M.N.W., In Interest of, 97-1206

• Citation: 577 N.W.2d 874
• Decision Date: 25 February 1998
• Docket Number: No. 97-1206,97-1206
• Parties: In the Interest of M.N.W. and P.B.S.W., Minor Children, C.W., Mother, Appellant.
• Court: Court of Appeals of Iowa

Page 874

577 N.W.2d 874

In the Interest of M.N.W. and P.B.S.W., Minor Children,

C.W., Mother, Appellant.

No. 97-1206.

Court of Appeals of Iowa.

Feb. 25, 1998.

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

Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant Attorney General, and Rhoda Tenuta, Assistant County Attorney, for appellee State.

Joseph Kertels, Sioux City, for minor children.

Heard by HUITINK, P.J., and STREIT and VOGEL, JJ.

VOGEL, Judge.

On appeal from the termination of her parental rights, the mother, Christie, claims the juvenile court erred in: (1) failing to determine whether the Indian Child Welfare Act (ICWA) was applicable; and (2) ruling in the post-termination hearing that ICWA did not apply to her child.

Background facts. Christie is the mother of Phoenix, born in October 1994. David is the putative father. Phoenix was removed from Christie's care in April 1995 and was subsequently adjudicated a child in need of assistance (CINA) because of Christie's substance abuse problems. Christie was unsuccessful in completing recommended treatment programs and has not scheduled a visit with Phoenix since October 1995. David has not been involved in Phoenix's life since September 25, 1995.

Neither Christie nor David appeared at the termination hearing. During that hearing, Christie's attorney questioned the Department of Human Services' (DHS) case worker about whether Phoenix might be Native American and if any determination had been made as to whether the Indian Child Welfare Act (ICWA) was applicable. The issue arose because Christie's attorney found in a pre-adoptive home study report that the child's maternal grandmother told the agency that the father is "Native American, Mexican, and Filipino." The only other reference to any possible Native American heritage comes from the name Phoenix itself. ¹ The juvenile court sustained the State's objection to the questioning, finding David had the burden to bring the issue of the applicability of ICWA to the court's attention. In an order filed on June 17, Christie's and David's parental rights were terminated. Only Christie appeals.

Subsequent to the termination, notice was given to the Secretary of the Interior, Bruce Babbitt, the guardian ad litem, and the Iowa Department of Human Services of a hearing to determine if ICWA was applicable. As both David's and Christie's parental rights had been terminated, no notice was given to them. With no additional information indicating Phoenix was a child either enrolled or eligible for enrollment in an Indian Tribe, the court determined ICWA did not apply to the termination.

Scope of review. We review proceedings to terminate a parent-child relationship de novo; we may review the facts as well as the law and adjudicate the parents' rights anew. In re Dameron, 306 N.W.2d 743, 745 (Iowa 1981). Our primary concern is the best interests of the child; we look both the child's long-range and immediate interests. In Interest of J.W., 528 N.W.2d 657, 659 (Iowa App.1995).

I. Standing. The State argues Christie has no standing to address whether the court correctly ruled that ICWA did not apply as her parental rights were terminated by the court at the previous termination hearing. We agree. See In Interest of J.P., 499 N.W.2d 334, 340 (Iowa App.1993) ("Once the court determines the requirements are met to support termination, our legislature has chosen not to allow a parent to have enforceable rights."). Nevertheless, we address this claim with her other arguments because of the legal implications raised by Christie, potentially impacting both Phoenix and any possible tribal rights.

II. Applicability of ICWA. Christie contends the juvenile court erred in failing to determine at the outset of the proceedings whether or not ICWA was applicable. She contends the DHS files included information indicating that David was part Native American and the child's full name should have alerted the court to the possible applicability of ICWA.

ICWA provides:

In any involuntary proceeding in 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 parents 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...