In re JL

• Decision Date: 25 November 2009
• Docket Number: No. 09-0945.,09-0945.
• Citation: 779 NW 2d 481
• Parties: In the Interest of J.L., L.R., and S.G., Minor Children, J.L., L.R., and S.G., Minor Children, Appellants.
• Court: Iowa Court of Appeals

779 N.W.2d 481

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.

Court of Appeals of Iowa.

November 25, 2009.

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 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/guardian ad litem, could not object to the transfer of jurisdiction to a tribal court pursuant to Iowa Code section 232B.5 (2009). Because we find section 232B.5 violates the children's due process rights under the United States and Iowa Constitutions, we reverse and remand for further proceedings.

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.¹ In March 2009, the Tribe filed motions to transfer jurisdiction. Subsequently, the children's attorney/guardian ad litem² filed a resistance to the Tribe's motion to transfer that (1) objected to the motion to transfer asserting that a transfer of jurisdiction was not in the best interests of the children, and (2) argued that if the court determined the children could not object or the children could not object based upon their best interests, the Iowa Indian Child Welfare Act was unconstitutional because it violated the children's rights to due process and equal protection guaranteed under the United States and Iowa constitutions. On May 27, 2009, the district court issued its ruling. It found that pursuant to Iowa Code section 232B.5(10), the children's attorney/guardian ad litem could not object to the transfer.³ Therefore, the district court did not consider the merits of the children's objection and ordered the proceedings concerning the children be transferred to the Tribe. Furthermore, the district court did not address the children's arguments that the Iowa Indian Child Welfare Act was unconstitutional. The children filed a motion to amend or enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2), in part requesting the district court rule on their constitutional arguments. On June 16, 2009,⁴ the district court ruled on the children's motion but did not address the children's constitutional arguments, stating: "The court, having considered the motion, finds that the previous order of the court is appropriate and will not be expanded to include a finding that portions of the Indian Child Welfare Act are unconstitutional."

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.

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.

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). 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 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).

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

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