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(Cite
as: 498 N.W.2d 417)
Court
of Appeals of Iowa.
In
the Interest of J.W., B.W., T.W., K.W. and R.W., Minor
Children.
D.H.
and G.W., Objectors, Appellants.
No.
92-1079.
Feb.
2, 1993.
It
would be irresponsible for Court of Appeals not to assure
that provisions of Indian Child Welfare Act were followed and
terminated parental rights in anticipation of adoption, even if issue
was not preserved for Appellate review, because, if order were
not in compliance with Act, state could offer prospective adoptive
parents no assurance that termination and subsequent adoption could not
be invalidated. Indian Child Welfare Act of 1978, § 104,
as amended, 25 U.S.C.A. § 1914.
Indian
Child Welfare Act is jurisdictional and failure to give adequate
notice to tribes divests state court of jurisdiction to terminate
parental rights. Indian Child Welfare Act of 1978, § 102(a),
as amended, 25 U.S.C.A. § 1912(a).
Notice
to Indian tribe was not necessary for emergency removal of
children after they were left with a child care provider
or when subsequent emergency orders were entered. Indian Child Welfare
Act of 1978, §§ 102(a),
112, as
amended,
25 U.S.C.A. §§ 1912(a),
1922.
Filing
of certified mail receipt as to notice to Indian tribe
of termination of parental rights hearing was not acceptable proof
of service of notice by mail; no copy of what
was mailed was attached, no affidavit was filed verifying what
was mailed. Indian Child Welfare Act of 1978, §§ 102(a),
112, as amended, 25 U.S.C.A. §§ 1912(a),
1922.
Notice
of petition to terminate parental rights allegedly mailed to Omaha
Tribe was insufficient to comply with requirements of Indian Child
Welfare Act, absent any showing that Tribe was advised of
its right to intervene. Indian Child Welfare Act of 1978,
§§ 102(a),
112, as amended, 25 U.S.C.A. §§ 1912(a),
1922.
Provisions
of Indian Child Welfare Act are to be strictly construed
and applied. Indian Child Welfare Act of 1978, § 2
et seq., as amended, 25 U.S.C.A. § 1901
et seq.
State
should have given notice of termination of parental rights proceeding
to both
Indian tribes, under the Indian Child Welfare Act, where there
was evidence that children were eligible for membership in both
tribes and had not been accepted as members of either
tribe. Indian Child Welfare Act of 1978, §§ 4(5),
102(a), as amended, 25 U.S.C.A. §§ 1903(5),
1912(a).
Children
ultimately can have but one tribe for purposes of the
Indian Child Welfare Act. Indian Child Welfare Act of 1978,
§ 4(5),
as amended, 25 U.S.C.A. § 1903(5).
Tribes
are arbitrators of their own membership, for purpose of Indian
Child Welfare Act. Indian Child Welfare Act of 1978, § 4(5),
as amended, 25 U.S.C.A. § 1903(5).
*418
Teresa A. O'Brien of Forker & Kanter, Sioux City, for
appellant G.W.
Bradford F. Kollars, Sioux City, for appellant D.H.
Debra Y. Lulf, Sioux City, guardian ad litem for minor
children.
Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Sp. Asst.
Atty. Gen., Judy Sheirbon, Asst. Atty. Gen., and Marleen Loftus,
Asst. County Atty., for appellee.
Heard by DONIELSON, P.J., and SACKETT, J., and KEEFE, Senior
Judge.
[FN*]
FN*
Senior Judge from the 1st Judicial District serving on this
court by order of the Iowa Supreme Court.
SACKETT, Judge.
A biological mother with Native American blood, Gayle Wake [FN1]
appeals a trial court order terminating her parental rights to
her five children, born in 1982, 1986, 1988, 1990, and
1991. Dennis Howard,
[FN2] the biological father of Katherine Wake-Howard [FN3]
born in 1990, and Raymond Wake-Howard [FN4]
born in 1991, joins in the appeal. The rights of
the fathers of the three older children are not at
issue in this appeal.
FN1.
G.W. are the biological mother's initials. Gayle Wake is not
her given name.
FN2.
D.H. are the initials of the biological father of two
of the children. Dennis Howard is not his given name.
FN3.
K.M.W.-H. is the child's initials. Katherine Wake-Howard is not her
given name.
