In the Interest of T.F and T.F., Minor Children

• Court: Supreme Court of Iowa
• Decided: March 11, 2022
• Docket: 21-0243
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 21–0243

Submitted December 14, 2021—Filed March 11, 2022

IN THE INTEREST OF T.F. and T.F., Minor Children.

T.F., Father,

Appellant,

THE OMAHA TRIBE OF NEBRASKA & IOWA,

Intervenor–Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Susan Cox, District

Associate Judge.

Father and the Tribe appeal the juvenile court’s order terminating parental

rights, arguing that the juvenile court erred in considering “the best interests of

the child” in a transfer of jurisdiction motion, in violation of the federal and state

Indian Child Welfare Acts. DECISION OF COURT OF APPEALS VACATED;

JUVENILE COURT JUDGMENT REVERSED AND REMANDED WITH

INSTRUCTIONS. 2

Appel, J., delivered the opinion of the court, in which Christensen, C.J.,

and Mansfield and Oxley, JJ., joined. McDermott, J., filed an opinion concurring

in part and dissenting in part, in which Waterman and McDonald, JJ., joined.

Jonathan M. Causey (argued) of Causey & Ye Law, P.L.L.C., Des Moines,

for appellant Father.

Alexis Zendejas (argued), Macy, Nebraska, for intervenor–appellant the

Omaha Tribe of Nebraska & Iowa.

Thomas J. Miller, Attorney General, and Mary A. Triick (argued), Assistant

Attorney General, for appellee State.

Cathleen J. Siebrecht (argued) of Siebrecht Law Firm, Des Moines, and

Erin E. Mayfield (until withdrawal) of the Youth Law Center, Des Moines,

attorney and guardian ad litem for minor children. 3

APPEL, Justice.

This case involves an appeal by a parent and the Omaha Tribe of Nebraska

& Iowa (Tribe) from an order terminating parental rights with respect to two

“Indian”1 children under the Indian Child Welfare Act, 25 U.S.C. § 1903(4)

(ICWA), and Iowa Code chapter 232B (2021) (Iowa ICWA). The State commenced

child-in-need-of-assistance (CINA) proceedings involving the older child in

November 2018 and the younger child on February 19, 2019. The Tribe filed a

petition for intervention in the state court proceedings, which was granted on

February 20. After the State filed a petition to terminate parental rights in

January 2020, the Tribe filed a motion to transfer the case to tribal court.

The juvenile court held a two-day hearing in July 2020. In September, the

juvenile court denied the motion to transfer, reasoning, among other things, that

“good cause” was present to deny the transfer as it would not be in the best

interests of the children. After notice and hearing, the juvenile court terminated

the parental rights of both parents in February 2021.

The Tribe and Father appealed. They argue, among other things, that the

motion to transfer was improperly denied by the juvenile court under the state

and federal ICWA statutes. They argue that the question of whether there is good

cause to deny transfer to tribal courts under both statutes focuses narrowly on

forum-non-conveniens-type considerations. Father and the Tribe further argue

1“[W]e ‘use[] terms such as “Indian country,” and demarcations such as “Indian” and “non-Indian” only for purposes of consistency with the existing legal framework and nomenclature.’ ” State v. Bear, 969 N.W.2d 499, 500 n.1 (Iowa 2021) (second alteration in original) (quoting State v. Stanton, 933 N.W.2d 244, 247 n.1 (Iowa 2019)). 4

that the juvenile court erred in considering the larger substantive issue of “the

best interests of the child” in the transfer calculus.

For the reasons expressed below, we conclude that the juvenile court erred

in considering the best interests of the children on the narrow question of

transfer to the tribal court. We reverse the juvenile court and remand the case

for transfer to the tribal court.

I. Procedural and Factual Background.

A. Procedural Background. Both T.F. (older T.F.) and T.F. (younger T.F.)

are “Indian child[ren]” under 25 U.S.C. § 1903(4). The two children were removed

at different times from their parents. Both Father and Mother are enrolled

members in the Tribe. Shortly after the younger T.F. was removed, the Tribe filed

a motion to intervene in the CINA proceedings in the state court. The motion was

granted on February 20. The two children were adjudicated as CINA on March

31 and April 1. Disposition occurred for both children on April 24 with a review

hearing on July 18.

A permanency order was entered on January 20, 2020. Shortly thereafter,

the State filed its petition for termination of parental rights on January 23. The

Tribe filed a motion to transfer the matter to the Omaha Tribe Juvenile Court on

January 30. On February 25, the Tribe filed a motion to intervene in the

termination-of-parental-rights proceedings and a petition to transfer the case to

tribal court.

B. Motion to Transfer. The juvenile court held a hearing on the motion to

transfer via video conference on June 19 and July 2. At the hearing, the Tribe 5

called Mosiah Harlan as a Qualified Expert Witness (QEW). He testified that

tribal customs and traditions do not align with termination of parental rights.

He further testified that the Tribe would be willing to work with the current foster

placement if the foster parents worked with the Tribe.

The foster mother testified at the transfer hearing. She testified generally

that the children were doing well. She stated that the foster family had sought

to familiarize themselves with the heritage of the children including visiting the

Sioux City reservation, reading tribal books, and visiting a museum in

Washington D.C. According to the foster mother, the foster family would welcome

help from the Tribe regarding preserving the children’s heritage.

Father and Mother also testified. Father was incarcerated with a release

date of February 2021. Mother testified that she had recently been committed

for psychiatric care and was now in a treatment center. She testified she wanted

the transfer to occur to give her more time to have the children returned to her

custody.

The State argued that transfer should be denied because of the lack of

responsibility by Mother and Father, the efforts of the foster parents to promote

the children’s Native American heritage, and the good relationship between the

current professionals and the children. The guardian ad litem for the children

joined the State in resisting the transfer of the case to tribal court.

On September 20, the juvenile court denied the motion to transfer. The

juvenile court canvassed the history of the file in detail. The history generally

revealed a lengthy drug and mental health history of Mother, drug abuse and 6

alcoholism of Father, and criminal history of both, including domestic violence

by Father. The juvenile court canvassed unsuccessful efforts to place the

children with the great grandmother and the great aunt, both of whom also

belong to the Tribe. The juvenile court noted that the court appointed special

advocate (CASA) for the children recommended that the parental rights of the

parents be terminated and the children continue living with the foster parents.

