|
(Cite
as: 779 N.W.2d 481) |
Court
of Appeals of Iowa.
In
the Interest of J.L., L.R., and S.G., Minor Children,
J.L.,
L.R., and S.G., Minor Children, Appellants.
No.
09-0945.
Nov.
25, 2009.
Held
UnconstitutionalI.C.A. ? 232B.5(10, 13) *483
Amanda Van Wyhe of Vriezelaar, Tigges, Edgington, Bottaro, Boden, & Ross,
L.L.P., Sioux City, guardian ad litem and attorney for minor
children.
Timothy
Scherle of Scherle Law Firm, Sioux City, for appellee father of
J.L.
*484
Brian Buckmeier of Buckmeier & Daane Law Firm, Sioux City, for appellee
father of S.G.
Thomas
J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Patrick
Jennings, County Attorney, and Dewey Sloan, Assistant County Attorney, for
appellee State.
Rosyland
Koob of Heidman Law Firm, Sioux City, for intervenor Winnebago Tribe of
Nebraska.
Considered
by VOGEL, P.J., and VAITHESWARAN and POTTERFIELD, JJ.
VOGEL,
P.J.
J.L.,
L.R., and S.G. appeal from the district court's ruling that they, through their
attorney/
I.
Background Facts and Proceedings.
Since
2003, when S.G. tested positive for methamphetamine at birth, the children's
family has been involved with the Iowa Department of Human Services.
Subsequently, S.G. (born 2003), L.R. (born 2006), and J.L. (born 2008) were
adjudicated to be children in need of assistance (CINA). On December 29, 2008, a
petition seeking the termination of parental rights was filed for all three
children.
The
Winnebago Tribe of Nebraska (Tribe) intervened.FN1
In March 2009, the Tribe filed motions to transfer jurisdiction. Subsequently,
the children's attorney/
FN1.
The Tribe was granted intervention on behalf of S.G. in November 2008 and on
behalf of L.R. and J.L. in April 2009.
FN2.
Iowa Code section 232.89 requires that following the filing of a CINA petition,
an attorney and guardian ad litem be appointed for the child. See
also
Iowa Code ? 232.2(22) (defining a guardian ad litem as ?a person appointed by
the court to represent the interest of a child in any judicial proceedings to
which the child is a party?); In
re D.W.,
385 N.W.2d 570, 579 (Iowa 1986) (stating due process requires that counsel
appointed pursuant to a statute provide effective assistance). The same person
may serve as both the child's attorney and guardian ad litem, unless a conflict
arises between the two roles. Iowa Code ? 232.89(4); see
also In
re T.P.,
757 N.W.2d 267, 274 (Iowa Ct.App.2008); In
re A.T.,
744 N.W.2d 657, 665 (Iowa Ct.App.2007). Additionally, both the Federal and Iowa
Indian Child Welfare Act provide for the appointment of an attorney for an
Indian child. See
25 U.S.C. ? 1912(b) (?The court may, in its discretion, appoint counsel for the
child upon a finding that such appointment is in the best interest of the
child.?); Iowa Code ? 232B.5(16) (?The child shall also have the right to
court-appointed counsel in any removal, placement, termination of parental
rights, or other permanency proceedings.?).
FN3.
The State through the county attorney also filed a resistance to the Tribe's
motion to transfer. See
In
re A.W.,
741 N.W.2d 793, 803 (Iowa 2007) (?County attorneys ... bear a statutory duty to
represent the interests of the State in the juvenile court.?) The district court
found that the State could not object to the motion to transfer and did not
consider the State's objection.
FN4.
The ruling was dated June 16, 2009, but was file stamped June 17,
2009.
The
children appeal and assert that they are permitted to object to a motion to
transfer pursuant to Iowa Code section 232B.5(10), and if they are not permitted
to object, section 232B.5(10) is unconstitutional as it violates their rights to
due process and equal protection under the United States and Iowa Constitutions.
Furthermore, they claim that if they cannot object to a transfer of jurisdiction
based upon their best interests, section 232B.5 violates their rights to due
process under the United States and Iowa Constitutions.
II.
Standard of Review.