FN4.
R.W.-H. are the child's initials. Raymond Wake-Howard is not his
given name.
Gayle and Dennis contend (1) the notice to the Indian
tribes was not in compliance with the Indian Child Welfare
Act, (2) the facts did not establish by clear and
convincing evidence, or beyond a reasonable doubt, that continued custody
of the children by Gayle and Dennis would likely result
in their serious emotional or physical damage pursuant to the
Indian Child Welfare Act, (3) the facts did not establish
beyond a reasonable doubt that they had severe and chronic
substance abuse problems which presented a danger to themselves and
others as evidenced by prior acts, and (4) the trial
court erred in denying their
motion for a new trial. We find there has not
been compliance with the Indian Child Welfare Act. We remand
to the trial court with directions to comply with the
Indian Child Welfare Act. We do not retain jurisdiction.
In 1978, Congress, recognizing an alarmingly high percentage of Indian
families are broken up by removal of their children who
are then placed in non-Indian foster and adoptive homes and
institutions, determined it be the policy of the Nations to
*419
establish minimum federal standards for removal of Indian children from
their families. See
25 U.S.C.A. §§ 1901,
1902 (West 1983). The Act specifies a number of requirements
that need to be complied with before removing Indian children
from their Indian family and/or terminating parental rights. See
25 U.S.C.A. §§ 1911,
1912, 1913 (West 1983). The Iowa statutory and case law
are modified in this termination proceeding by the provisions of
the Indian Child Welfare Act of 1978, as amended. See
In re R.L.F.,
437 N.W.2d 599, 601 (Iowa App.1989).
The evidence is undisputed that the mother is both a
member of the Omaha Tribe and one-half Santee, thereby eligible
for membership in the Santee Tribe.
Section 1903(4)(b) provides:
"Indian
child" means any unmarried person who is under age eighteen
and is either ... (b) is eligible for membership in
an Indian tribe and is the biological child of a
member of an Indian tribe;
25 U.S.C.A. § 1903(4)(b)
(West 1983).
These children are unmarried and not yet eighteen years old.
They are eligible for membership in two Indian tribes and
are the biological children of a tribe member. They are
Indian children as defined by the Act. The provisions of
the Indian Child Welfare Act clearly applies to this case.
The parents contend the proceedings in the juvenile court resulting
in termination of their parental rights did not follow the
dictates of the Indian Child Welfare Act. The State advances
this argument was not preserved for appellate review. We find
the issue was preserved.
We also find it would be irresponsible
for this court not to assure the provisions of the Act were followed.
For if the Iowa proceedings fail to comply with the Indian
Child Welfare Act, there is a serious risk subsequent proceedings may
be brought for invalidation of the termination order under section 1914
which provides:
Any
Indian child who is the subject of 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 sections
1911, 1912, and 1913 of this title.
25 U.S.C.A. § 1914
(West 1983).
It appears to be the intent of these proceedings to
place these children for adoption.
If we were to affirm a termination order not in
compliance with the Act, the State could offer prospective adoptive
parents no assurance this termination and a subsequent adoption could
not be invalidated. See
In re H.D.,
11 Kan.App.2d 531, 538, 729 P.2d 1234, 1241 (1986) (violation
of Indian Child Welfare Act notice cause for invalidation of
termination).
Furthermore, there is authority
supporting a finding the Act is jurisdictional and failure to give adequate
notice to the tribes divests a state court of jurisdiction. The
South Dakota Supreme Court in addressing the issue of compliance with
the Act on its own motion said:
The
Indian Child Welfare Act is primarily a jurisdictional statute, Act
of Nov. 8, 1978, Pub.L. No. 95-608, 1978 U.S.C.C.A.N. (92
Stat.) 7530, 7541; J. McCahey, Child
Custody & Visitation Law and Practice,
§ 29.03(4)
(1987); see
In re N.A.H.,
418 N.W.2d 310, 311 (S.D.1988); and this court must examine
jurisdictional questions whether presented by the parties or not. Lehr
v. Dep't of Labor of S.D.,
391 N.W.2d 205, 206 (S.D.1986); Long
v. Knight Const. Co.,
262 N.W.2d 207, 209 (S.D.1978). Therefore, even though mother did
not raise the notice question on appeal, we conclude that
inadequate notice to the tribes divests the trial court of
jurisdiction to terminate parental rights to these Indian children; consequently,
this court has no jurisdiction to address the merits of
the case....
