In re REKF
Decision Date | 10 June 2005 |
Docket Number | No. 04-1864, No. 05-0251. |
Citation | 698 N.W.2d 147 |
Parties | In the Interest of R.E.K.F., Minor Child, G. F., Father, Appellant. |
Court | Iowa Supreme Court |
Irene A. Schrunk, Sioux City, for appellant father of R.E.K.F.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd and Tabitha Gardner, Assistant Attorneys General, Thomas S. Mullin, County Attorney, and Dewey Sloan, Assistant County Attorney, for resister State of Iowa.
Marchelle Denker of the Juvenile Law Center, Sioux City, guardian ad litem for minor children.
A father appeals the termination of his parental rights to his daughter. He contends the State did not comply with the tribal notice provisions of the Iowa Indian Child Welfare Act. Because the State notified the wrong Indian tribe, we remand for further proceedings.
Garrett is the putative father of Ruby, who was born in July 2003. Four months after her birth, Ruby was adjudicated a child-in-need-of-assistance. In March 2004, the State filed a petition to terminate Garrett's parental rights.
In July 2004, Garrett informed the juvenile court he had "Native American heritage through the Seneca tribe, which is out in the eastern United States, and ... maybe in Canada." Garrett asked the court to continue the trial so that notice of the termination proceedings could be given to this tribe, pursuant to the requirements of the Iowa Indian Child Welfare Act (Iowa ICWA). See Iowa Code § 232B.5(4) (Supp.2003). The juvenile court denied the motion.
Before deciding whether to terminate Garrett's parental rights, however, in November 2004 the juvenile court reconsidered its earlier ruling and ordered the State to notify "the Seneca Tribe" of the proceedings. The juvenile court decreed that if "the Seneca Tribe" did not request to intervene before the end of the year, the court would close the record and issue its decision on the termination.
The State promptly sent notice of the termination proceedings to the Seneca-Cayuga Tribe in Miami, Oklahoma. In December 2004, the Peoria Tribe of Indians of Oklahoma notified the State that Ruby was not a member of the Seneca-Cayuga Tribe of Oklahoma. In February 2005, the juvenile court determined the Iowa ICWA statute did not apply and terminated Garrett's rights. See Iowa Code § 232.116(1)(d), (l).
Garrett appealed. He argued, among other things, that the State did not comply with the tribal notice requirements of the Iowa ICWA, there was insufficient evidence to support the termination, and the termination was not in Ruby's best interests. The court of appeals affirmed in an unpublished opinion.1
Garrett sought further review, which we granted. Although we retain the discretion to reexamine all issues raised in the initial appeal, in this case we only consider Garrett's Iowa ICWA tribal notice claim.2 Cf. Bokhoven v. Klinker, 474 N.W.2d 553, 557 (Iowa 1991)
(. ) We affirm the decision of the court of appeals in all other respects.
Our review of termination cases is ordinarily de novo. See, e.g., In re C.B., 611 N.W.2d 489, 492 (Iowa 2000)
. To the extent Garrett's claim of error rests upon statutory interpretation, however, our review is for correction of errors of law. See In re E.H. III, 578 N.W.2d 243, 245 (Iowa 1998). The provisions of the Iowa ICWA are to be strictly construed and applied. Cf. In re J.W., 498 N.W.2d 417, 421 (Iowa Ct.App.1993).
Before attending to the merits of Garrett's appeal, we must resolve a pending motion. In his further review brief, Garrett attached several exhibits which were not part of the record before the juvenile court. The State moved to strike this additional information. We grant the State's motion to strike. See In re M.M., 483 N.W.2d 812, 815 (Iowa 1992)
( ); see also In re E.A., 552 N.W.2d 135, 138 (Iowa 1996) (similar).
