In Re NV

744 N.W.2d 634, 2008 WL 399259
CourtSupreme Court of Iowa
DecidedFebruary 15, 2008
Docket07-0583
StatusPublished
Cited by2 cases

This text of 744 N.W.2d 634 (In Re NV) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re NV, 744 N.W.2d 634, 2008 WL 399259 (iowa 2008).

Opinion

744 N.W.2d 634 (2008)

In the Interest of N.V. and P.V., Minor Children,
State of Iowa, Appellant.

No. 07-0583.

Supreme Court of Iowa.

February 15, 2008.

*635 Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Andrea Vitzhum, Assistant County Attorney, for appellant.

Jeffrey S. Rasmussen of Olson Allen & Rasmussen, L.L.P., Bloomington, MN, and Patrick Wilson, Marshalltown, for appellee Sac and Fox Tribe of the Mississippi in Iowa.

Victoria Meade, West Des Moines, for appellee-mother.

David Pargulski, Des Moines, for appellee-father.

Christine Bisignano, West Des Moines, for minor children.

WIGGINS, Justice.

We must decide whether the district court properly transferred this case to the tribal court. Because the State failed to provide a legal basis for the district court to deny the transfer of this case to the tribal court, we affirm the district court's order.

I. Background Facts and Proceedings.

The State filed a child in need of assistance (CINA) petition regarding N.V. and P.V. in September 2005. The father of the children was an enrolled member of a tribe other than the Sac and Fox Tribe; .however, his mother was a member of the Sac and Fox Tribe, making the father a descendant. According to the Sac and Fox Tribe, N.V. and P.V. were not entitled to enrollment. Even though the children were not entitled to enrollment, under the Iowa Indian Child Welfare Act (Iowa ICWA) the Sac and Fox Tribe was entitled to notification of the proceedings because the Iowa ICWA defines an Indian child as one whom "the Indian tribe identifies as a child of the tribe's community." Iowa Code § 232B.3(6) (2005).[1]

On November 28 the district court held a CINA hearing. At the hearing the director of Meskwaki Family Services, who oversees the Iowa ICWA transfers for the Sac and Fox Tribe, acknowledged the tribe received notice of the CINA proceedings. The director testified N.V. and P.V. are not eligible for membership or enrollment in the tribe, but are considered descendants. Therefore, N.V. and P.V. are children of the tribal community and hence Indian children under the Iowa ICWA. The director explained the tribe did not wish to seek jurisdiction over the case because it only sought jurisdiction over cases involving children who were enrolled or eligible for enrollment in the tribe.

The CINA proceedings continued under Iowa Code section 232.2(6)(n) (parental *636 drug use) and section 232.2(6)(c)(2) (parental failure to supervise). The parents did not contest the adjudication of their children as children in need of assistance or the placement of their children outside the home with a relative who was licensed as a foster parent. At the time of the CINA proceedings, both parents were incarcerated.

The mother was released from custody in August 2006. The court held the termination hearing on March 1, 2007. The mother was present at the hearing in person and the father appeared by telephone because he was still incarcerated. At the hearing the mother requested the court to transfer jurisdiction of the proceedings to the tribal court. The father joined the request. The State objected to the transfer. After granting additional time to submit briefs on the issue, the district court granted the request to transfer jurisdiction to the tribal court.

II. Issues.

The State raises three issues on appeal: (1) whether the district court could deny an "eleventh-hour" request to transfer the custody proceedings to a tribal court; (2) whether the parties or witnesses would suffer undue hardship by such a transfer; and (3) whether the doctrines of estoppel, forfeiture, or lathes prevent the parents from requesting a transfer to the tribal court.

III. Scope of Review.

Normally, our review of proceedings to terminate parental rights is de novo. In re J.E., 723 N.W.2d 793, 798 (Iowa 2006). However, we review issues of statutory interpretation for correction of errors at law. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). Because the court did not hold a termination hearing, and because the court based its decision to transfer the case on its interpretation of Iowa Code section 232B.5(10), our review is for correction of errors at law.

IV. Analysis.

A. Whether the District Court Could Deny an "Eleventh-Hour" Request to Transfer Custody Proceedings to a Tribal Court. Sections 232B.5(10) and 232B.5(13) deal with a request to transfer a case from a district court to a tribal court. Section 232B.5(10) allows either of a child's parents to request such a transfer. Iowa Code § 232B.5(10). This section provides:

Unless either of an Indian child's parents objects, in any child custody proceeding involving an Indian child who is not domiciled or residing within the jurisdiction of the Indian child's tribe, the court shall transfer the proceeding to the jurisdiction of the Indian child's tribe, upon the petition of any of the following persons:
a. Either of the child's parents.
b. The child's Indian custodian.
c. The child's tribe.

Id.

Section 232B.5(13) puts limits on the court's ability to transfer a case to the tribal court. Section 232B.5(13) provides what circumstances constitute "good cause" for a court to deny a request to transfer a case to a tribal court. Id. § 232B.5(13). The section reads as follows:

If a petition to transfer proceedings as described in subsection 10 is filed, the court shall find good cause to deny the petition only if one or more of the following circumstances are shown to exist:
a. The tribal court of the child's tribe declines the transfer of jurisdiction.
*637 b. The tribal court does not have subject matter jurisdiction under the laws of the tribe or federal law.
c. Circumstances exist in which the evidence necessary to decide the case cannot be presented in the tribal court without undue hardship to the parties or the witnesses, and the tribal court is unable to mitigate the hardship by making arrangements to receive and consider the evidence or testimony by use of remote communication, by hearing the evidence or testimony at a location convenient to the parties or witnesses, or by use of other means permitted in the tribal court's rules of evidence or discovery.
d. An objection to the transfer is entered in accordance with subsection 10.

The State requests us to construe the transfer statutes to provide the court with discretion to deny the parents' demand to transfer jurisdiction to the tribal court because they did not present good cause to excuse their untimely transfer request. We only resort to the rules of statutory construction when a statute is ambiguous. State v. Wiederien,

Related

In re Spears
872 N.W.2d 852 (Michigan Court of Appeals, 2015)
in Re Spears Minors
Michigan Court of Appeals, 2015

Cite This Page — Counsel Stack

Bluebook (online)
744 N.W.2d 634, 2008 WL 399259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nv-iowa-2008.