In
re N.A.H.,
418 N.W.2d 310, 311 (S.D.1988).
As one commentator on the Indian Child Welfare Act explains:
The
right to intervene also is virtually meaningless unless notice of
the proceedings *420
is prompt and reliable and unless placements that have been
made without adequate notice can be reversed. The Act expressly
provides for reversal. If denied notice or the opportunity to
intervene, the child's parent or tribe may petition for new
proceedings.
R. Bash, The
Indian Child Welfare Act of 1978: A Critical Analysis,
31 Hastings L.J. 1287, 1314 (1980); In
re S.Z.,
325 N.W.2d 53, 57 (S.D.1982).
We next must determine whether these proceedings are in compliance
with the provisions of the Indian Child Welfare Act. The
State appears to recognize the proceedings were not in technical
compliance. The State argues only that the proceedings are in
substantial compliance.
The parents contend the Omaha and Santee tribes were not
notified in the manner and method required by the Act.
As to notice, the Act provides:
In
an involuntary proceeding in a State court, where the court
knows or has reason to know that an Indian child
is involved, the party seeking the foster care placement of,
or termination of parental rights to, an Indian child shall
notify the parent or Indian custodian and the Indian child's
tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of intervention. If the
identity or location of the parent or Indian custodian and
the tribe cannot be determined, such notice shall be given
to
the Secretary in like manner, who shall have fifteen days
after receipt to provide the requisite notice to the parent
or Indian custodian and the tribe. No foster care placement
or termination of parental rights proceeding shall be held until
at least ten days after receipt of notice by the
parent or Indian custodian and the tribe or the Secretary:
Provided,
That the parent or Indian custodian or the tribe shall,
upon request, be granted up to twenty additional days to
prepare for such proceeding.
25 U.S.C.A. § 1912(a)
(West 1983).
To address this issue, we need to review a history
of the child in need of assistance proceedings.
On June 16, 1989, Gayle left two of her children
with a child care provider. Gayle said she would return
for the children on June 17. On June 17, Gayle
contacted the provider and said she would be late. Gayle
did not return on June 18, the police were contacted,
and the two children were placed in emergency foster care.
According to the notes of a child protective services worker,
a judge of the Omaha tribal court was called on
June 20, 1989. A temporary removal hearing was held on
August 17, 1989, and Gayle's three children were placed in
foster care.
On September 18, 1989, at a dispositional hearing, the trial
court found temporary care, custody, and control of the minor
children should be transferred to the Iowa Department of Human
Services for placement in foster care.
On June 27, 1990, a hearing for emergency removal of
Gayle's newborn child was held. The child was placed in
foster care.
On September 19, 1990, a dispositional review hearing was held
concerning the three older children, and it was consolidated with
a dispositional hearing concerning the baby. The trial court ordered
the care, custody and control of the three older children
remain with the Department of Human Services for continued placement
in foster care and custody and control of the baby
be transferred to the Iowa Department of Human Services for
placement in foster care.
On May 23, 1991, another emergency removal order was filed,
following the birth of a fifth child. A hearing was
held on June 3, 1991, and he was also placed
in foster care because of the mother's chemical abuse and
the fact that four previous children had been removed from
her custody.
The State acknowledges this was the first time an Indian
tribe was notified in writing. In this case there is
a filing captioned, "Proof of Mailing to Omaha Tribe for
Emergency Removal Petition on R.W.H." Attached to the filing is
a post *421
office receipt showing an article mailed by registered mail to
the tribe and signed for by an agent on June
4, 1991. (June 4, 1991, was a day after the
hearing on the petition for temporary removal.) There is no
affidavit by a person identifying who made the mailing to
the tribe and/or
showing what was mailed to the tribe.
On October 7, 1991, the trial court held the Indian
Child Welfare Act did apply to Gayle's children.
On November 18, 1991, a petition for termination of parental
rights was filed on behalf of the five children. The
petition alleged the children are Indian children within the meaning
of the Indian Child Welfare Act. In this case there
is a filing captioned, "Proof of Mailing For Termination of
Parental Rights and Indian Notice." Attached to the filing is
a post office receipt showing an article mailed to the
Omaha Tribe by registered mail from the assistant county attorney
in Sioux City that was signed for by an agent
of the tribe on November 20, 1991. There is no
affidavit by a person identifying who made the mailing to
the tribe and showing what was mailed to the tribe.