In considering the transfer question, the juvenile court began its analysis

by canvassing provisions of the Iowa ICWA and related caselaw. Citing

unpublished court of appeals precedent, the juvenile court noted that the Iowa

ICWA had a “dual purpose” of protecting the best interests of the child and

preserving the Native American culture. See In re E.D., No. 16–0829, 2016 WL

4379382, at *3 (Iowa Ct. App. Aug. 17, 2016) (unpublished table decision) (citing

In re D.S., 806 N.W.2d 458, 465 (Iowa Ct. App. 2011)).

The juvenile court proceeded to consider provisions of the Iowa ICWA

related to the transfer of matters to tribal court. See Iowa Code § 232B.5(10)–

(11), (15). The juvenile court noted that under these provisions of the Iowa ICWA,

the children were not permitted to object to transfer. Yet, the juvenile court noted

that in In re J.L., 779 N.W.2d 481, 489 (Iowa Ct. App. 2009), the court of appeals

held that the failure of the Iowa ICWA to permit children to challenge transfer to

tribal court violated the children’s procedural due process rights. In addition,

the juvenile court noted that the In re J.L. court further concluded that by

narrowly defining “good cause,” the Iowa ICWA violated the substantive due 7

process rights of the children by not permitting them to argue that transfer of

the matter was not in the children’s best interest. Id. at 491–92.

The juvenile court found that good cause was properly raised by the

children’s guardian ad litem and by the county attorney. According to the

juvenile court, once the good cause issue was raised, the burden shifted to the

moving party to support the transfer of jurisdiction to the tribal court. In

considering good cause, the juvenile court noted, but did not discuss, a federal

regulation which provides that the court may not consider various reasons as

“good cause” for resisting transfer, including “[w]hether transfer could affect the

placement of the child” and “any negative perception of Tribal or BIA social

services or judicial systems.” 25 C.F.R. § 23.118(c)(3), (5) (2021).

Based on the record, the juvenile court found that it was in the children’s

best interest to deny the transfer for several reasons. First, the juvenile court

found that services provided to the children and parents pursuant to the state

court proceedings were excellent. The court noted that the older child suffered

repeated trauma due to the parents’ substance abuse, instability, and domestic

violence. Transfer of the case to the tribal court would require the involvement

of a new set of professionals, something that the juvenile court found would be

cruel in light of the children’s difficulty adjusting to strangers.

Second, the juvenile court concluded that the state court was best situated

to litigate custody of the children and parental rights of the parents. The juvenile

court noted that the proceedings in the state court were at an “advanced stage” 8

with a permanency order issued and that the petition to terminate parental

rights had been on file for over five months.

Finally, the juvenile court recognized that while the children’s placement

was not in a Native American home, the foster parents have sought to continue

the children’s involvement with the Tribe and other Native American tribal

cultures. As a result, the juvenile court believed that keeping the case in state

court would not prevent the children from maintaining the vital relationship with

the Tribe and would not “interfere with the policy that the best interest of an

Indian child require that the child be placed in a foster or adoptive home that

reflects the unique values of Indian culture.”

C. Juvenile Court Termination of Parental Rights. The juvenile court

held a termination hearing on December 9 and 10, 2020. Father attended from

prison, while Mother did not attend. A number of witnesses testified at the

termination hearing. Dr. Rudi Mitchell, a QEW, testified regarding the family and

social order of the Tribe. He recounted the difficulty of the Tribe in maintaining

its identity. He recommended a guardianship for the children. Mitchell, however,

had not met the children, the parents, the social worker involved in the case, or

the foster parents.

The foster mother testified at length. She generally recounted the positive

development of the children. She testified about efforts to ensure that the

children were connected with their culture, including research, reading books,

visiting museums, and teaching the children to count in their native language. 9

Iowa Department of Human Services (DHS) worker April Hase testified.

Among other things, she reviewed the file generally, outlined the chronic

difficulties of the parents, the unsuccessful efforts to involve the great

grandmother and great aunt in providing a safe environment for the children,

and the difficulty of finding alternative placements for the children.

Father testified from prison regarding his minimal recent contact with the

children. He testified that he believed in the Tribe’s culture, customs, and beliefs.

He challenged DHS’s rendition of the history of the case. Father testified

regarding his criminal history and unwillingness to comply with a no-contact

order related to Mother.

The juvenile court on February 3, 2021, terminated the parental rights of

both parents. The court amended the order several days later on February 7. The

juvenile court canvassed the history of the case, finding that the parents were

not in a position to resume caring for the children. The juvenile court further

found that DHS provided the parents with active efforts under ICWA. Therefore,

the juvenile court concluded that DHS went above and beyond in its effort to

assist the family, including physically helping Mother pack and move her things

and taking her to the courthouse so she could apply for a no-contact order

against Father.

D. Issues Raised on Appeal. Father raises several issues for the court’s

review. Father claims that the juvenile court erred by denying the Tribe’s request

to transfer jurisdiction to the tribal court in violation of the federal and Iowa

ICWA. Father further contests the juvenile court’s order of termination of his 10

parental rights. Father claims that the termination of parental rights was flawed

because the State failed to meet its burden under ICWA, and that the State failed

to follow ICWA’s mandates and provide active efforts.

The Tribe also appealed. Like Father, the Tribe contests the juvenile court’s

denial to transfer jurisdiction. The Tribe contends that the court erred by using

the best interests of the child analysis to determine the jurisdiction issue. The

Tribe also believes that the juvenile court erred in resting its transfer decision on

impermissible factors.

The State does not contest Father’s transfer of jurisdiction argument and

instead argues Father’s appeal was untimely. Additionally, the State urges the

court to find that the denial of a motion to transfer a final appealable order rather

than an interlocutory order. With respect to the termination order, the State

believes active efforts have been provided and there was sufficient evidence to

support termination of Father’s parental rights.

The guardian ad litem supports the juvenile court’s order terminating

parental rights. The guardian ad litem first argues that Indian children have a

due process right to object to a motion to transfer jurisdiction based on In re J.L.,

779 N.W.2d at 489. Specifically, the guardian ad litem points out that even

though the Tribe intervened fairly early in the CINA proceedings, it did not ask

for transfer of jurisdiction until the State filed its termination-of-parental-rights

petition. The guardian ad litem contends that best interests of the children

should be taken into account when deciding transfer of jurisdiction, and if

situations require, it can override tribal or family interests. The guardian ad litem 11

further asserts that placement with either parent would cause emotional or

physical damage to the children. The guardian ad litem also praises the current

foster family’s efforts to help the children stay connected to the Tribe. Lastly, the

guardian ad litem argues that the Tribe fails to meet its burden in the motion to

transfer.

