.
we shall consider the Department's contention that disposition of any
sort was premature. The Department correctly points out that
the mother has never been adjudged an unfit custodian for the children.
We cannot accept the Department's next assertion that such a finding is
necessary in the adjudicatory stage to give the court jurisdiction to
conduct a dispositional hearing. We believe such a finding
was essential in this case during the dispositional stage if there was
to be a transfer of legal custody of the children pursuant to section
232.102. However, since the juvenile court did not acknowledge
the mother's right to legal custody and entered a disposition without
any adjudication concerning her fitness, the juvenile court applied incorrect
standards in its dispositional rulings.
Under the record of this case,
we determine that both parents were entitled to legal custody of the children
before the initiation of the CINA proceedings. The mother
of a child born out of wedlock has the right to sole custody of the child
unless paternity has been acknowledged by the father or the court has
ordered otherwise. Iowa Code § 675.40 (1983). It
is undisputed that the father has acknowledged paternity of the children
and had physical custody of the children prior to the CINA proceedings.
Sole legal custody in one parent has never been established
nor has either parent's right to permanent legal custody been terminated.
We held in Heyer
v. Peterson, 307
N.W.2d 1 (Iowa 1981), that a mother, who had physical custody of the child,
could not deprive an unwed father of his right to legal custody without
proper notice. Id.
at 6. We also ruled out gender-based discrimination in the
selection of a custodial parent between unwed parents. Id.
at 7. Applying our ruling in Heyer
to the present case, both unwed parents share the right to legal custody
of their children.
review of the dispositional orders convinces us that the juvenile court
failed to consider the mother's right to legal custody. We
agree that the juvenile court properly refused to adjudicate the mother's
petition for permanent custody. The court correctly concluded
that a CINA proceeding contains no provision for determination of permanent
custody. When legal custody is transferred pursuant to section
232.102, only temporary placement of the child is authorized, and at the
conclusion of the proceedings, the child should be returned home or proceedings
to terminate the parent-child relationship should be instituted. Iowa
Code § 232.103 (1983); Blackledge,
304 N.W.2d at 214. The lack of authority to make a permanent
disposition does not affect the court's authority to make a temporary
disposition, placing the child with a parent who has a right to legal
only consideration that the juvenile court gave the mother was pursuant
to section 232.102(1)(a) as a "relative or other suitable person."
This was an improper consideration as she was a parent with
a right to legal custody. The very language of subsection
(1) refers to "an order transferring the legal custody of the child."
It is apparent the juvenile court did not consider the mother's
right to legal custody of the children. The term "parent" as
used in chapter 232 includes "a natural or adoptive mother or father
of a child but does not include a mother or father whose parental rights
have been terminated." Iowa Code § 232.2(34) (1983).
The fact that the mother did not have physical custody of
the children prior to these proceedings did not affect her status as a
parent or her legal right to custody in the absence of an adjudication.
The dispositional provisions of the CINA statutes provide the juvenile
court with three options concerning the legal custody of the
juvenile. It could have conditionally suspended judgment for twelve months,
section 232.100; entered an order conditionally permitting the children's parent
at the time the petition was filed to retain custody,
section 232.101; or transferred legal custody to one of the
alternate placements listed in section 232.102(1). As previously *320
indicated, the alternatives for transfer of legal custody in section
232.102(1) do not include placement with a parent who already
has the right to legal custody. The juvenile court in
this instance passed by the provisions concerning suspension of the
judgment or retention of custody by a parent and incorrectly
opted to transfer legal custody to the Department. This transfer
of legal custody, although merely temporary, also affected the mother's
right to legal custody.
The transfer of legal custody
of children in a dispositional order is prohibited unless the court enters
certain findings. This direction is provided in section 232.102
which states in pertinent part:
Whenever possible the court should permit the child to remain
at home with his or her parent, guardian or custodian.
of the child should not be transferred unless the court
finds there is clear and convincing evidence
The child cannot be protected from physical abuse without transfer
of custody; or
child cannot be protected from some harm which would justify
the adjudication of the child as a child in need
and an adequate placement is available.
(emphasis added). The definition of child-in-need-of-assistance, section 232.2(5), is extensive,
but generally alleges conditions caused by the unfitness of a
parent due to either his acts or his failure to
act toward the child involved. In this instance, sufficient allegations
were made and proved to support a finding that the
father was not a fit custodian for these children. However,
no such allegations were made or proved with regard to
the mother. No real consideration was given her in these
proceedings until the dispositional
stage, at which time she was pitted against other foster
care placement alternatives in a competition to regain physical custody
of the child. Her right to legal custody has never
been terminated. There has never been a hearing or determination
by clear and convincing evidence that her children have suffered
or are imminently likely to suffer some harm resulting from
her acts or omissions which would justify the adjudication of
the children as in need of assistance. It is obvious
that the juvenile court did not consider the mother's coexisting
right to legal custody of the children when it transferred
legal custody of the children to the Department.
