In re the Interest of Z.K., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 21-0324
Filed June 16, 2021

IN THE INTEREST OF Z.K.,
Minor Child,

Z.K., Father,
Appellant,

J.K., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Mary Jane

Sokolovske, Judge.

The mother and father separately appeal the termination of their parental

rights to their child. AFFIRMED ON BOTH APPEALS.

Dean A. Fankhauser of Vriezslaar, Tigges, Edington, Bottaro, Boden &

Lessman, L.L.P., Sioux City, for appellant father.

Teresa Ann O’Brien, Sioux City, for appellant mother.

Thomas J. Miller, Attorney General, and Ellen Ramsey-Kacena, Assistant

Attorney General, for appellee State.

Michelle M. Hynes of Juvenile Law Center, Sioux City, attorney and

guardian ad litem for minor child.

Considered by Vaitheswaran, P.J. and Tabor and Ahlers, JJ.
2

AHLERS, Judge.

The mother and the father separately appeal the termination of their

parental rights to Z.K., born in November 2016. The juvenile court adjudicated

Z.K. a child in need of assistance (CINA) on February 2, 2020. A termination

hearing was held November 18 and December 3. The court issued the termination

order on February 25, 2021.

“We review proceedings terminating parental rights de novo.” In re A.S., 906

N.W.2d 467, 472 (Iowa 2018) (quoting In re A.M., 843 N.W.2d 100, 110 (Iowa

2014)). “We are not bound by the juvenile court’s findings of fact, but we do give

them weight, especially in assessing the credibility of witnesses.” Id. (quoting In

re D.W., 791 N.W.2d 703, 706 (Iowa 2010)).

I. Indian Child Welfare Act

The juvenile court determined the Indian Child Welfare Act (ICWA) does not

apply to this proceeding because the record does not show the child is an Indian

child under ICWA. See generally 25 U.S.C. § 1902 (“[I]t is the policy of this Nation

to protect the best interests of Indian children and to promote the stability and

security of Indian tribes and families by the establishment of minimum Federal

standards for the removal of Indian children from their families and the placement

of such children in foster or adoptive homes which will reflect the unique values of

Indian culture . . . .”); Iowa Code § 232B.2 (2020) (“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.”).

Both parents appeal this determination.
3

“ICWA applies to child custody proceedings involving an Indian child.” In re

N.N.E., 752 N.W.2d 1, 7 (Iowa 2008). ICWA provides minimum standards for the

removal and placement of Indian children. Id. An “Indian child” is a child “that an

Indian tribe identifies as a child of the tribe’s community.” Iowa Code § 232B.3(6).

“[I]t is better to err on the side of . . . examining thoroughly whether the child is an

Indian child.” In re R.E.K.F., 698 N.W.2d 147, 149 (Iowa 2005).

The federal regulations provide guidance to the states in applying ICWA:

(a) State courts must ask each participant in an emergency or
voluntary or involuntary child-custody proceeding whether the
participant knows or has reason to know that the child is an Indian
child. The inquiry is made at the commencement of the proceeding
and all responses should be on the record. State courts must instruct
the parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian child.
(b) If there is reason to know the child is an Indian child, but
the court does not have sufficient evidence to determine that the child
is or is not an “Indian child,” the court must:
(1) Confirm, by way of a report, declaration, or testimony
included in the record that the agency or other party used due
diligence to identify and work with all of the Tribes of which there is
reason to know the child may be a member (or eligible for
membership), to verify whether the child is in fact a member (or a
biological parent is a member and the child is eligible for
membership); and
(2) Treat the child as an Indian child, unless and until it is
determined on the record that the child does not meet the definition
of an “Indian child” in this part.

25 C.F.R. § 23.107 (2020).

There is no dispute that no tribe claimed the child or the parents as

members of its community at the time of the termination hearing. Consistent with

the court’s duty to identify ICWA issues “at the commencement of the proceeding,”

the State filed a motion to determine the applicability of ICWA at the same time it

filed a motion for CINA adjudication, and notices were mailed to the relevant
4

authorities. See id. § 23.107(a). An October 2, 2019 letter from the Standing Rock

Sioux Tribe and an October 21, 2019 letter from the Oglala Sioux Tribe both state

the child is not a member of the respective tribe and is not eligible for enrollment.

These letters confirmed the child is not an “Indian child.” See id. § 23.107(b)(1).