E. Decision of the Iowa Court of Appeals. A 2–1 majority of the court of

appeals affirmed the juvenile court. The majority noted that under the federal

ICWA, the legislative history indicated that good cause to deny transfer was

designed to provide state courts with flexibility in determining the disposition of

a placement proceeding involving an Indian child. Chester Cnty. Dep’t of Soc.

Servs. v. Coleman, 372 S.E.2d 912, 914 (S.C. Ct. App. 1988) (per curiam) (citing

H.R. Rep No. 95–1386 (1978), as reprinted in 1978 U.S.C.A.N. 7530, 7544). The

majority did note, however, that under the Bureau of Indian Affairs (BIA)

guidelines, a good cause finding is similar to “a modified [(i.e. limited, narrow)]

doctrine of forum non conveniens” analysis. Indian Child Welfare Act

Proceedings, 81 Fed. Reg. 38778, 38821 (June 14, 2016) (to be codified at 25

C.F.R. pt. 23).

The majority next surveyed the Iowa ICWA and the accompanying caselaw.

It noted that under the Iowa ICWA, good cause to deny transfer was not defined.

Consequently, the majority reasoned that the lack of definition of good cause in

the Iowa ICWA meant that Iowa law was not limited by the federal ICWA

considerations. The court of appeals cited to the In re J.L. decision and declared

that the children were constitutionally entitled to challenge transfer and that 12

“nothing in [the Iowa ICWA] places maintaining the Indian culture above a child’s

rights or safety.” 779 N.W.2d at 492.

Based on its interpretation of the interlocking state and federal law and

the authority of In re J.L., the majority proceeded to consider whether there was

good cause to deny transfer. It concluded that there was. After recognizing that

the juvenile court engaged in the proper analysis of the good cause question, the

court of appeals majority upheld the denial of the motion to transfer the case to

Additionally, the majority concluded that the juvenile court properly found

that the State met its burden of showing “active efforts . . . designed to prevent

the breakup of the Indian family” and that those efforts were unsuccessful. Iowa

Code § 232B.5(19). The majority further affirmed the juvenile court’s ruling that

the grounds for termination of parental rights under the Iowa ICWA had been

met and that the juvenile court properly heard and considered the testimony

from a QEW. Id. § 232B.6(6)(a).

The court of appeals dissent found that under the Iowa ICWA, the “[b]est

interest of the child” required the court to utilize “practices in accordance with

the federal Indian Child Welfare Act.” Iowa Code § 232B.3(2). This meant,

according to the dissent, that Iowa law required courts to consider federal law in

analyzing whether transfer to tribal court is in the best interests of the child.

In looking to federal law regarding the best interests of the child, the

dissent cited the federal regulation titled, “How is a determination of ‘good cause’

to deny a transfer made?” 25 C.F.R. § 23.118(c). This regulation specifically 13

precludes a court from considering “[w]hether the . . . termination . . . is at an

advanced stage,” “[w]hether transfer could affect the placement of the child,”

“[t]he Indian child’s cultural connections with the Tribe or its reservation,” and

also “any negative perception of Tribal or BIA social services.” Id.

The dissent found that the juvenile court considered each of these grounds

prohibited by the federal regulations. The dissent pointed out that the juvenile

court explicitly cited in its order denying transfer due to the “advanced stage” of

the proceedings, the foster parent’s efforts to acculturate the children (which had

implications for their current placement and cultural connections), and

discussed the “excellent support services” provided to the children (implying that

support services provided by the Tribe would be less advantageous).

The Tribe and Father sought further review, which we granted.

II. Standard of Review.

The standard of review of a termination-of-parental-rights proceeding is

de novo. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). “Where, as here, the

children are members of a U.S. Indian tribe, the provisions of Iowa Code chapter

232 governing children in need of assistance are modified by the ICWA.” In re

A.E., 572 N.W.2d 579, 581 (Iowa 1997). We review statutory interpretations for

correction of errors of law. In re N.V., 744 N.W.2d 634, 636 (Iowa 2008).

Constitutional challenges to a statute are reviewed de novo. Wright v. Iowa Dep’t

of Corr., 747 N.W.2d 213, 216 (Iowa 2016). 14

III. Jurisdictional Issues.

A. Timeliness of Appeal. The State contends that Father’s appeal is

untimely. The juvenile court’s amended order terminating parental rights was

filed on February 21, 2021. Father’s notice of appeal was not filed until sixteen

days later, on February 23. Under Iowa Rule of Appellate Procedure 6.101(1)(a),

the notice of appeal must be filed “within 15 days.” Accordingly, Father’s appeal

was one day late.

The record reveals that the juvenile court filed the amended order at

8:54 p.m. on February 7, 2021, a Sunday night. According to Father’s attorney,

the order was not available to him until February 8. Father’s attorney states he

erroneously relied on February 8 as triggering the time period for filing the notice

of appeal.

We recently considered a similar issue in In re W.M., 957 N.W.2d 305 (Iowa

2021). In In re W.M., we held that delayed appeals would be recognized in

termination-of-parental-rights cases. Id. at 316. In In re W.M., we noted that a

delayed appeal would be available “only where the parent clearly intended to

appeal and the failure to timely perfect the appeal was outside of the parent’s

control.” Id. (quoting In re A.B., 957 N.W.2d 280, 292 (Iowa 2021)). We further

emphasized that the delay must be “no more than negligible” and would not

prolong the appeal process. Id. (quoting In re A.B., 957 N.W.2d at 292). In In re

W.M., we granted a delayed appeal that was two days late where the record

showed the party intended to appeal and the delay was not caused by any act or 15

omission of the party. Id. at 317. Applying the criteria established in In re W.M.,

we conclude that Father is entitled to file a late appeal in this case.

B. Interlocutory or Final Order. There is a second jurisdictional issue in

this case. The State contends that the order of the juvenile court denying transfer

should be considered a final order. By failing to timely appeal the final order, the

State argues we lack jurisdiction to review this matter. The court of appeals, in

an unpublished opinion, has held that a denial of transfer order does not dispose

of all of the issues in the case and, as a result, is not a final appealable order. In

re E.D., 2016 WL 4379382, at *6.