[1][2][3][4]
Normally, our review of juvenile proceedings is de novo. In
re N.V.,
744 N.W.2d 634, 636 (Iowa 2008). However, we review a court's ruling on motions
to transfer for correction of errors at law. Id.
We review issues of statutory construction for errors at law, but review
constitutional challenges to a statute de novo. In
re N.N.E.,
752 N.W.2d 1, 6 (Iowa 2008); In
re A.W.,
741 N.W.2d 793, 806 (Iowa 2007).
III.
Analysis.
In
1979, Congress passed the Federal Indian Child Welfare Act (ICWA), which
established ?minimum Federal standards for the removal of Indian children from
their families and the placement of such children in foster or adoptive homes.?
N.N.E.,
752 N.W.2d at 6-7 (citing 25 U.S.C. ?? 1901-1963). States are permitted to
expand on the protections established pursuant to ICWA. Id.;
see
25 U.S.C. ? 1921 (directing courts to apply either state or federal law,
whichever provides greater protection to an Indian child's parents or an Indian
custodian). However, states cannot provide additional rights to tribes at the
expense of the parents' or children's rights. N.N.E.,
752 N.W.2d at 9. Iowa passed its own ICWA in 2003 with its stated purpose to
?clarify state policies and procedures regarding implementation of the [Federal
ICWA].? Iowa Code ? 232B.2 (2009); N.N.E.,
752 N.W.2d at 7. As permitted by the federal legislation, the Iowa ICWA extends
additional protections to Indian families and tribes. N.N.E.,
752 N.W.2d at 7; A.W.,
741 N.W.2d at 798.
[5]
The Federal ICWA creates a dual jurisdictional scheme for child custody
proceedings involving an Indian child. 25 U.S.C. ? 1911; Miss.
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 36, 109 S.Ct. 1597, 1602, 104 L.Ed.2d 29, 38 (1989). *486
Section 1911(a) creates exclusive jurisdiction with a tribe over child custody
proceedings involving an Indian child residing or domiciled within the
reservation. However, the Federal ICWA does not divest state courts of their
jurisdiction over an Indian child not residing or not domiciled within the
reservation. In
re C.W.,
239 Neb. 817, 479 N.W.2d 105, 112 (1992) (citing Kiowa
Tribe of Okla. v. Lewis,
777 F.2d 587, 592 (10th Cir.1985), cert.
denied
479 U.S. 872, 107 S.Ct. 247, 93 L.Ed.2d 171 (1986)). Rather, section 1911(b)
creates concurrent but presumptively tribal jurisdiction over child custody
proceedings involving an Indian child not residing or domiciled within the
reservation and provides for transfer of jurisdiction from state courts to
tribal courts. See
In
re T.S.,
245 Mont. 242, 801 P.2d 77, 82 (1990) (discussing the distinction between a
section 1911(a) case and a section 1911(b) case).
One
instance where the Iowa ICWA purports to expand on the protections afforded by
the Federal ICWA is in proceedings to transfer jurisdiction from state court to
tribal court. Under the Federal ICWA, proceedings are transferred upon the
petition of the child's parents, Indian custodian, or tribe. 25 U.S.C. ?
1911(b). However, the petition shall be denied if either parent objects, the
tribal court declines jurisdiction, or upon a finding of good cause.
Id.
?Good cause? is not defined in the statute, but the Bureau of Indian Affairs
issued nonbinding guidelines to assist state courts in applying the Federal
ICWA. N.N.E.,
752 N.W.2d at 7; see
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg.
67,584 (Nov. 26, 1979) (setting forth a non-exclusive list of five factors that
may constitute good cause) [hereinafter Guidelines]. The introduction to the
Guidelines states that ?the legislative history of the Act states explicitly
that the use of the term good cause' was designed to provide state courts with
flexibility in determining the disposition of a placement proceeding involving
an Indian child.? Guidelines, 44 Fed. Reg. at 67,584; see
In
re Robert T.,
200 Cal.App.3d 657, 246 Cal.Rptr. 168, 172 (1988). Under the guidelines, the
children subject to the proceeding may object to the transfer of jurisdiction.
