In re Interest of T.F.

• Decision Date: 11 March 2022
• Docket Number: 21-0243
• Citation: 972 N.W.2d 1
• Parties: In the INTEREST OF T.F. and T.F., Minor Children. T.F., Father, Appellant, The Omaha Tribe of Nebraska & Iowa, Intervenor–Appellant.
• Court: Iowa Supreme Court

972 N.W.2d 1

In the INTEREST OF T.F. and T.F., MinorChildren.

T.F., Father, Appellant,

The Omaha Tribe of Nebraska & Iowa, Intervenor–Appellant.

No. 21-0243

Supreme Court of Iowa.

Submitted December 14, 2021

Filed March 11, 2022

Jonathan M. Causey(argued) of Causey & Ye Law, P.L.L.C., Des Moines, for appellantFather.

Alexis Zendejas(argued), Macy, Nebraska, for intervenor–appellant the Omaha Tribe of Nebraska & Iowa.

Thomas J. Miller, Attorney General, and Mary A. Triick(argued), Assistant Attorney General, for appellee State.

Cathleen J. Siebrecht(argued) of Siebrecht Law Firm, Des Moines, and Erin E. Mayfield(until withdrawal) of the Youth Law Center, Des Moines, attorney and guardian ad litem for minor children.

Appel, J., delivered the opinion of the court, in which Christensen, C.J., and Mansfield and Oxley, JJ., joined.McDermott, J., filed an opinion concurring in part and dissenting in part, in which Waterman and McDonald, JJ., joined.

APPEL, Justice.

This case involves an appeal by a parent and the Omaha Tribe of Nebraska & Iowa (Tribe) from an order terminating parental rights with respect to two "Indian"¹ children under the Indian Child Welfare Act, 25 U.S.C. § 1903(4)(ICWA), and Iowa Code chapter 232B(2021)(Iowa ICWA).The State commenced child-in-need-of-assistance (CINA) proceedings involving the older child in November 2018 and the younger child on February 19, 2019.The Tribe filed a petition for intervention in the state court proceedings, which was granted on February 20.After the State filed a petition to terminate parental rights in January 2020, the Tribe filed a motion to transfer the case to tribal court.

The juvenile court held a two-day hearing in July 2020.In September, the juvenile court denied the motion to transfer, reasoning, among other things, that "good cause" was present to deny the transfer as it would not be in the best interests of the children.After notice and hearing, the juvenile court terminated the parental rights of both parents in February 2021.

The Tribe and Father appealed.They argue, among other things, that the motion to transfer was improperly denied by the juvenile court under the state and federal ICWA statutes.They argue that the question of whether there is good cause to deny transfer to tribal courts under both statutes focuses narrowly on forum-non-conveniens-type considerations.Father and the Tribe further argue that the juvenile court erred in considering the larger substantive issue of "the best interests of the child" in the transfer calculus.

For the reasons expressed below, we conclude that the juvenile court erred in considering the best interests of the children on the narrow question of transfer to the tribal court.We reverse the juvenile court and remand the case for transfer to the tribal court.

I.Procedural and Factual Background.

A.Procedural Background.Both T.F. (older T.F.) and T.F. (younger T.F.) are "Indian child[ren]" under 25 U.S.C. § 1903(4).The two children were removed at different times from their parents.Both Father and Mother are enrolled members in the Tribe.Shortly after the younger T.F. was removed, the Tribe filed a motion to intervene in the CINA proceedings in the state court.The motion was granted on February 20.The two children were adjudicated as CINA on March 31 and April 1.Disposition occurred for both children on April 24 with a review hearing on July 18.

A permanency order was entered on January 20, 2020.Shortly thereafter, the State filed its petition for termination of parental rights on January 23.The Tribe filed a motion to transfer the matter to the Omaha Tribe Juvenile Court on January 30.On February 25, the Tribe filed a motion to intervene in the termination-of-parental-rights proceedings and a petition to transfer the case to tribal court.

B.Motion to Transfer.The juvenile court held a hearing on the motion to transfer via video conference on June 19 and July 2.At the hearing, the Tribe called Mosiah Harlan as a Qualified Expert Witness (QEW).He testified that tribal customs and traditions do not align with termination of parental rights.He further testified that the Tribe would be willing to work with the current foster placement if the foster parents worked with the Tribe.