We conclude that the juvenile
court was in error when it did not consider retention of custody by the
mother pursuant to section 232.101. This section in pertinent part states
After the dispositional hearing, the court may enter an order
permitting the child's parent ... at the time of the
filing of the petition to retain custody of the child
subject to terms and conditions which the court prescribes to
assure the proper care and protection of the child. Such
terms and conditions may include supervision of the child and
the parent ... by the department of human services, juvenile
probation office or other appropriate agency which the court designates....
The duration of any period of supervision or other terms
or conditions shall be for an initial period of no
more than eighteen months and the court, at
the expiration of that period, upon a hearing and for
good cause shown, may make not more than two successive
extensions of such supervision or other terms or conditions of
up to twelve months each.
Iowa Code § 232.101
purpose of these sections is to keep legal custody of children with a
parent whenever possible. We do not interpret section 232.101
to exclude a parent who has a right of legal custody, but did not share
physical custody prior to the commencement of the proceedings. This
case is not analogous to the situation presented in In
re Blackledge, 304
N.W.2d 209 (Iowa 1981), in which legal custody had been established in
one parent, excluding the other parent. Until there had been
an adjudication by clear and convincing evidence that *321
the children had suffered or were imminently likely to suffer harm resulting
from acts or omissions of the mother which would justify the adjudication
of the children as children-in-need-of-assistance, the court should not
have transferred legal custody of the child to the Department. It
should have utilized section 232.101.
As an addendum, the juvenile court
was not limited to this one result. If it appeared to the
juvenile court during these proceedings that the interest of the children
demanded an adjudication of the mother's fitness pursuant to section 232.102(3),
the court may have tried this issue with the consent of the parties pursuant
to section 232.93. If consent was not given,
we believe the court possessed inherent power to protect the interests
of the children by continuing the hearing and directing that the petition
be amended appropriately for a later hearing on the issue.
As indicated in division III, the dispositional orders of the
juvenile court must be set aside. Unfortunately, the children have
been in foster care for 2 1/2 years, except for
the 2 months spent with their mother. Nearly a year
has passed since the last hearing. The juvenile court is
in a better position to determine present conditions. Unless conditions
have changed or the mother is determined to be an
unfit parent pursuant to section 232.102(3) after notice and hearing,
the children should be placed in her custody subject to
any terms, conditions and time extensions which the juvenile court
prescribes pursuant to section 232.101. If the parties wish permanent
settlement of rights to sole custody, they should accept the
invitation of the juvenile court to independently litigate this issue.
If the matter of the mother's fitness for custody becomes
an issue, the applicability of the ICWA will become an
issue. We shall briefly address this question.
The ICWA was passed in response to a perceived pattern
of discrimination against American Indians in child welfare and child
custody proceedings. Barsh, The
Indian Child Welfare Act of 1978: A Critical Analysis,
31 Hastings L.J. 1287, 1287-96 (1980). There was concern that
too many Indian children
were removed from Indian homes and deprived of their cultural
heritage. 25 U.S.C. § 1901(4)
Act applies to certain child custody proceedings which involve Indian
children. The two children here fall within the Act's definition
of Indian children because they are eligible for enrollment in a tribe.
25 U.S.C. § 1903(4) (1982). The Act defines
a child custody proceeding to include any action removing an Indian child
from its parent or Indian custodian for temporary placement in a foster
home or institution when the parent or Indian custodian cannot have the
child returned upon demand, but parental rights have not been terminated.
25 U.S.C. § 1903(1) (1983). Only delinquency
proceedings, § 1903(1), and dissolution proceedings, H.R.Rep.
No. 95-1386, 95th Cong., 2d Sess. 12, reprinted
in 1978 U.S.Code Cong.
& Ad.News 7530, are excepted from coverage. A proceeding
to determine whether the children are in need of assistance due to the
mother's unfitness could result in temporary foster home placement of
these Indian children and clearly falls under the ICWA.
1915(b) establishes a scheme of foster care preferences under the Act,
stating that 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 approved by the Indian child's tribe, an Indian
foster home, or an institution for children approved by an Indian tribe
by an Indian organization. The standard of "absence of
good cause to the contrary" may include consideration of the cultural
adjustments these children, who have not lived in an Indian environment,
would have to make and their individual ability to make those adjustments.
Of course, this must be established by testimony of qualified
expert witnesses. 25 U.S.C. § 1912(e) (1982). In
addition, the rich Indian heritage these children will be deprived of
if placed in a white foster home should *322
be consdidered. 25 U.S.C. § 1915(c) (1982). The
cultural and socioeconomic considerations used by the juvenile court to
justify its second dispositional order placing these children in a white
foster home would clearly be inappropriate under the ICWA; they
are not to be considered when removing an Indian child, 44 Fed.Reg. 67,593
(1979), and should not be a basis for a finding of good cause for not
following the established foster care preferences. Finally,
Congress in its first declaration of policy referred to protection of
"the best interests of Indian children." 25 U.S.C. § 1902
(1982). All of these matters should be considered if foster
home placement is necessary for these children in the future.
REVERSED AND REMANDED.
358 N.W.2d 311