See
Guidelines, 44 Fed. Reg. at 67,590 (?If the court believes or any
party
asserts that good cause to the contrary exists, the reasons for such belief or
assertion shall be stated in writing and made available to the parties who are
petitioning for transfer.? (emphasis added)); see,
e.g., In
re M.C.,
504 N.W.2d 598, 601 (S.D.1993) (finding that under the Federal ICWA an Indian
child was entitled to an evidentiary hearing to establish good cause not to
transfer jurisdiction to a tribal court). Furthermore, in determining whether
good cause exists to deny a motion to transfer, the children's best interests
may be considered. See
e.g., In
re Appeal in Maricopa County Juvenile Action No. JS-8287,
171 Ariz. 104, 828 P.2d 1245, 1251 (Ariz.Ct.App.1991) (?A trial court properly
may consider an Indian child's best interest when deciding whether to transfer a
custody proceeding to tribal court.?); Robert
T.,
246 Cal.Rptr. at 175 (stating the best interest of the child is a ?pertinent and
indeed a necessary consideration in deciding whether to grant or deny a transfer
request?); In
re Adoption of T.R.M.,
525 N.E.2d 298, 308 (Ind.1988) (stating that the best interests of the child is
a valid consideration in determining whether to transfer a child custody
proceeding to tribal court); T.S.,
801 P.2d at 80-81 (same); In
re N.L.,
754 P.2d 863, 869 (Okla.1988) (same); In
re J.L.,
654 N.W.2d 786, 792-93 (S.D.2002) (considering the best interests of a child in
determining whether to transfer to tribal court); but
see, e.g., In
re J.L.P.,
870 P.2d 1252, 1258 (Colo.1994) (stating that the best interests*487
of the child are not relevant in determining whether to transfer child custody
proceedings to tribal court); In
re Armell,
194 Ill.App.3d 31, 141 Ill.Dec. 14, 550 N.E.2d 1060 (1990) (same); In
re C.E.H.,
837 S.W.2d 947 (Mo.Ct.App.1992) (same); In
re A.B.,
663 N.W.2d 625, 633-34 (N.D.2003) (same).
[6]
However, the Iowa ICWA narrowly defines who may object to a transfer proceeding
and good cause. Iowa Code section 232B.5 states:
(10)
Unless either of an Indian child's parents objects, in any child custody
proceeding involving an Indian child who is not domiciled or residing within the
jurisdiction of the Indian child's tribe, the court shall transfer the
proceeding to the jurisdiction of the Indian child's tribe, upon the petition of
any of the following persons:
a.
Either of the child's parents.
b.
The child's Indian custodian.
c.
The child's tribe.
....
(13)
If a petition to transfer proceedings as described in subsection 10 is filed,
the court shall find good cause to deny the petition only if one or more of the
following circumstances are shown to exist:
a.
The tribal court of the child's tribe declines the transfer of
jurisdiction.
b.
The tribal court does not have subject matter jurisdiction under the laws of the
tribe or federal law.
c.
Circumstances exist in which the evidence necessary to decide the case cannot be
presented in the tribal court without undue hardship to the parties or the
witnesses, and the tribal court is unable to mitigate the hardship by making
arrangements to receive and consider the evidence or testimony by use of remote
communication, by hearing the evidence or testimony at a location convenient to
the parties or witnesses, or by use of other means permitted in the tribal
court's rules of evidence or discovery.
d.
An objection to the transfer is entered in accordance with subsection
10.
Unlike
the Federal ICWA, the Iowa ICWA limits a finding of good cause to deny a
transfer to four enumerated circumstances. See
N.V.,
744 N.W.2d at 637 (?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.?). The good cause definition
only allows for an objection to the transfer by the parents. Iowa Code ?
232B.5(10), (13). Additionally, the narrow definition of good cause does not
allow for the children's best interests to be considered in determining whether
good cause exists to deny a transfer. N.V.,
744 N.W.2d at 638.
A.
Statutory Claim.
[7][8][9]
The children argue that the district court erred in finding the children could
not object to the transfer proceedings pursuant to Iowa Code section 232B.5(10).
The provisions of the Iowa ICWA are to be strictly construed and applied.
In
re R.E.K.F.,
698 N.W.2d 147, 149 (Iowa 2005).
We
only resort to the rules of statutory construction when a statute is ambiguous.
When a statute's language is plain and its meaning is clear, we look no further.
