In re Interest of Z.K., 21-0324

CourtUnited States State Supreme Court of Iowa
Writing for the CourtAPPEL, Justice.
Citation973 N.W.2d 27
Parties In the INTEREST OF Z.K., Minor Child. J.K., Mother, and Z.K., Father, Appellants.
Docket Number21-0324
Decision Date08 April 2022

973 N.W.2d 27

In the INTEREST OF Z.K., Minor Child.

J.K., Mother, and Z.K., Father, Appellants.

No. 21-0324

Supreme Court of Iowa.

Submitted December 14, 2021
Filed April 8, 2022


Dean A. Fankhauser (argued) of Vriezslaar, Tigges, Edgington, Bottaro, Boden & Lessmann, L.L.P., Sioux City, for appellant father.

Teresa A. O'Brien, Sioux City, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena (argued), Assistant Attorney General, for appellee State.

Michelle M. Hynes (argued) of Juvenile Law Center, Sioux City, attorney and guardian ad litem for minor child.

Appel, J., delivered the opinion of the court, in which all justices joined.

APPEL, Justice.

973 N.W.2d 28

This case involves a proceeding where the State seeks to terminate parental rights over a child, Z.K. The main fighting issue is whether Z.K. was an "Indian child"1 under the Indian Child Welfare Act (ICWA). If Z.K. was, different substantive standards apply in a termination proceeding. See 25 U.S.C. § 1912(e) (mandating that the state prove by clear and convincing evidence that continued custody of the child by the parent or "Indian custodian" is likely to result in serious emotional or physical damage to the child).

The juvenile court held that Z.K. was not an "Indian child" under ICWA and that, as a result, ICWA did not apply to the proceedings. The juvenile court proceeded to terminate parental rights under the provisions of Iowa Code chapter 232.

Mother and Father appealed. We transferred the case to the court of appeals. The court of appeals affirmed. Only Father filed a timely application for further review, which we granted.

In Father's appellate brief, the sole issue presented is whether the juvenile court erred in determining that Z.K. was not an "Indian child" under ICWA. On further review, we consider only the ICWA issue. To the extent other issues were raised and preserved by Father, the opinion of the court of appeals stands as the final decision. See State v. Doggett , 687 N.W.2d 97, 99 (Iowa 2004).

I. Factual and Procedural Background.

A. Original CINA Proceeding. The case is complicated by confusion over Z.K.’s parentage. Z.K. had been in the care of his grandparents even though they did not have legal custody or guardianship over the child. On September 19, 2019, the State brought a child-in-need-of-assistance petition after the Iowa Department of Social Services received reports of domestic violence in the presence of Z.K. and other minor children while residing with their maternal grandparents. Based on the information

973 N.W.2d 29

provided at that time, the petition alleged that B.K. and E. were the parents of Z.K.

Contemporaneous with the filing of the original petition, the State filed a motion to determine the applicability of ICWA. The State also sent notices of the pending litigation to the Standing Rock Sioux Tribe in Fort Yates, North Dakota, and the Oglala Sioux Tribe in Pine Ridge, South Dakota.

On October 2, the Standing Rock Sioux Tribe responded that Z.K. was not eligible to be enrolled as a member. On October 21, the Oglala Sioux Tribe sent a letter stating that Z.K. "is not a member, or eligible to be enrolled as a member of the OST [Oglala Sioux Tribe]."

B. Amended CINA Petition. After the filing of the original petition, the State learned that the parents of Z.K. were in fact J.K. and Z.D.K. As a result, the State, on October 31, amended the motions to assert the correct parentage of Z.K. and sent the amended notices to the tribes.

On November 26, the Standing Rock Sioux Tribe responded to the amended petition and notice by stating again that Z.K. was not eligible for enrollment as a member. The Oglala Sioux Tribe, however, did not provide a written response to the amended petition or the second notice of the motion to determine the applicability of the ICWA statutes.

On January 9, 2020, DNA tests confirmed J.K. and Z.D.K. as the biological parents of Z.K.

C. Further Proceedings Before the Juvenile Court.

1. Introduction. The juvenile court adjudicated Z.K. a child in need of assistance on February 2, 2020.

On February 7, the State again filed a motion to determine the applicability of ICWA. The State emphasized that there was no proof that the federal ICWA applied to Z.K. See 25 U.S.C. § 1903(4). The State asked for a hearing on the matter and a determination that ICWA was inapplicable.

Also on February 7, the State filed a petition to terminate parental rights.

2. First hearing on applicability of ICWA statutes. On October 14, the juvenile court held a hearing on the applicability of ICWA. The State urged that based on the written responses of the Standing Rock Sioux Tribe and the Oglala Sioux Tribe, the ICWA statutes did not apply.

Further, with respect to the Standing Rock Sioux Tribe, the State argued that Z.K. only has a 1/8 blood quantum. As a result, the State asserted that Z.K. did not qualify for membership in the tribe which requires a 1/4 blood quantum.