The Omaha Tribe did not appear.
A hearing was held in February 1992, and the trial
court terminated the parental rights of Gayle as to all
her children, and the parental rights of Dennis as to
Katherine and Raymond. The trial court also terminated the parental
rights of the natural fathers of the other children.
Clearly, the letter and the spirit of the Indian Child
Welfare Act were not followed.
The next question is whether the State is correct in
arguing there was substantial compliance.
The State argues notice was not
necessary for emergency removal. We agree. The
Indian Child Welfare Act, in applicable part, also provides:
Nothing
in this subchapter shall be construed to prevent the emergency
removal of an Indian child who is a resident of
or is domiciled on a reservation, but temporarily located off
the reservation, from his parent or Indian custodian or the
emergency placement of such child in a foster home or
institution, under applicable State law, in order to prevent imminent
physical damage or harm to the child. The State authority,
official, or agency involved shall insure that the emergency removal
or placement terminates immediately when such removal or placement is
no longer necessary to prevent imminent physical damage or harm
to the child and shall expeditiously initiate a child custody
proceeding subject to the provisions of this subchapter, transfer the
child to the jurisdiction of the appropriate Indian tribe, or
restore the child to the parent or Indian custodian, as
may be appropriate.
25 U.S.C.A. § 1922
(West 1983); see
also D.E.D. v. State,
704 P.2d 774, 779 (Alaska 1985).
It was not necessary to comply with the notice provisions
of the Act when on June 18, 1989, two children
were placed in emergency care or on June 27, 1990
and May 23, 1991, when emergency orders were entered. However,
these were the only proceedings exonerated from notice under section
1922.
The
State contends it was in substantial compliance with the Act because
it notified the Omaha Tribe of an emergency removal and the termination
hearing. There are several flaws in the State's argument.
First, there is no acceptable proof of service of a notice
by mail. All that was filed was a certified mail receipt.
No copy of what was mailed was attached. No affidavit
was filed verifying what was mailed.
Even if the termination petition
were sent to the Omaha Tribe (and we cannot ascertain it was), there is
no showing the tribe was advised of its right to intervene as required
by section 1912(a).
The provisions of Indian Child
Welfare Act are to be strictly construed and applied. See
Mississippi Choctaw Indians v. Holyfield,
490 U.S. 30, 50-51, 109 S.Ct. 1597, 1609, 104 L.Ed.2d 29, 47-48 (1989).
*422
The Omaha Tribe should have been notified in accordance with
section 1912(a) of proceedings resulting in the children being placed
in foster care, except the emergency removal placements. The Omaha
Tribe should have been notified of the termination hearing in
accordance with the dictates of section 1912(a). They were not.
The Santee Tribe has been totally
ignored in these proceedings.
The State argues notice to the Santee Tribe is not
necessary. The State contends the Santee Tribe is not entitled
to notice because the Indian Child Welfare Act provides only
one tribe can be a child's tribe. The Indian Child
Welfare Act, in applicable part, provides:
"Indian
child's tribe" means (a) the Indian tribe in which an
Indian child is a member or eligible for membership, or
(b) in the case of an Indian child who is
a member of or eligible for membership in more than
one tribe, the Indian tribe with which the Indian child
has the more significant contacts.
25 U.S.C.A. § 1903(5)
(West 1983).
We agree with the State, the children
ultimately can have but one tribe. However, there is evidence
the children are eligible for membership in two tribes and have not been
accepted as members of either tribe. They could be accepted
for membership in either tribe. Notice should be given to
both tribes. The tribes are the arbitrators of their own membership.
See In re
M.C.P., 153 Vt. 275,
287, 571 A.2d 627, 634 (1989).
We reverse the order terminating parental rights and remand for
a new hearing after proper notice is given. We do
not retain jurisdiction. The State is directed to the Bureau
of Indian Affairs guidelines set forth at 44 Fed.Reg. 67588
(1979). See
N.A.H.,
418 N.W.2d at 311.
REVERSED
AND REMANDED.
498 N.W.2d 417
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