If reasonable persons can disagree on a statute's meaning, it is
ambiguous.
N.V.,
744 N.W.2d at 637. In this case, the statute's language is plain, clear, and
susceptible to only one interpretation.
[10]
The Iowa ICWA specifically states that ?[u]nless either of an Indian child's
parents objects ... the court shall transfer *488
the proceeding? and does not provide for an objection by any other party to the
proceedings, including the children. See
Iowa Code ? 232B.5(10). However, in support of their argument, the children cite
to cases interpreting the Federal ICWA finding that a child has standing to
object to a motion to transfer. See,
e.g., M.C.,
504 N.W.2d at 601. The State responds that the Federal ICWA does contemplate
objections to transfers, but the Iowa ICWA does not. On this point, we agree
with the State. The Federal ICWA allows for all parties to the proceedings to
object under a good cause analysis, but the Iowa ICWA narrowly defines good
cause.
[Section
232B.5(13) ] 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. 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.
N.V.,
744 N.W.2d at 637. The circumstances enumerated in section 232B.5(13) only allow
for a finding of good cause pursuant to an objection under section 232B.5(10)-an
objection by a parent. See
Callender
v. Skiles,
591 N.W.2d 182 (Iowa 1999) (?Clearly, legislative intent is expressed by
omission as well as inclusion.?). Thus, under the Iowa ICWA's narrow definition
of good cause, an objection is allowed by a parent, but not a child.
Consequently, we find that the plain language of the transfer section of the
Iowa ICWA does not allow for the court to deny a request to transfer a case to
tribal court based upon an objection by the children. However, this finding does
not end our analysis as we must next consider the children's constitutional
claims.
B.
Constitutional Claims.
[11][12]
The children argue the Iowa ICWA violates their due process rights under the
United States and Iowa Constitutions. See
U.S. Const. amend. XIV; Iowa Const. art. I, ? 9. Both the United States and Iowa
Constitutions prohibit the states from depriving any person ?life, liberty, or
property, without due process of law.? U.S. Const. amend. XIV; Iowa Const. art.
I, ? 9.FN5
?The Due Process Clauses are understood to include two separate but related
concepts.? State
v. Seering,
701 N.W.2d 655, 662 (Iowa 2005). In this case, both concepts are raised.
Substantive due process ?prevents the government from interfering with rights
implicit in the concept of ordered liberty.? Id.
?Its companion concept, procedural due process, acts as a constraint on
government action that infringes upon an individual's liberty interest.?
Id.
FN5.
The due process clauses of the United States and Iowa Constitutions are nearly
identical in scope, import, and purpose. State
v. Hernandez-Lopez,
639 N.W.2d 226, 237 (Iowa 2002). No party asserts that we should utilize a
different analysis under the Iowa Constitution. Therefore, our discussion of the
children's due-process arguments applies to both their federal and state claims.
See
State
v. Dudley,
766 N.W.2d 606, 624 (Iowa 2009) (using the same analysis to interpret the due
process clauses of the United States and Iowa Constitutions because neither
party suggested the Iowa provision should be interpreted differently than its
federal counterpart).
[13][14][15]
1.
The Children's Constitutional Claim regarding their Ability to Lodge an
Objection.
The children argue that Iowa Code section 232B.5(10) violates their rights to
procedural due process because this code section does not allow them to object
to a transfer motion or participate*489
in a transfer proceeding. ?A person is entitled to procedural due process when
state action threatens to deprive the person of a protected liberty or property
interest.? Seering,
701 N.W.2d at 665. ?Thus any due process inquiry prompts a two-step process.
First, the court must determine if the deprivation implicates a liberty or
property interest. If so, the court must then decide what process is due the
specific interest at issue.? F.K.
v. Iowa Dist. Court,
630 N.W.2d 801, 808 (Iowa 2001).
[16]
The proceedings in this case are child-in-need-of-assistance/
[17][18][19]
Next, we must determine what process is due this particular liberty interest.
F.K.,
630 N.W.2d at 808. The requirements of due process are flexible and in order to
determine what process is due, we balance three factors: (1) the private
interest implicated; (2) the risk of an erroneous deprivation of this interest
by the current procedures used and the probable value, if any, of additional or
substitute procedural safeguards; and (3) the government's interest in the
regulation, including the burdens imposed by additional or different procedures.