With respect to the Oglala Sioux Tribe, the State observed that both the maternal grandmother and Mother were not enrolled members of the tribe. The State recognized that the maternal grandmother had sent an enrollment application to the Oglala Sioux Tribe but asserted that the application was otherwise incomplete and there was no evidence that the grandmother successfully disenrolled from the Standing Rock Sioux Tribe. Under the Oglala Sioux Tribe Constitution, in order for Mother to qualify as a member, one of her parents must be a member. But because the maternal grandmother was not a member, Mother was not eligible. And, domino-like, because Mother was not a member, Z.K. could not be a member.

After hearing arguments, the juvenile court entered a brief order holding that ICWA did not apply to the proceedings.

3. Motion to stay proceedings and reopen ICWA record. The parents were dissatisfied with the juvenile court's ICWA

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ruling and on October 15, they filed a motion to stay proceedings and reopen the record on ICWA. Mother's counsel asserted that she had spoken with Judy Morrison, a Native American Consultant with the Iowa Department of Corrections and the Iowa Department of Human Services. According to Mother's counsel, Morrison determined that the grandmother of Z.K. was a member of a "Native American Tribe" and believes that her grandchildren "have the blood quantum to be eligible for enrollment." The motion indicated that Morrison would be available to testify by telephone.

On October 20, the State filed a resistance to the parents’ motion to stay proceedings and reopen the record on the ICWA issues. The State argued that Morrison was not an expert and that her testimony would not be admissible. Further, the State suggested that the mere fact that Z.K.’s grandmother may have been a Native American was insufficient to establish that Z.K. was an "Indian child" under the applicable ICWA statutes.

The State also repeated its argument that while Z.K.’s maternal grandmother may have begun the process of relinquishing her Standing Rock Sioux tribal membership to become a member of the Oglala Sioux Tribe, there was no evidence that such a change was accomplished. Consequently, the State argued, until grandmother's attempt was successful, Z.K. was not an "Indian child" under ICWA.

Finally, the State noted that numerous notices had been sent to the tribes regarding the possibility that Mother was a tribal member. In response, both tribes indicated that Z.K. was not eligible for membership in their tribe.

4. Hearing on pending motion and the State's petition. The juvenile court held a hearing on the parents’ motion to stay and reopen the ICWA hearing and the State's petition to terminate parental rights on November 18 and December 3.

The juvenile court hearing began with consideration of whether the Oglala Sioux Tribe should be permitted to intervene in the proceeding. Counsel for Mother presented as an exhibit a motion to intervene by the Oglala Sioux Tribe. The document had been provided to her the previous day by David Michael Red Cloud, the Oglala Sioux ICWA director. The State resisted intervention by the Oglala tribe and the introduction of the motion as an exhibit, but before the juvenile court could rule on the question, Red Cloud joined the proceeding and was examined as a witness.

Red Cloud testified that he first met Mother the day before the hearing. He testified that he had consulted with his supervisor and that it was absolutely the intention of the tribe to intervene in the proceeding. When the State pointed out that the motion to intervene contained a reference to a stranger who was not a party to the proceedings, Red Cloud apologized for the error.

Red Cloud testified that because of staff difficulties and COVID-19, there were two years’ worth of cases that were not followed up on by the Oglala Sioux Tribe. He testified that the Bureau of Indian Affairs (BIA), which ordinarily signed off on tribal enrollments, had not done enrollments since March of 2020. When...

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2 practice notes
  • In re S.D., Minor Child, 22-1141
    • United States
    • Court of Appeals of Iowa
    • August 31, 2022
    ...juvenile court terminated their parental rights. Both parents appeal. We review orders terminating parental rights de novo. In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022). Such review follows a three-step process that involves determining if statutory grounds for termination have been establishe......
  • In re L.N., 22-0702
    • United States
    • Court of Appeals of Iowa
    • August 31, 2022
    ...be applied to avoid termination. III. Standard of Review Appellate review of orders terminating parental rights is de novo. In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022). This permits us to review the facts as well as the law to adjudicate the dispute anew. Id. In doing so, we give weight to th......
2 cases
  • In re S.D., Minor Child, 22-1141
    • United States
    • Court of Appeals of Iowa
    • August 31, 2022
    ...juvenile court terminated their parental rights. Both parents appeal. We review orders terminating parental rights de novo. In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022). Such review follows a three-step process that involves determining if statutory grounds for termination have been establishe......
  • In re L.N., 22-0702
    • United States
    • Court of Appeals of Iowa
    • August 31, 2022
    ...be applied to avoid termination. III. Standard of Review Appellate review of orders terminating parental rights is de novo. In re Z.K., 973 N.W.2d 27, 32 (Iowa 2022). This permits us to review the facts as well as the law to adjudicate the dispute anew. Id. In doing so, we give weight to th......

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