Nevertheless, the ICWA director for the Oglala Sioux Tribe testified at the

termination hearing, stating he believed the child was eligible for enrollment with

the Tribe based on the mother’s ancestry and the Tribe intended to intervene in

the proceeding. However, the ICWA director acknowledged he does not have

authority to determine enrollment in the Tribe, and the Tribe did not file a motion

to intervene before the termination hearing.1 Furthermore, the ICWA director was

inconsistent as to whether the child was even eligible for enrollment in the Tribe,

at one time acknowledging the child’s ancestry may instead be with the Standing

Rock Sioux Tribe, which he does not represent. The ICWA director’s testimony on

the eve of termination is simply not enough to overcome the specific written

statements from the tribes already in the record. We agree with the district court

that the record available at the time of the termination hearing does not establish

the child is an “Indian child.” See Iowa Code § 232B.3(6). Therefore, ICWA does

not apply to this proceeding.

Before we leave this issue, we note our decision does not preclude a tribe

from intervening in the child’s future placement. As the juvenile court stated during

1 The transcript shows the mother attempted to introduce as an exhibit a motion to
intervene from the Tribe that identified another woman as the mother. The juvenile
court did not admit the document. To the extent the parents argue the court should
have admitted the Tribe as an intervenor based on this document, we agree the
Tribe was not an intervenor. See Iowa R. Civ. P. 1.407 (setting the substantive
and procedural requirements for intervention).
5

the termination hearing, additional evidence the child is an Indian child “could come

as late as an adoption hearing.” If appropriate, future tribal intervention is

consistent with ICWA’s stated purpose of placing a child in an environment “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. 232B.2. Our decision

only finds that, based on the record available at the time of the termination hearing,

the record does not establish the child is an “Indian child.”

II. The Parents’ Progress

Both parents argue the juvenile court erred in terminating their parental

rights “despite the progress [they] made during the pendency of the case.”2 The

State asserts that simply raising “progress” does not present an issue for our

consideration on appeal.

Generally, “[t]ermination of parental rights under chapter 232 follows a

three-step analysis”: the statutory grounds for termination, the best interests of the

child, and permissive statutory factors. In re D.W., 791 N.W.2d 703, 706–07 (Iowa

2010) (citing Iowa Code § 232.116; In re P.L., 778 N.W.2d 33, 39 (Iowa 2010)). “A

broad, all encompassing argument is insufficient to identify error in cases of de

novo review.” In re C.B., 611 N.W.2d 489, 492 (Iowa 2000). We simply cannot

identify a reviewable issue in the parents’ references to their “progress,” and we

will not craft an argument on their behalf. Hyler v. Garner, 548 N.W.2d 864, 876

2 The father raises the parents’ progress on behalf of himself and the mother. The
father may not raise arguments on behalf of the mother. In re D.G., 704 N.W.2d
454, 460 (Iowa Ct. App. 2005). Therefore, we do not consider the father’s
arguments about the mother’s progress.
6

(Iowa 1996) (“[W]e will not speculate on the arguments [a party] might have made

and then search for legal authority and comb the record for facts to support such

arguments.”).

Reading the parties’ arguments broadly, the parties at most question

whether the State proved the child would suffer “adjudicatory harm” if placed in

their care. This reference may invoke one element of at least one of the statutory

grounds for termination. See Iowa Code § 232.116(1)(f)(4) (allowing the juvenile

court to terminate parental rights if it finds “the child cannot be returned to the

custody of the child’s parents as provided in section 232.102,” among other

required findings). However, the juvenile court terminated both parents’ parental

rights under Iowa Code section 232.116(1)(b), (f), (g), and (l). Not all of these

grounds require the State to prove the child would suffer adjudicatory harm in the

parents’ care. In particular, section 232.116(1)(b) only requires the juvenile court

to find “clear and convincing evidence that the child has been abandoned or

deserted” in order to terminate parental rights. “When the juvenile court terminates

parental rights on more than one statutory ground, we may affirm the juvenile

court's order on any ground we find supported by the record.” In re A.B., 815

N.W.2d 764, 774 (Iowa 2012). Therefore, even if we were to read the parents’

references to their “progress” as a partial challenge to the statutory grounds for

termination, we would reject the parents’ challenge because they waived any

argument on at least one ground for termination. See Iowa R. App.

P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed

waiver of that issue.”).
7

Furthermore, we are not convinced the parents have made meaningful

progress. Both parents have long-standing issues with substance abuse. The

mother has previously had her parental rights terminated—voluntarily or

involuntarily—to seven other children due at least in part to substance abuse. The

mother now claims she has been sober since before removal and she is regularly

attending treatment and therapy for her substance-abuse and mental-health

issues. However, the mother provided no documentation or other evidence to

support her self-serving claims of sobriety, and she failed to regularly meet with

the Iowa Department of Human Services (DHS) so they could observe her

recovery efforts. The father has failed to complete a substance-abuse evaluation,

and he acknowledges he relapsed on October 24, weeks before the termination

hearing.

Because both parents failed to present a reviewable issue arising from their

claims of progress, we find any argument on this issue waived.