F.K.,
630 N.W.2d at 808; Callender,
591 N.W.2d at 189. The minimum requirements of due process are notice and ?the
opportunity to be heard ?at a meaningful time and in a meaningful manner.? ?
Mathews
v. Eldridge,
424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32 (1976); F.K.,
630 N.W.2d at 808; In
re Estate of Adams,
599 N.W.2d 707, 710 (Iowa 1999). ?Due process not only requires a hearing, but a
?hearing appropriate to the nature of the case.? ? In
re Guardianship of B.J.P.,
613 N.W.2d 670, 673 (Iowa 2000).
[20][21]
The children are parties to the transfer proceedings and have a vital interest
in the proceedings. See
Santosky,
455 U.S. at 754 n. 7, 102 S.Ct. at 1395 n. 7, 71 L.Ed.2d at 606-07 at n. 7
(discussing that a child has important liberty interests in parental rights
proceedings and a child and parent's interests may differ). However, as
discussed above, section 232B.5(10) only allows for parents to object to
transfer proceedings and prevents the children from objecting to and
participating in the transfer proceedings. Thus, the children were denied an
opportunity to be heard. See
M.C.,
504 N.W.2d at 601-02 (finding that where an Indian child was denied an
evidentiary hearing to object to a transfer of jurisdiction to a tribe, the
Indian child was not ?provided with adequate notice or an opportunity to be
heard?). The children are entitled to a voice at every stage of the proceedings.
?While providing additional rights to the tribe is the prerogative of the State,
those rights may not come at the expense of the parent's or child's rights.?
N.N.E.,
752 N.W.2d at 9. The statute, by not including the children as parties able to
make an objection, violates their procedural due process rights. Therefore, we
find Iowa Code section 232B.5(10) unconstitutional on procedural due process
grounds.
2.
The Children's Constitutional Claims Regarding the Substance of their
Objection.
The children argue that *490
they should be allowed to object to a transfer of jurisdiction based upon their
best interests. Our supreme court has discussed that under the Iowa ICWA,
parties are not allowed to object to a transfer motion based upon the best
interests of the children. N.V.,
744 N.W.2d at 638.FN6
This rule stems from two sources within the Iowa ICWA. Id.
First, section 232B.5(13) narrowly defines good cause to deny a transfer and
does not contain a best-interests-of-the-children exception. Id.
Second, a child's best interests are defined differently for a non-Indian child
and an Indian child. Id.
A non-Indian child's best interests are defined under Iowa Code chapter 232,
whereas an Indian child's best interests are defined under the Iowa ICWA
as:
FN6.
In N.V.,
there was no constitutional challenge raised to whether parties could challenge
a motion to transfer based upon a child's best interests. N.V.,
744 N.W.2d at 638.
[The]
use of practices in accordance with the federal Indian Child Welfare Act, this
chapter, and other applicable law, that are designed to prevent the Indian
child's voluntary or involuntary out-of-home placement, and whenever such
placement is necessary or ordered, placing the child, to the greatest extent
possible, in a foster home, adoptive placement, or other type of custodial
placement that reflects the unique values of the child's tribal culture and is
best able to assist the child in establishing, developing, and maintaining a
political, cultural, and social relationship with the Indian child's tribe and
tribal community.
Iowa
Code ? 232B.3(2).
The
children attempted to object to the transfer of jurisdiction claiming that a
transfer of jurisdiction was not in their best interests for various reasons.
For example, S.G. and L.R. either complained of or exhibited signs of sexual
abuse by their grandfather, whose home they were to be placed in upon transfer
of jurisdiction to the tribal court, and the children asserted that they were
bonded with one another and the placements advanced by the Tribe would separate
the siblings.FN7
See
In
re T.I.,
707 N.W.2d 826, 833 (S.D.2005) (finding that good cause existed to deny transfer
to tribal court where the state court was the only court with jurisdiction of
all the siblings). However, the children were not allowed to object and were
therefore unable to introduce such evidence. As a result, they assert that their
rights to substantive due process were violated when they were prevented from
objecting to the transfer based upon their best interests.FN8
FN7.