At issue in this appeal are the tribal notice provisions of the Iowa ICWA. Those provisions require the juvenile court to notify the proper Indian tribe whenever it has reason to know that an Indian child may be involved in an involuntary termination. In particular, Iowa ICWA states:
Id. § 232B.5(3). Whether or not a child is an Indian child is, after all, a question for the tribe to answer in the first instance. Id. § 232B.4(3); see J.W., 498 N.W.2d at 422
(); see also In re J.L.M., 234 Neb. 381, 451 N.W.2d 377, 387 (1990) (). Only if the Indian tribe does not provide evidence of the child's status as an Indian child may the juvenile court determine the matter itself. Iowa Code § 232B.4(3). Taken together, the foregoing provisions of the Iowa ICWA, as do those of similar statutes in other jurisdictions, recognize that it is better to err on the side of giving notice to the tribe and examining thoroughly whether the child is an Indian child. Cf. In re M.C.P., 153 Vt. 275, 571 A.2d 627, 635 (1989). This determination "must be made as soon as practicable in order to serve the best interest of the child and to ensure compliance with the notice provisions of [the Iowa ICWA]." Iowa Code § 232B.4(4).
Iowa Code § 232B.3(11). The relevant federal regulations list the "Seneca Nation of New York" as one such tribe.3 68 Fed. Reg. 68180, 68182 (Dec. 5, 2003). The Seneca Nation of New York is to be contrasted with another listed tribe, the "Seneca-Cayuga Tribe of Oklahoma." Id. We cannot say, as did the court of appeals, that the State adequately complied with the Iowa ICWA by sending notice to the Seneca-Cayuga Tribe of Oklahoma. Garrett stated his heritage lay with "the Seneca tribe ... out in the eastern United States. . . ." The State notified the wrong tribe, and therefore the court did not ensure compliance with the Iowa ICWA.4
The parties appear to assume that if the tribal notification requirements of the Iowa ICWA were not met, then we must reverse the termination of Garrett's parental rights. This is not so, because there is still no assurance that Ruby is an Indian child. A great number of courts considering similar statutes have held that when an appellate court finds a violation of ICWA notice provisions, reversal is not necessarily warranted. Rather, the proper procedure, at least when there is no other evidence the child is an Indian child, is to affirm the termination on the condition that the proper notification be provided. Only if it turns out the child is an Indian child and the tribe wants to intervene must the termination be reversed. Otherwise the termination stands. See, e.g., In re Kahlen W., 233 Cal.App.3d 1414, 285 Cal.Rptr. 507, 514 (1991)
; In re Junious M., 144 Cal.App.3d 786, 193 Cal.Rptr. 40, 47 (1983); In re D.S., 577 N.E.2d 572, 575 (Ind.1991); In re I.E.M., 233 Mich. App. 438, 592 N.W.2d 751, 757-58 (1999); J.L.M., 451 N.W.2d at 386-87; In re C.H., 510 N.W.2d 119, 124 (S.D.1993); M.C.P., 571 A.2d at 635; In re M.S.S., 86 Wash. App. 127, 936 P.2d 36, 41-42 (1997); see also In re Arianna R.G., 259 Wis.2d 563, 657 N.W.2d 363, 374 (2003) (Abrahamson, C.J., dissenting); accord In re Elizabeth W., 120 Cal.App.4th 900, 16 Cal.Rptr.3d 514, 520 (2004) ("conditional reversal"). We affirm on this condition and remand. Cf. State v. Powell, 684 N.W.2d 235, 242 (Iowa 2004) ( ); In re Luloff, 512 N.W.2d 267, 275 (Iowa 1994) (same).
This solution is consistent with the mandate of the Iowa ICWA. The provisions of the Iowa ICWA do not apply until the court determines the children are "Indian" as defined in the Iowa ICWA. Therefore there can be no violation of the Iowa ICWA until the court determines it applies to the proceedings. Cf. In re J.D.B., 584 N.W.2d 577, 581-82 (Iowa Ct.App.1998)
. Reversal is not yet, if ever, a proper remedy in this case....
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