The foster mother testified at the transfer hearing.She testified generally that the children were doing well.She stated that the foster family had sought to familiarize themselves with the heritage of the children including visiting the Sioux City reservation, reading tribal books, and visiting a museum in Washington D.C.According to the foster mother, the foster family would welcome help from the Tribe regarding preserving the children's heritage.

Father and Mother also testified.Father was incarcerated with a release date of February 2021.Mother testified that she had recently been committed for psychiatric care and was now in a treatment center.She testified she wanted the transfer to occur to give her more time to have the children returned to her custody.

The State argued that transfer should be denied because of the lack of responsibility by Mother and Father, the efforts of the foster parents to promote the children's Native American heritage, and the good relationship between the current professionals and the children.The guardian ad litem for the children joined the State in resisting the transfer to tribal court.

On September 20, the juvenile court denied the motion to transfer.The juvenile court canvassed the history of the file in detail.The history generally revealed a lengthy drug and mental health history of Mother, drug abuse and alcoholism of Father, and criminal history of both, including domestic violence by Father.The juvenile court canvassed unsuccessful efforts to place the children with the great grandmother and the great aunt, both of whom also belong to the Tribe.The juvenile court noted that the court appointed special advocate for the children recommended that the parental rights of the parents be terminated and the children continue living with the foster parents.

In considering the transfer question, the juvenile court began its analysis by canvassing provisions of the Iowa ICWA and related caselaw.Citing an unpublished court of appeals decision, the juvenile court noted that the Iowa ICWA had a "dual purpose" of protecting the best interests of the child and preserving the Native American culture.SeeIn re E.D. , No. 16-0829, 2016 WL 4379382, at *3(Iowa Ct. App.Aug. 17, 2016)(unpublished table decision)(citingIn re D.S. , 806 N.W.2d 458, 465(Iowa Ct. App.2011) ).

The juvenile court proceeded to consider provisions of the Iowa ICWA related to the transfer of matters to tribal court.SeeIowa Code § 232B.5(10)–(11), (15).The juvenile court noted that under these provisions of the Iowa ICWA, the children were not permitted to object to transfer.Yet, the juvenile court noted that in In re J.L. , 779 N.W.2d 481, 489(Iowa Ct. App.2009), the court of appeals held that the failure of the Iowa ICWA to permit children to challenge transfer to tribal court violated the children's procedural due process rights.In addition, the juvenile court noted that the In re J.L. court further concluded that by narrowly defining "good cause," the Iowa ICWA violated the substantive due process rights of the children by not permitting them to argue that transfer of the matter was not in the children's best interest.Id. at 491–92.

The juvenile court found that good cause was properly raised by the children's guardian ad litem and by the county attorney.According to the juvenile court, once the good cause issue was raised, the burden shifted to the moving party to support transfer of jurisdiction to the tribal court.In considering good cause, the juvenile court noted, but did not discuss, a federal regulation which provides that the court may not consider various reasons as "good cause" for resisting transfer, including "[w]hether transfer could affect the placement of the child" and "any negative perception of Tribal or BIA social services or judicial systems."25 C.F.R. § 23.118(c)(3), (5)(2021).

Based on the record, the juvenile court found that it was in the children's best interests to deny transfer for several reasons.First, the juvenile court found that services provided to the children and parents pursuant to the state court proceedings were excellent.The court noted that the older child suffered repeated trauma due to the parents’ substance abuse, instability, and domestic violence.Transfer of the case to tribal court would require the involvement of a new set of professionals, something that the juvenile court found would be cruel in light of the children's difficulty adjusting to strangers.

Second, the juvenile court concluded that the state court was best situated to litigate custody of the children and parental rights of the parents.The juvenile court noted that the proceedings in the state court were at an "advanced stage" with a permanency order issued and that the petition to terminate parental rights had been on file for over five months.

Finally, the juvenile court recognized that while the children's placement was not in a Native American home, the foster parents have sought to continue the children's involvement with the Tribe and other Native American tribal cultures.As a result, the juvenile court believed that keeping the case in state court would not prevent the children from maintaining the vital relationship with the Tribe and would not "interfere with the policy that the best interest of an Indian child require that the child be placed in a foster home or adoptive home that reflects the unique values of Indian culture."

C.Juvenile Court Termination of Parental Rights.The juvenile court held a termination hearing on December 9 and 10, 2020.Father attended from prison, while Mother did not attend.A number of witnesses testified at the termination hearing.Dr....