J.L. has been placed with a paternal aunt of S.G. The children do not contest
J.L.'s placement other than the fact that the siblings have an interest in being
placed together.
FN8.
The children also raise an equal protection claim based upon the two classes of
children created under the Iowa ICWA-Indian children and non-Indian children.
See
A.W.,
741 N.W.2d at 807 (acknowledging that the Iowa ICWA creates two classes of
children). However, having found that Iowa Code section 232B.5 is
unconstitutional on due process grounds as applied to the children, we do not
need to address the equal protection claim raised by the children. See
id.
at 813 (determining that because the court found the challenged code section
unconstitutional on equal protection grounds, it was unnecessary to reach other
claims raised).
[22][23]
A substantive due process inquiry involves two steps. Seering,
701 N.W.2d at 662.
The
first requires a determination of ?the nature of the individual right involved.?
If a fundamental right is implicated, we apply strict scrutiny analysis,
*491
which requires a determination of ?whether the government action infringing the
fundamental right is narrowly tailored to serve a compelling government
interest.? If a fundamental right is not implicated, a statute need only survive
a rational basis analysis, which requires us to consider whether there is ?a
reasonable fit between the government interest and the means utilized to advance
that interest.?
Id.
[24][25][26]
?[O]nly fundamental rights and liberties [that] are deeply rooted in this
Nation's history and tradition and implicit in the concept of ordered liberty
qualify for such protection.? Id.
at 664 (citations and quotations omitted); see
Albright
v. Oliver,
510 U.S. 266, 271-72, 114 S.Ct. 807, 812, 127 L.Ed.2d 114, 122 (1994) (?The
protections of substantive due process have for the most part been accorded to
matters relating to marriage, family, procreation, and the right to bodily
integrity.?). In the present case, the proceedings concern the children's
interest in familial association, which has been recognized as a fundamental
liberty interest protected by the Due Process Clause. F.K.,
630 N.W.2d at 808. Additionally, in this particular hearing, the children
attempted to raise best interests arguments based upon their physical safety, as
well as familial association, among other arguments. See
Youngberg
v. Romeo,
457 U.S. 307, 315, 102 S.Ct. 2452, 2457, 73 L.Ed.2d 28, 37 (1982) (discussing
that a right to personal safety constitutes a historic liberty interest
protected substantively by the Due Process Clause). We find that a fundamental
interest is implicated in the present case.
Next,
we must determine whether the statute is ?narrowly tailored to serve a
compelling state interest.? N.N.E.,
752 N.W.2d at 9. Our supreme court has stated:
The
Supreme Court explained why the federal ICWA was enacted: ?Congress was
concerned not solely about the interests of Indian children and families, but
also about the impact on the tribes themselves of the large numbers of Indian
children adopted by non-Indians.?
Id.
?Assuming survival of the tribe is a compelling state interest,? we must
determine whether the Iowa ICWA definition of good cause is narrowly tailored.
See
id.
We find that it is not. Iowa Code section 232B.5 completely prohibits the
children subject to the proceeding from asserting their rights. In this case, it
prohibited the children from raising an argument based upon their best
interests, such as their preference to remain with siblings or their physical or
psychological safety. Furthermore, in any case the court cannot consider the
children's particularized circumstances. Because the narrow good cause
definition prevents the children from asserting any argument, the statute places
the rights of the tribe above the rights of an Indian child.FN9
Therefore, we find that *492
the narrow definition of good cause prohibiting the children from objecting to
the motion to transfer based upon their best interests and introducing evidence
of their best interests violates their substantive due process
rights.
FN9.
