M.N.W., In Interest of, No. 97-1206

CourtCourt of Appeals of Iowa
Writing for the CourtVOGEL
Citation577 N.W.2d 874
Docket NumberNo. 97-1206
Decision Date25 February 1998
PartiesIn the Interest of M.N.W. and P.B.S.W., Minor Children, C.W., Mother, Appellant.

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.

Page 875

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...

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27 practice notes
  • Dwayne P. v. Superior Court, No. D039556.
    • United States
    • California Court of Appeals
    • 30 Octubre 2002
    ...of Cornejo (1996) 13 Cal.4th 381, 388, 53 Cal.Rptr.2d 81, 916 P.2d 476.) 5. The Agency relies on In Interest of M.N.W. (Iowa App.1998) 577 N.W.2d 874, 875-877, and Matter of Johanson (1987) 156 Mich.App. 608, 402 N.W.2d 13, 15-16, for the proposition that "[m]ere Indian ancestry is not enou......
  • In re CN, No. 87519.
    • United States
    • Illinois Supreme Court
    • 24 Mayo 2001
    ...motion, with only the unsubstantiated assertion by respondent-mother that children were of Native American heritage); In re M.N.W., 577 N.W.2d 874, 876-77 (Iowa App.1998) (holding that, in view of the scant evidence of the father's Native American heritage, trial court did not err in failin......
  • In re T.A., No. 4-07-0785.
    • United States
    • United States Appellate Court of Illinois
    • 15 Febrero 2008
    ...tribe; respondent's caseworker contacted several Cherokee tribes but obtained nothing to substantiate her claim); In re M.N.W., 577 N.W.2d 874, 877 (Iowa App.1998) (finding an "unsubstantiated" statement made by the caseworker that the child's mother indicated that the child's father was pa......
  • Bruce L. v. W.E., No. S–13580.
    • United States
    • Supreme Court of Alaska (US)
    • 11 Febrero 2011
    ...for tribal membership, where the “state court does not have a conclusive determination from the tribe or the BIA”); In re M.N.W., 577 N.W.2d 874, 876 (Iowa App.1998) (“Other states have established it is incumbent upon the party asserting applicability of ICWA to prove the child meets the c......
  • Request a trial to view additional results
27 cases
  • Dwayne P. v. Superior Court, No. D039556.
    • United States
    • California Court of Appeals
    • 30 Octubre 2002
    ...of Cornejo (1996) 13 Cal.4th 381, 388, 53 Cal.Rptr.2d 81, 916 P.2d 476.) 5. The Agency relies on In Interest of M.N.W. (Iowa App.1998) 577 N.W.2d 874, 875-877, and Matter of Johanson (1987) 156 Mich.App. 608, 402 N.W.2d 13, 15-16, for the proposition that "[m]ere Indian ancestry is not enou......
  • In re CN, No. 87519.
    • United States
    • Illinois Supreme Court
    • 24 Mayo 2001
    ...motion, with only the unsubstantiated assertion by respondent-mother that children were of Native American heritage); In re M.N.W., 577 N.W.2d 874, 876-77 (Iowa App.1998) (holding that, in view of the scant evidence of the father's Native American heritage, trial court did not err in failin......
  • In re T.A., No. 4-07-0785.
    • United States
    • United States Appellate Court of Illinois
    • 15 Febrero 2008
    ...tribe; respondent's caseworker contacted several Cherokee tribes but obtained nothing to substantiate her claim); In re M.N.W., 577 N.W.2d 874, 877 (Iowa App.1998) (finding an "unsubstantiated" statement made by the caseworker that the child's mother indicated that the child's father was pa......
  • Bruce L. v. W.E., No. S–13580.
    • United States
    • Supreme Court of Alaska (US)
    • 11 Febrero 2011
    ...for tribal membership, where the “state court does not have a conclusive determination from the tribe or the BIA”); In re M.N.W., 577 N.W.2d 874, 876 (Iowa App.1998) (“Other states have established it is incumbent upon the party asserting applicability of ICWA to prove the child meets the c......
  • Request a trial to view additional results

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