We too conclude that a denial of transfer order is not an appealable final

order. The Tribe and parents were not out of the case after the denial of transfer

order in this case. A denial of a motion to transfer jurisdiction is akin to a ruling

on forum non conveniens. Ordinarily, a denial of a motion to transfer based on

forum non conveniens is not considered final. See Carlenstolpe v. Merck & Co.,

819 F.2d 33, 36–37 (2d Cir. 1987). We have stated in the context of juvenile

matters that an order that is not a final decision is interlocutory. In re W.D., 562

N.W.2d 183, 185–86 (Iowa 1997). We see no basis to dismiss this appeal as

untimely on the ground that the order was interlocutory.

IV. Overview of Federal ICWA and Iowa ICWA Related to Transfer of Jurisdiction From State Court to Tribal Court.

A. Introduction. The crucial issue in this appeal is whether the juvenile

court erred in refusing to transfer jurisdiction over the matter to the Tribe under

25 U.S.C. § 1911(b). In order to lay the foundation necessary to resolve this 16

question, we explore the statutory contours of the federal ICWA and the Iowa

ICWA.

B. Statutory Framework of Federal ICWA.

1. Overview of federal ICWA. Starting in the 1970s, Congress became

increasingly aware of a “wholesale removal of Indian children from their homes.”

Subcomm. on Indian Affs., 93d Cong., 2d Sess., 3 (1974) (statement of William

Byler). Congressional hearings revealed that around 25% of the Native American

children were removed from their families and placed in non-Native American

foster and adoptive homes and institutions. Id. The removal of Native American

children from their homes was believed to threaten the survival of the Native

American tribes and their unique cultures.

Concerned about the removal of Native American children from their

families, Congress enacted ICWA, 25 U.S.C. ch.21. In ICWA, Congress recognized

that “there is no resource that is more vital to the continued existence and

integrity of Indian tribes than their children.” Id. § 1901(3). In the legislation,

Congress established federal standards that govern state court child custody

proceedings involving Indian children.

Congress aimed, among other things, to give tribal courts exclusive

jurisdiction over custody proceedings involving an Indian child. See Miss. Band

of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989). Congress believed “the

best interests of an Indian child are served by ensuring tribal participation in

placement and adoption proceedings, and that tribal participation in proceedings

involving Indian children is necessary.” Jennifer Nutt Carleton, The Indian Child 17

Welfare Act: A Study in the Codification of the Ethnic Best Interests of the Child,

81 Marq. L. Rev. 21, 27 (1997). The underlying premise of ICWA is that Native

American tribes have a vital interest as a sovereign government to be included

in the decision-making process regarding their children. Id.

ICWA “seeks to protect the rights of the Indian child as an Indian and the

rights of the Indian community and tribe in retaining its children in its society.”

Holyfield, 490 U.S. at 37 (quoting H.R. Rep. No. 91–1386, 23 (1978)). ICWA

ensures that the best interests of the child is understood in a context that reflects

and respects Native American values and cultures. In re D.M., 685 N.W.2d 768,

774 n.3 (S.D. 2004) (Konenkamp, J., concurring specially) (“The term ‘best

interest of the child’ has a broadened meaning under ICWA, incorporating

preservation of the Indian child’s cultural and tribal identity, preferably within

the jurisdiction of the child’s tribe.”). This is crucial because “the States,

exercising their recognized jurisdiction over Indian child custody proceedings

through administrative and judicial bodies, have often failed to recognize the

essential tribal relations of Indian people and the cultural and social standards

prevailing in Indian communities and families.” 25 U.S.C. § 1901(5).

Congress declared that there are two overarching policies behind ICWA:

“protect the best interests of Indian children,” and “promote the stability and

security of Indian tribes and families.” Id. § 1902. To do so, Congress established

“minimum Federal standards” for the removal and placement of Native American

children, which have to “reflect the unique values of Indian culture.” Id.

Additionally, states are required to assist Native American tribes in the operation 18

of child and family service programs. Id. States are free to provide more

protection, but not less. From this language, the idea of best interests of the child

is intertwined with the best interests of the tribe and its cultural preservation.

2. ICWA provision related to tribal court jurisdiction. ICWA provides the

tribes have exclusive jurisdiction over child custody proceedings when the Indian

child resides or is domiciled within the reservation of the tribe. Id. § 1911(a). This

case, however, involves a Native American not domiciled or residing within a

reservation. Under this situation, ICWA provides that

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe . . . .

Id. § 1911(b) (emphasis added). Additionally, ICWA grants the Indian child’s tribe

“a right to intervene at any point in the proceeding.” Id. § 1911(c).

In addition to the statutory provision of 25 U.S.C. § 1911(b), regulations

promulgated by the BIA have a substantially similar provision related to transfer

of jurisdiction from a state court to a tribal court in juvenile matters:

Upon receipt of a transfer petition from an Indian child’s parent, Indian custodian, or Tribe, the State court must transfer the child-custody proceeding unless the court determines that transfer is not appropriate because one or more of the following criteria are met:

(a) Either parent objects to such transfer;

(b) The Tribal court declines the transfer; or

(c) Good cause exists for denying the transfer. 19

25 C.F.R. § 23.117.

The statutory and regulatory provisions related to transfer of jurisdiction

to tribal courts under ICWA do not provide a definition of “good cause.” The BIA,

however, has issued guidelines regarding the meaning of good cause in the

statute related to transfer of jurisdiction. According to the BIA, “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 for State Courts;

Indian Child Custody Proceedings, 44 Fed. Reg. 67584 (Nov. 26, 1979) (emphasis

added). While the BIA rejected the assertion that it had the power to promulgate

regulations with binding effect, it did provide the following suggestions on

interpreting the ICWA transfer provision in § 1911(b):

(a) Good cause not to transfer the proceeding exists if the Indian child’s tribe does not have a tribal court . . . .

(b) Good cause not to transfer the proceeding may exist if any of the following circumstances exists:

(i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.

(ii) The Indian child is over twelve years of age and objects to the transfer.

(iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.

(iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child’s tribe or members of the child’s tribe. 20

(c) Socio-economic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in a determination that good cause exists.

(d) The burden of establishing good cause to the contrary shall be on the party opposing the transfer.

Id. at 67591.