III. Efforts Toward Reunification

Both parents argue the DHS failed to make the required efforts toward

reunification. Specifically, the parents argue the heightened requirements of ICWA

apply before the State may terminate parental rights. See Iowa Code § 232B.5(19)

(requiring the State to show “active efforts” toward reunification before terminating

parental rights to an Indian child). However, as explained above, the record does

not show the child is an “Indian child,” and thus ICWA does not apply to this

proceeding.

The State is still required to provide “reasonable efforts” toward

reunification. See In re C.H., 652 N.W.2d 144, 147 (Iowa 2002) (“The State must
8

make reasonable efforts to provide services to a parent before termination

proceedings may be instituted.”). To the extent the parents challenge whether the

State made reasonable efforts, a parent must request additional or alternative

services “in an appropriate proceeding or at the appropriate time. In general, if a

parent fails to request other services at the proper time, the parent waives the issue

and may not later challenge it at the termination proceeding.” Id. at 148. “[V]oicing

complaints regarding the adequacy of services to a social worker is not sufficient.

A parent must inform the juvenile court of such challenge.” Id. While the parents

testified they requested additional services from the service providers, they failed

to make their request to the juvenile court prior to the termination proceeding.

Therefore, they have waived any argument on reasonable efforts. See id.

Additionally, we note the DHS provided multiple services to the parents in both this

proceeding and the mother’s prior termination proceedings, including substance-

abuse and mental-health treatment and counseling, and the parents failed to stay

in regular contact with the DHS for this proceeding to take full advantage of the

offered services.

IV. Conclusion

We find the record at the time of the termination hearing does not show

ICWA applies to this proceeding. Furthermore, the parents failed to present a

reviewable issue arising from their claims of progress, and the parents waived any

claim for additional or alternative services. Therefore, we affirm the termination of

both parents’ parental rights.

AFFIRMED ON BOTH APPEALS.

Vaitheswaran, P.J., concurs, Tabor, J., dissents.
9

TABOR, Judge (dissenting).

For child-welfare cases, our legislature has adopted a policy of cooperation

with tribes to ensure that an Indian child, whenever possible, lives in a home that

“reflects the unique values of the child’s tribal culture.” Iowa Code § 232B.2 (2020)

(clarifying state policy and procedures for implementing federal Indian Child

Welfare Act (ICWA)).3 The legislative goal is to assist the child “in establishing,

developing, and maintaining a political, cultural, and social relationship with the

child’s tribe and tribal community.” Id. The first step in implementing that policy is

deciding whether the involved child is a tribal member or eligible for membership.

Id. § 232B.4; In re R.E.K.F., 698 N.W.2d 147, 151 (Iowa 2005) (“The provisions of

the Iowa ICWA do not apply until the court determines the children are ‘Indian’ as

defined in the Iowa ICWA.”). The majority decided Z.K. was not an Indian child. I

respectfully disagree.

“Indian child” means an unmarried person under age eighteen who is either

(a) a member of an Indian tribe or (b) is eligible for membership and is the biological

child of a member of an Indian tribe. 25 U.S.C. § 1903(4); see In re N.N.E., 752

N.W.2d 1, 7 (Iowa 2008) (recalling that In re A.W., 741 N.W.2d 793, 810 (Iowa

2007), held including “ethnic Indians” who were ineligible for tribal membership

was an unconstitutional aspect of the definition of Indian child in section

232B.3(6)).

3 The federal legislation emerged from rising concern over “the consequences to
Indian children, Indian families, and Indian tribes of abusive child welfare practices
that resulted in the separation of large numbers of Indian children from their
families and tribes through adoption or foster care placement, usually in non-Indian
homes.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989).
10

How is a child’s Indian status determined? ICWA grants a tribe “conclusive”

authority to identify its members and those eligible for membership:

A written determination by an Indian tribe that a child is a member of
or eligible for membership in that tribe, or testimony attesting to such
status by a person authorized by the tribe to provide that
determination, shall be conclusive. A written determination by an
Indian tribe, or testimony by a person authorized by the tribe to
provide that determination or testimony, that a child is not a member
of or eligible for membership in that tribe shall be conclusive as to
that tribe. If an Indian tribe does not provide evidence of the child’s
status as an Indian child, the court shall determine the child’s status.

Iowa Code § 232B.4(3) (emphasis added); accord R.E.K.F., 698 N.W.2d at 149

(“Whether or not a child is an Indian child is, after all, a question for the tribe to

answer in the first instance. . . . Only if the Indian tribe does not provide evidence

of the child’s status as an Indian child may the juvenile court determine the matter

itself.”). We strictly apply the provisions of this law to protect Indian families. In re

C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010). To that end, if there is doubt

about whether a child is an Indian child, “it is better to err on the side of giving

notice to the tribe and examining thoroughly whether the child is an Indian child.”

