as: 577 N.W.2d 874)
of Appeals of Iowa.
the Interest of M.N.W. and P.B.S.W., Minor Children,
Feb. 25, 1998.
of Appeals reviews proceedings to terminate parental rights de novo;
may review facts as well as law and adjudicate parents'
reviewing termination of parental rights, primary concern is best interests
of child; Court of Appeals looks at both child's long-range
and immediate interests.
termination of mother's parental rights, she lacked standing to challenge
court's subsequent determination that Indian Child Welfare Act (ICWA) did
not apply to child. Indian Child Welfare Act of 1978,
25 U.S.C.A. § 1903.
child's name reflected Native American heritage, and grandmother stated in
pre-adoptive study that mother had told her that child's father
was part Native American, there was no evidence to substantiate
claim that child was Native American, and therefore Indian Child
Welfare Act (ICWA) was not applicable in termination of parental
rights proceeding. Indian Child Welfare Act of 1978, § 4,
25 U.S.C.A. § 1903.
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.
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.
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
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.
[FN1] 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.
Phoenix Blue Skye are the first and middle names of
the child; we withhold the child's last name for reasons
of confidentiality. We note, however, the last name does not
in any way indicate a Native American heritage.
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.
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).
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 *876
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
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
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 after receipt of
notice by the parent or Indian custodian or the tribe
shall, upon request be granted up to twenty additional days
to prepare for such proceeding.
25 U.S.C. § 1912
(1988 & Supp. I 1997).
Other states have established
it is incumbent upon the party asserting applicability of ICWA to prove
the child meets the criteria under ICWA. See
In Interest of A.G.-G,
899 P.2d 319, 321 (Colo.App.1995); In
re Interest of A.M.,
235 Neb. 506, 455 N.W.2d 572, 573 (1990). Christie would have
the court on it's own motion entertain the possibility that a child is
Native American based on whether the child's name indicated Native American
heritage. This would be left to the discernment of the presiding judge.
While it is true a person's name may reflect heritage, we
cannot assume names are necessarily indicators of heritage, given the
multitude of possible explanations behind name-giving in our society.
Our courts would be asked to use their creative rather than
legal judgment to make such precautionary inquiries.
Contrary to Christie's assertion, we are not creating a "loophole"
in ICWA allowing juvenile courts to proceed without following ICWA
guidelines. To interpret ICWA in a way not clearly contemplated
within its purview is to place an undue burden on
the court. Under these particular facts, there was simply insufficient
information for the issue to be raised by the court.
Moreover, Christie's assertion of the tepid indicators she cites is
not enough to absolve her duty to establish, pursuant to
ICWA, (codified at 25 U.S.C. § 1903)
the "Indian" child is:
any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b)
is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe.
Some evidence must establish the child is Indian. See
In re Matter of N.S.,
474 N.W.2d 96, 99 (S.D.1991). See,
e.g., In Interest of A.G.-G.,
899 P.2d at 322 (holding school records indicating father is
Indian is not sufficient evidence; also stating evidence is not
adequate where parents tell caseworker of their Indian heritage and
no tribal information is available). It does not therefore suffice
that the child may
have a Native American heritage. According to 25 U.S.C. section
1903, the child must be a member of an Indian
tribe or eligible for membership therein and
must also be a biological child of a Native American.
No information was ever given by either Christie or David
that would alert the court or the Department of Human
Services that David may be part Native American. The only
piece of information came in a pre-adoptive home study conducted
regarding the suitability of Christie's mother as an adoptive parent
for Phoenix. In one of her interviews she stated Christie
had told her that David was part Native American. This
information was not even provided by David who would be
in the best position to verify or refute the possibility.
It remains unsubstantiated. The evidence in this record is scant
at best and does not meet the foregoing statutory criteria
to any degree of certainty.
We accordingly affirm the juvenile court.
577 N.W.2d 874