In addition to these guidelines, the regulations also set forth rules to

determine good cause to deny the transfer of jurisdiction. Interestingly, the

regulations emphasize what should not be included in the good cause

determination:

(1) Whether the foster-care or termination-of-parental-rights proceeding is at an advanced stage if the Indian child’s parent, Indian custodian, or Tribe did not receive notice of the child-custody proceeding until an advanced stage;

(2) Whether there have been prior proceedings involving the child for which no petition to transfer was filed;

(3) Whether transfer could affect the placement of the child;

(4) The Indian child’s cultural connections with the Tribe or its reservation; or

(5) Socioeconomic conditions or any negative perception of Tribal or BIA social services or judicial systems.

25 C.F.R. § 23.118(c).

3. Summary. The federal ICWA and accompanying regulations and

guidelines establish a framework for consideration of motions to transfer juvenile

matters from state court to tribal court. Although good cause is not elaborated

at length, both the statute and regulations state in some detail what is not good

cause. Absent an objection to transfer or a showing of unavailability or

substantial hardship with a tribal forum, transfer is to occur. Clearly, Congress 21

has an overall objective in enacting ICWA to establish a framework for the

preservation of Native American families wherever possible.

C. Overview of Provisions of Iowa ICWA.

1. Overview of Iowa ICWA. Iowa passed the Iowa Indian Child Welfare Act

in 2003 to “clarify state policies and procedures regarding implementation” of

the federal ICWA. Iowa Code § 232B.2. Section 232B.2 further states:

It is the policy of the state to cooperate fully with Indian tribes and tribal citizens in Iowa in order to ensure that the intent and provisions of the federal Indian Child Welfare Act are enforced. . . . The state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with the federal Indian Child Welfare Act and other applicable law, designed to prevent the child’s voluntary or involuntary out-of-home placement and, whenever such placement is necessary or ordered, by placing the child, whenever possible, in a foster home, adoptive home, or other type of custodial placement that reflects the unique values of the child’s tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child’s tribe and tribal community.

Id. (emphasis added). The Iowa Legislature enacted the Iowa ICWA to fulfill goals

similar to the federal counterpart, namely, to protect tribal relations and the best

interests of the child by promoting practices that are either designed to prevent

removal or out-of-home placement, or if such removal or placement becomes

necessary, do it in a way that can help the child establish and maintain a

relationship with his or her tribal culture and heritage. Section 232B.2 also

emphasizes that Iowa is committed to following the federal ICWA and “other

applicable law.” Id. 22

The Iowa ICWA has a provision related to the best interests of the child

that is consistent with the overall purpose of preserving Native American culture

and heritage. Specifically, section 232B.3 defines best interests of the child as:

the use of practices in accordance with the federal Indian Child Welfare Act, this chapter, and other applicable law, that are designed to prevent the Indian child’s voluntary or involuntary out- of-home placement, and whenever such placement is necessary or ordered, placing the child, to the greatest extent possible, in a foster home, adoptive placement, or other type of custodial placement that reflects the unique values of the child’s tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the Indian child’s tribe and tribal community.

Id. § 232B.3(2) (emphasis added). Clearly, under the Iowa definition, best

interests of the child refers to practices designed to promote the establishment

and maintenance of the relationship between the child and the tribal community.

Specifically, the best interests of the child is to be determined by the use of

practices “in accordance with the federal Indian Child Welfare Act.” Id. Plainly,

the Iowa statute is designed to operate in tandem with, and not in opposition to,

related federal law.

2. Provision related to transfer of jurisdiction in Iowa ICWA. Iowa Code

section 232B.5 relates to the transfer of jurisdiction from state courts to tribal

courts in Indian child welfare matters. That section provides that “[t]he federal

Indian Child Welfare Act and this chapter are applicable without exception in

any child custody proceeding involving an Indian child.” Id. § 232B.5(2). Further,

the Iowa ICWA provides procedural protections to the Indian parents and their

tribes, such as a presumption of Indian child identity and provisions for timely 23

and sufficient notice not explicitly present in the federal ICWA. See id.

§ 232B.5(3)–(9).

On the question of transfer of jurisdiction, Iowa Code section 232B.5(10)

states:

10. 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.

Note that under the statute, the persons entitled to object are limited to the

parents and do not expressly include the child or the child’s representative. Any

party can challenge whether good cause should prevent transfer under section

232B.5(13), but only the parents have a right to object to a transfer request.

In addition to limiting who may object, the Iowa ICWA limits what might

amount to good cause to deny transfer:

13. 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:

....

(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 24

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.

Id. § 232B.5(13) (emphasis added). Assuming “only” means “only,” it is clear that

under the Iowa ICWA, transfer to tribal court is to occur unless a qualified person

objects or there is good cause as narrowly allowed by this section.

D. Relevant Iowa Caselaw. There are two relevant Iowa cases that merit

discussion. The first is In re N.V., 744 N.W.2d 634. This court in In re N.V.

recognized that that Iowa Code section 232B.5(10) and (13) does not provide for

a “best interests” of the child exception to transfer. Id. at 638. Second, the In re

N.V. court recognized that the Iowa ICWA does not use best interests of the child

in the traditional sense. Id. Instead, In re N.V. declared that “it is in a child’s best

interest to place him or her in a home that will preserve the unique values of the

child’s tribal culture and assist the child in establishing relationships with the

tribe and tribal community.” Id. at 638–39.

If statutory interpretation were the end all and be all, In re N.V. would

dispose of the case. Still, there is a constitutional overlay not considered in

In re N.V. Specifically, does the statute, as interpreted in In re N.V., satisfy

procedural and substantive due process?

These constitutional issues were not presented in In re N.V., but they were

presented to the court of appeals in the subsequent case of In re J.L., 779 N.W.2d

481. The juvenile court and the court of appeals both relied on In re J.L. in this

matter. 25

In In re J.L., the state filed a petition to terminate parental rights with

respect to three children. Id. at 484. The Winnebago Tribe of Nebraska intervened

in the proceeding and filed a motion to transfer the case to tribal court. Id. The

children’s guardian ad litem objected to the transfer. Id. The guardian ad litem

asserted that the children could object to the transfer and that the juvenile court

could consider the best interests of the children in determining whether to

transfer the case to tribal court. Id. The guardian ad litem argued that if the Iowa

ICWA precluded the children from contesting the transfer, the statute violated

their procedural due process. Id. at 488. Further, the guardian ad litem asserted

that if the Iowa ICWA precluded the juvenile court from considering the

children’s best interests in determining the transfer issue, the statute violated

their substantive due process. Id.