R.E.K.F., 698 N.W.2d at 149.

Admittedly, this case features mixed messages from the Oglala Sioux Tribe

on Z.K.’s eligibility for membership. In October 2019, Jason Little, then ICWA

director for the Oglala Sioux Tribe at the Pine Ridge Reservation in South Dakota,

sent notice to the Woodbury County Attorney’s office that Z.K. was not a member

or eligible to be enrolled as a member of the tribe. But at the termination hearing

in November 2020, David Michael Red Cloud, the new ICWA director for the Oglala

Sioux, testified that Z.K. was eligible for enrollment in his tribe. Red Cloud

explained that the tribe removed its former ICWA staff from office in August. Red
11

Cloud testified his predecessor, Little, “never did his due diligence” and “[t]hat’s the

reason why he got fired.” Without a challenge to Red Cloud’s authority to speak

for the tribe at the termination hearing, his testimony that Z.K. is eligible for

membership should have been conclusive under Iowa Code section 232B.4(3).

But the State did not accept Red Cloud’s attestation that Z.K. is an Indian

child.4 Instead, the assistant county attorney cross-examined Red Cloud about

Z.K.’s mother being enrolled in the Standing Rock Sioux Tribe, suggesting that her

status in a different tribe barred Z.K.’s enrollment as an Oglala Sioux. Red Cloud

gave no ground: “the mother is a full-blood Indian. There’s no way you can

determine that the kid is not an Indian. She’s at least a half Native American

regardless if it’s Standing Rock, regardless if it’s Oglala Sioux Tribe. We need the

time to figure this out.” On the time issue, Red Cloud explained that the COVID-

19 pandemic had stalled work at the Bureau of Indian Affairs (BIA). He testified:

“They haven’t done any enrollments since March of 2020.” Red Cloud later

clarified that short of certification by the BIA, the tribe can determine “in-house”

whether someone is eligible for membership. On that prerogative of the tribe to

determine its membership, Red Cloud testified: “[O]ur kids have suffered injustice

for a long time through the court system and been fostered out. So we intervene

on behalf of all cases in regards to anyone eligible to be Oglala Sioux tribal

members.”

4 For reasons that are unclear from the record, the State advocated strongly
throughout this child-welfare case that ICWA should not apply despite evidence
that Z.K.’s maternal relatives are tribal members. In March 2020, the assistant
county attorney filed a nine-page trial brief in support of the State’s request to find
that ICWA did not apply to the termination proceedings.
12

Still, after hearing Red Cloud’s testimony, the juvenile court denied the

tribe’s motion to intervene. The court professed that it did not have “sufficient

information or evidence” to support the motion. In its termination order, the juvenile

court found “ICWA remains not applicable to this child.”

The juvenile court was wrong on both findings. Under section 232B.4(3),

the court did not need to “determine the child’s status” because “a person

authorized by the tribe to provide that determination” did so. After hearing Red

Cloud’s testimony, the court had “conclusive” proof that Z.K. was eligible for

membership in the Oglala Sioux tribe and his mother was a tribal citizen. See Iowa

Code § 232B.4(3). What about the earlier letter indicating Z.K. is not an Indian

child? Even if the letter from the Oglala’s former ICWA director muddied the

waters, the court had—at a minimum—“reason to know” that Z.K. was an Indian

child. See 25 C.F.R. § 23.107(c) (2020) (explaining a state court has reason to

know a child involved in a custody proceeding is an Indian child if it receives that

information from an Indian Tribe). Under those federal regulations, the court

cannot ignore the distinct possibility that ICWA applies to the termination

proceedings but must “[t]reat the child as an Indian child, unless and until it is

determined on the record that the child does not meet the definition.”

Id. § 23.107(b)(2). Here is the relevant directive to state courts:

If there is reason to know the child is an Indian child, but the
court does not have sufficient evidence to determine that the child is
or is not an “Indian child,” the court must:
(1) Confirm, by way of a report, declaration, or testimony
included in the record that the agency or other party used due
diligence to identify and work with all of the Tribes of which there is
reason to know the child may be a member (or eligible for
membership), to verify whether the child is in fact a member (or a
13

biological parent is a member and the child is eligible for
membership) . . .

25 C.F.R. § 23.107(b)(1).

Contrary to that directive, the juvenile court forged ahead without confirming

Z.K.’s status and instead treated him as if he were not an Indian child. In doing

so, the court applied the wrong standard for terminating parental rights. See Iowa

Code § 232B.5(19) (requiring proof of “active efforts” to provide remedial services

to Indian child in termination case). I would reverse the termination order and

remand for further proceedings consistent with Z.K. status as an Indian child.