As cited above, some states have examined the Federal ICWA and determined that
the best interests of a child were not to be considered in determining whether
to transfer jurisdiction to tribal court. See,
e.g., J.L.P.,
870 P.2d at 1258. However, these cases are not applicable to the Iowa ICWA.
Under the Federal ICWA, a child may object based upon the child's particular
circumstances. See
Guidelines, 44 Fed. Reg. at 67,591; see
also C.W.,
479 N.W.2d at 113 (discussing that under the Federal ICWA good cause to the
contrary includes, but is not limited to, ?cases where (1) the proceeding is at
an advanced stage when the petition to transfer is received, and the petition is
not promptly filed after receipt of notice; (2) the Indian child is over the age
of 12 and objects to the transfer; (3) evidence necessary to decide the case
cannot be adequately presented to the tribal court without undue hardship to the
witnesses and parties; and (4) the parents of an Indian child over the age of
five are not available, and the child has had little or no contact with the
child's tribe or members of the child's tribe?). In this case, S.G. asserts that
she is over the age of five and has had little contact with the tribe and the
motion to transfer came late in the proceedings, which would affect the therapy
she is receiving. Both of these arguments would be considered under the Federal
ICWA. See
Guidelines, 44 Fed. Reg. at 67,591 (stating that good cause to not transfer
jurisdiction to tribal court exists under certain circumstances, including that
the ?proceeding was at an advanced stage when the petition to transfer was
received? and the ?parents of a child over five years of age are not available
and the child has little or no contact with the child's tribe or members of the
child's tribe?). However, the Iowa ICWA creates a blanket rule that none of the
child's circumstances can be considered.
Furthermore,
the purpose of the Iowa ICWA is not undermined by any holding in this opinion.
The stated purpose of the Iowa ICWA is ?to clarify state policies and procedures
regarding implementation of the [Federal ICWA] ... [and] to ensure that the
intent and provisions of the [Federal ICWA] are enforced.? Iowa Code ? 232B.2.
The Federal ICWA was not designed to completely prohibit consideration of a
child's circumstances or rights. In fact, many courts have noted that the
Federal ICWA has a dual purpose-to protect the best interests of a child and to
preserve the Indian culture. See
Maricopa
County Juvenile Action No. A-25525,
136 Ariz. 528, 667 P.2d 228, 234 (Ariz.Ct.App.1983) (?[T]he congressional
declaration of policy behind the ICWA emphasizes that the first interest
Congress seeks to protect is that of Indian children. It is patently clear that
Congress envisioned situations in which the child's best interest may override a
tribal or family interest-the preferences for placement are to be followed
absent good cause to the contrary.' ?); T.R.M.,
525 N.E.2d at 308 (?The purpose of the ICWA, to protect the interests of the
Indian family, is patently clear. However, a paramount interest is the
protection of the best interests of the child.?); C.W.,
479 N.W.2d at 114 (?ICWA does not change the cardinal rule that the best
interests of the child are paramount, although it may alter its focus.?). The
dual purpose of the Federal ICWA is reflected in the dual jurisdictional scheme,
whereby jurisdiction is transferred to the tribal court absent good cause to the
contrary. See
25 U.S.C. ? 1911(b). Under the good cause analysis, a child is allowed to object
to the transfer and participate in the proceedings. See
Guidelines, 44 Fed. Reg. at 67,590. The court considers a child's particularized
circumstances, such as their contact with the tribe or the child's preferences
if over the age of thirteen. See
Guidelines, 44 Fed. Reg. at 67,591. In no part does the Federal ICWA suggest
children's rights should be eliminated in favor of a tribe's
rights.
[27]
Moreover, in no part does the Iowa ICWA suggest children's rights should be
eliminated in favor of a tribe's rights. The Iowa ICWA's definition of an Indian
child's best interests focuses on maintaining the Indian culture. Iowa Code ?
232B.3(2). However, nothing in Iowa Code chapter 232B places maintaining the
Indian culture above a child's rights or safety. See,
e.g.,
Iowa Code ?? 232B.6 (providing that the chapter shall not be construed to
prevent the emergency removal in order to prevent imminent physical damage or
harm to the child); 232B.9(2) (providing that the placement of an Indian child
shall be in a setting where *493
the child's special needs are met); 232B.9(6) (stated the placement preference
of an Indian child may be considered).
We
find that Iowa Code section 232B.5(10) and (13) that prevents a child subject to
the proceedings from objecting to a motion to transfer is unconstitutional.
Additionally, we find that Iowa Code section 232B.5(13) defining good cause to
deny a motion to transfer is unconstitutional. Therefore, we reverse and remand
for a hearing on the transfer motion, during which the children shall be allowed
to object and the children shall be allowed to introduce evidence of their best
interests.
REVERSED
AND REMANDED.