In re J.L. began its analysis by canvassing the relevant federal and Iowa

statutory provisions. Id. at 485–86. With respect to the federal ICWA, the In re

J.L. court noted that under BIA guidelines, “any party,” apparently including

children, could object. Id. at 486. Further, under the federal law, In re J.L.

recognized a split in the caselaw on the question of whether a state court could

consider the best interests of the child in determining whether to transfer a case

to tribal court. See, e.g., In re Appeal in Maricopa Cnty. Juv. Action No. JS–8287,

828 P.2d 1245, 1251 (Ariz. Ct. App. 1991); In re Robert T., 246 Cal. Rptr. 168,

175 (Ct. App. 1988); In re Adoption of T.R.M., 525 N.E.2d 298, 308 (Ind. 1988);

In re N.L., 754 P.2d 863, 869 (Okla. 1988); In re J.L., 654 N.W.2d 786, 792–93

(S.D. 2002) (per curiam). But see People In re J.L.P., 870 P.2d 1252, 1258 (Colo. 26

App. 1994); In re Armell, 550 N.E.2d 1060, 1065–66 (Ill. App. Ct. 1990); C.E.H.

v. L.M.W., 837 S.W.2d 947, 953–54 (Mo. Ct. App. 1992); In re A.B., 663 N.W.2d

625, 633–34 (N.D. 2003).

Turning to the Iowa ICWA, however, In re J.L. noted the statute took a

narrower approach than federal law. First, it noted that under

section 232B.5(10) there is no provision for children to object to transfer. In re

J.L., 779 N.W.2d at 487. Further, the In re J.L. court observed that under section

232B.5(13), there are “only” four grounds to deny a transfer petition for good

cause, which do not include “best interests” of a child. Id.

Deciding that the provisions were overly limiting, the In re J.L. court found

that Iowa Code section 232B.5(10) violated the children’s procedural due process

rights because it did not allow them to object to a transfer motion or otherwise

participate in a transfer proceeding. Id. at 488–89.

The In re J.L. court then turned to the question of whether the children

could assert that transfer to tribal court was not in their best interests. Id. at

491. It noted that “the children’s interest in familial association” had been

recognized as “a fundamental liberty interest” protected by the Due Process

Clause. Id. The court of appeals next considered whether the Iowa ICWA

provisions “only” permitting other matters to be raised in a transfer proceeding

was narrowly tailored to serve a compelling state interest. Id. at 490–91. The In

re J.L. court noted that by completely prohibiting children from asserting their

rights, the statute places the rights of the tribe above the rights of the Indian

child. Id. at 491. As a result, it concluded that the Iowa limitation on the grounds 27

of transfer violated the substantive due process right of children to assert their

best interests in a transfer proceeding. Id. at 492.

The In re J.L. court closed by asserting that its holding did not undermine

the policies of either the Iowa or federal ICWA, because the federal ICWA was

“not designed to completely prohibit consideration of a child’s circumstances or

rights.” Id. The court in In re J.L. asserted that the statute evidences a dual

purpose, to protect the best interests of the child and to preserve the Native

American culture, and it emphasized that neither the Iowa nor federal ICWA

suggested the children’s rights should be eliminated in favor of federal rights. Id.

V. Did the Juvenile Court Properly Deny Transfer to Tribal Court?

A. Introduction. Both Father and the Tribe claim the juvenile court erred

in denying their separate requests to transfer jurisdiction of the child-welfare

cases to the tribal court. The Tribe questions the right of the children’s guardian

ad litem to object to the transfer and, even if allowed, maintains there was not

good cause to deny the request of Father and the Tribe. Applying the standard

outlined in both 25 U.S.C. § 1911(b) and Iowa Code section 232B.5(13), Father

and the Tribe argue that none of the permissible criteria for good cause to deny

transfer to tribal court has been met.

Father also asserts that In re J.L. was wrongly decided. According to

Father, the purpose of the ICWA statutes was to address the alarmingly high

rate of Native American children being removed from the home. See Holyfield,

490 U.S. at 32. The decision in In re J.L., according to Father, is an obstacle to

achieving the statutory goal. 28

The Tribe offers a slightly different perspective. The Tribe asserts that

perhaps at some point the children may have a due process interest, but not in

a transfer proceeding. The only question in the transfer decision is which forum

is going to handle the substantive issues, not the merits of the substantive issues

themselves. Thus, the reasoning in In re J.L. does not apply to a transfer

proceeding.

In response, the guardian ad litem argues that In re J.L. gave children both

substantive and procedural due process rights to voice their objection on the

transfer of jurisdiction. In re J.L., 779 N.W.2d at 489. Additionally, the guardian

ad litem claims that the Tribe’s motion to transfer came in too late, suspecting

that the Tribe only wanted to transfer jurisdiction after the State had filed its

petition for termination of parental rights. The guardian ad litem thus echoes the

finding of the juvenile court that the effort by the Tribe to transfer the case came

“at an advanced stage” of the proceedings.

The guardian ad litem asserts that in situations where the “child’s best

interests may override tribal or family interest . . . specific preferences of the tribe

or family should not be followed.” In re D.S., 806 N.W.2d at 472. Most of guardian

ad litem’s arguments focus on the placement of both children, believing that it

would be in the best interests of both T.F.s to remain in the house of the current

foster family, given evidence was presented at the motion for transfer hearing

that the Tribe was not aware of the services or needs of each individual child, or

the parents. The guardian ad litem further argues that the Tribe fails to meet its

burden on the motion to transfer. Lastly, the guardian ad litem urges the court 29

to uphold In re J.L., believing that “[i]n failing to allow Indian children to do so,

the Tribe’s rights would supersede the rights of Indian children to have safety,

stability, and permanency. Such an outcome would have grave consequences for

these children in interest, as well as other Indian children involved in CINA or

TPR proceedings.”

Finally, the State asserts that Father’s appeal was not timely. In addition,

the State maintains the appeal of both Father and the Tribe were untimely

because the order denying transfer was a final order that was not appealed in a

timely fashion. The State takes no position, however, on the questions of whether

the children may challenge a motion to transfer and whether the best interests

of the children may be considered in the resistance to transfer.

B. Discussion.

1. Does the refusal to consider the best interests of the child violate

substantive due process? As noted above, the gist of In re J.L. is that under both

federal and Iowa ICWA, because children are not permitted to resist transfer to

tribal court on the ground that such a transfer would not be in their best

interests, the statutes violated substantive due process. In re J.L., 779 N.W.2d

at 492. In order to determine the validity of the holding in In re J.L., we must

resolve two questions. The first statutory question is whether, under the ICWA

statutes, the child is allowed to challenge transfer to tribal court based on a best

interests claim. If the answer to this statutory question is no, a constitutional

question arises. Namely, if the ICWA statutes do not permit a child to raise a

best interests claim in a transfer proceeding, does such a restriction violate 30

substantive due process? The court of appeals in In re J.L. answered “no” to the

statutory question of whether a child could raise a best interests challenge to

transfer to tribal court and “yes” to the question of whether substantive due

process was violated. We agree with the court of appeals on the statutory

question, but find that the statutes so interpreted do not violate substantive due

process.

State courts have struggled with the statutory question of whether federal

or state ICWA statutes permit a child to raise a best interests challenge to

transfer to tribal courts. In In re N.V., 744 N.W.2d 634, we answered the

question. After surveying the terms of the federal and state ICWA statutes, we

concluded that the statutes did not permit a child to challenge transfer on best

interests grounds. Id. at 638–39.

A number of other courts agree with our position. However, what is

important is not the mere fact of agreement, but the reasoning employed. For

instance, in In re A.B., 663 N.W.2d at 633–34, the North Dakota Supreme Court

stated:

Although one of the goals of ICWA is to protect the best interests of an Indian child, the issue here is the threshold question regarding the proper forum for that decision. We agree with those courts that have concluded the best interest of the child is not a consideration for the threshold determination of whether there is good cause not to transfer jurisdiction to a tribal court.

(Citations omitted.) The essential point in In re A.B. is that the transfer question

is a preliminary, jurisdictional question. In In re Zylena R., the Nebraska

Supreme Court overruled its precedent and held that “recognizing best interests

as ‘good cause’ for denying transfer permits state courts to decide that it is not 31

in the best interests of Indian children to have a tribal court determine what is

in their best interests.” 825 N.W.2d 173, 186 (Neb. 2012). As similarly observed

by an Illinois appellate court, “[C]onsiderations involving the best interests of the

child are relevant not to determine jurisdiction but to ascertain placement.” In

re Armell, 550 N.E.2d at 1065. On a related but somewhat different note, a Texas

appellate court observed that applying the best interests standard to transfer

decisions would “defeat[] the very purpose for which the ICWA was enacted, in

that, it allows Anglo cultural biases into the analysis.” Yavapai-Apache Tribe v.

Mejia, 906 S.W.2d 152, 169 (Tex. App. 1995); see also People In re J.L.P., 870

P.2d at 1257–58 (concluding that adoption of best interests of child would defeat

the purpose of ICWA); C.E.H., 837 S.W.2d at 953–54 (agreeing with the In re

Armell court that best interests of the child considerations are inapplicable to

ICWA’s jurisdictional analysis of transfer); In re Adoption of Halloway, 732 P.2d

962, 971–72 (Utah 1986) (concluding that issue of bonding and placement of the

child are not proper considerations when deciding jurisdiction). But see In re

T.S., 801 P.2d 77, 80 (Mont. 1990) (holding that best interests of the child test

will be applied in determining good cause to transfer); In re Adoption of S.W., 41

P.3d 1003, 1011–14 (Okla. Civ. App. 2001) (deciding best interests of the child

is relevant in deciding whether to transfer jurisdiction).

Under the BIA guidelines, “good cause not to transfer the proceeding may

exist if . . . [t]he Indian child is over twelve years of age and objects to the

transfer.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.

Reg. at 67591. But here, there are no objecting children over the age of twelve. 32

Thus, at this stage, the proper question is purely a jurisdictional one: which

tribunal should handle the matter. See In re Zylena R., 825 N.W.2d at 184–86.

As noted in our discussion of whether an appeal from an order denying transfer

is interlocutory, the question of good cause to prevent transfer invokes what has

been called a “modified forum non conveniens” claim. The primary consideration

is whether or not the case can be tried in tribal courts without undue hardship

to the parties and witnesses. See C.E.H., 837 S.W.2d at 953–54 (citing Chester

Cnty. Dep’t of Soc. Servs. v. Coleman, 399 S.E.2d 773, 775 (S.C. 1990)

(per curiam)). In the transfer decision, the best interests of the child has no

bearing.

Aside from the statutory analysis we discussed in In re N.V., prematurely

including the best interests of the child in a jurisdictional discussion would risk

“alter[ing] the focus of the case.” Mejia, 906 S.W.2d at 170. “[T]he issue becomes

not what judicial entity should decide custody, but the standard by which the

decision itself is made.” Id. Further, doing so would “negate[] the concept of

‘presumptively tribal jurisdiction’ over Indian children.” In re Zylena R., 825

N.W.2d at 186.

In short, there can be no substantive due process violation arising from a

statute that refuses to allow a party to present on an issue irrelevant to the

proceeding. To that extent, we overrule the holding of In re J.L.

As a result, we are free to apply the statutory provisions of ICWA as

interpreted in In re N.V. Turning our attention back to the present case, the Tribe

petitioned to transfer the case per Iowa Code section 232B.5(10) on January 30, 33

2020. Absent objection from either parent, the juvenile court must transfer the

case unless a challenging party presents good cause to overcome the Tribe’s

presumptive jurisdiction under section 232B.5(13). Under section 232B.5(13)(c),

the Iowa ICWA requires a similar analysis to forum non conveniens, finding good

cause to deny when circumstances exist where there would be an undue

hardship to the parties and the tribal court unable to mitigate the hardship. Iowa

Code § 232B.5(13).

Records show that no such undue hardship exists in this case. The Tribe

was willing and able to use telecommunication technology to conduct hearings.

They have been using similar technology already. Moreover, the Tribe is not

geographically remote from the parties involved as to constitute a hardship as

the parties and the juvenile court are only 170 miles away from the tribal court

in Macy, Nebraska. A two hour distance would not be considered hardship under

section 232B.5(13)(c).

In conclusion, if there is no objecting child above the age of twelve, we hold

that the transfer provisions of ICWA which do not permit a child from raising the

best interests of the child to oppose transfer does not violate substantive due

2. Burden of proof. According to the BIA guidelines, the burden of

establishing good cause to deny a transfer is upon the party opposing the

transfer. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.

Reg. at 67591. While it is true that BIA guidelines are not binding, they are

persuasive. Batterton v. Francis, 432 U.S. 416, 425–26 (1977) (noting guidelines 34

are accorded great weight); In re N.V., 744 N.W.2d at 638; see also In re Junious

M., 193 Cal. Rptr. 40, 43 n.7 (Ct. App. 1983) (noting guidelines entitled to “great

weight”); In re H.D., 729 P.2d 1234, 1238 (Kan. Ct. App. 1986) (noting guidelines

establish pretrial requirements); In re Dependency & Neglect of N.A.H., 418

N.W.2d 310, 311 (S.D. 1988) (per curiam) (holding “better practice” to follow the

guidelines).

Here, the guardian ad litem as the party opposing the transfer of

jurisdiction to the Tribe bears the burden of overcoming the Tribe’s presumptive

jurisdiction and establishing good cause not to transfer the matter. In re Armell,

550 N.E.2d at 1064. Based upon our review of the record, the guardian ad litem

failed to establish good cause to prevent transfer to the tribal court under the

ICWA statutory and regulatory criteria.

3. Advanced stage of the proceeding. The guardian ad litem and the State

also raise an alternative argument for establishing good cause, arguing that the

Tribe’s petition to transfer was filed at an advanced stage of the proceedings. The

guardian ad litem and the State assert that there was a significant delay between

the time the Tribe intervened in the CINA proceedings and the motion to transfer

jurisdiction. The guardian ad litem and the State claim that the Tribe waited

until the termination-of-parental-rights petition was filed and that to permit a

transfer at this late stage of the proceedings would adversely affect the children’s

best interests.

The BIA guidelines provide that good cause not to transfer a case to a tribal

court may exist if the request to transfer is made “at an advanced stage . . . and 35

the petitioner did not file the petition promptly after receiving notice of the

hearing.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.

Reg. at 67591. BIA guidelines further state: “ ‘[A]dvanced stage’ refers to the

proceeding, rather than the case as a whole. Each individual proceeding will

culminate in an order, so ‘advanced stage’ is a measurement of the stage within

each proceeding.” Indian Child Welfare Act Proceedings, 81 Fed. Reg. at 38825.

Consistent with the above language, the BIA regulations distinguish

between “foster-care” and “termination” proceedings. 25 C.F.R. § 23.115(b).

Thus, the beginning of a termination proceeding begins when the petition for

termination is filed, not at some earlier point. See In re Welfare of the Child. of

R.M.B., 735 N.W.2d 348, 352 (Minn. Ct. App. 2007); In re Zylena, R., 825 N.W.2d

at 182; In re A.B., 663 N.W.2d at 632; People In re C.R.W., 962 N.W.2d 730, 744–

46 (S.D. 2021).

This distinction makes sense. In a foster care proceeding, the custodial

arrangements are often temporary and subject to change. But when a

termination petition is field, the Tribe’s interest is much greater. It is reasonable

for the Tribe to simply participate in proceedings prior to the filing of a

termination petition and then seek to transfer when the stakes are escalated by

the filing of a termination petition. See In re Welfare of the Child. of R.M.B., 735

N.W.2d at 352; In re Zylena R., 825 N.W.3d at 183.

Here, the petition for termination of parental rights was filed on

January 23, 2020. The Tribe moved to transfer the case on January 30. 36

Therefore, even under the BIA guidelines, the motion to transfer jurisdiction did

not come at the eleventh hour of the termination proceedings.

Because we hold that the denial of transfer of jurisdiction was improper,

we do not proceed to the discussion on the juvenile court’s decision to terminate

Father’s parental rights.

VI. Conclusion.

In an ICWA proceeding, the United States Supreme Court observed that

“we must defer to the experience, wisdom, and compassion of the . . . tribal

courts to fashion an appropriate remedy” in Indian child welfare cases. Holyfield,

490 U.S. at 54 (quoting In re Adoption of Halloway, 732 P.2d at 972). These

observations apply in this case.

For the foregoing reasons, we hold that the juvenile court erred in denying

the Tribe’s motion to transfer jurisdiction. The juvenile court’s order on

termination of Father’s parental rights is vacated. The case is remanded to the

juvenile court for transfer to the tribal court.

DECISION OF COURT OF APPEALS VACATED; JUVENILE COURT

JUDGMENT REVERSED AND REMANDED WITH INSTRUCTIONS.

Christensen, C.J., and Mansfield and Oxley, JJ., join this opinion.

McDermott, J., files a concurrence in part and dissent in part, in which

Waterman and McDonald, JJ., join. 37

#21–0243, In re T.F. & T.F.

McDERMOTT, Justice (concurring in part and dissenting in part).

Two parties seek review of the juvenile court’s ruling in this appeal: the

Omaha Tribe of Nebraska & Iowa (Tribe) and the children’s father. The Tribe

timely filed its appeal, and I join in full the majority’s opinion holding in the

Tribe’s favor that the juvenile court erred in denying the Tribe’s motion to

transfer jurisdiction to the tribal court.

But the father filed his notice of appeal after the jurisdictional deadline.

The majority took up the father’s appeal nonetheless under our burgeoning

“delayed appeal” jurisprudence in juvenile cases. I respectfully dissent from the

court’s grant of the father’s delayed appeal for all the reasons stated in my

concurrence in part and dissent in part in In re A.B., 957 N.W.2d 280, 301–05

(Iowa 2021) (McDermott, J., concurring in part and dissenting in part). Appeal

deadlines, it bears repeating, are “mandatory and jurisdictional.” Root v. Toney,

841 N.W.2d 83, 87 (Iowa 2013) (quoting In re Marriage of Mantz, 266 N.W.2d

758, 759 (Iowa 1978)). We lack jurisdiction to hear the father’s appeal and should

dismiss it without reaching the merits of his argument. In re J.H., 952 N.W.2d

157, 165 (Iowa 2020) (dismissing a mother’s appeal from a juvenile court ruling

“because it was untimely”). For these reasons, I concur in the majority’s opinion

as to the Tribe’s appeal but dissent as to the father’s appeal.

Waterman and McDonald, JJ., join this concurrence in part and dissent

in part.