232B.5 - INDIAN CHILD CUSTODY PROCEEDINGS -- JURISDICTION -- NOTICE -- TRANSFER OF PROCEEDINGS.
232B.5 INDIAN CHILD CUSTODY PROCEEDINGS --
JURISDICTION -- NOTICE -- TRANSFER OF PROCEEDINGS.
1. An Indian tribe has jurisdiction exclusive as to this state
over any child custody proceeding held in this state involving an
Indian child who resides or is domiciled within the reservation of
that tribe, except when the jurisdiction is otherwise vested in this
state by existing federal law. If an Indian child is a ward of a
tribal court, the Indian tribe shall retain exclusive jurisdiction,
notwithstanding the residence or domicile of the child.
2. The federal Indian Child Welfare Act and this chapter are
applicable without exception in any child custody proceeding
involving an Indian child. A state court does not have discretion to
determine the applicability of the federal Indian Child Welfare Act
or this chapter to a child custody proceeding based upon whether an
Indian child is part of an existing Indian family.
3. In a child custody proceeding, the court or any party to the
proceeding shall be deemed to know or have reason to know that an
Indian child is involved whenever any of the following circumstances
exist:
a. A party to the proceeding or the court has been informed
by any interested person, an officer of the court, a tribe, an Indian
organization, a public or private agency, or a member of the child's
extended family that the child is or may be an Indian child.
b. The child who is the subject of the proceeding gives the
court reason to believe the child is an Indian child.
c. The court or a party to the proceeding has reason to
believe the residence or domicile of the child is in a predominantly
Indian community.
4. In any involuntary child custody proceeding, including review
hearings following an adjudication, the court shall establish in the
record that the party seeking the foster care placement of, or
termination of parental rights over, or the adoption of an Indian
child has sent notice by registered mail, return receipt requested,
to all of the following:
a. The child's parents.
b. The child's Indian custodians.
c. Any tribe in which the child may be a member or eligible
for membership.
5. If the identity or location of the child's parent, Indian
custodian, or tribe cannot be determined, the notice under subsection
4 shall be provided to the secretary of the interior, who shall have
fifteen days after receipt of the notice to provide the notice to the
child's parent, Indian custodian, and tribe. A foster care placement
or termination of parental rights proceeding involving the child
shall not be held until at least ten days after receipt of notice by
the child's parent, Indian custodian, and tribe, or the secretary of
the interior. Upon request, the child's parent or Indian custodian
or tribe shall be granted up to twenty additional days after receipt
of the notice to prepare for the proceeding.
6. The court shall also establish in the record that a notice of
any involuntary custody proceeding has been sent to the Indian
child's tribe. The tribe may provide notice of the proceeding to any
of the child's extended family members.
7. The notice in any involuntary child custody proceeding
involving an Indian child shall be written in clear and
understandable language and shall include all of the following
information:
a. The name and tribal affiliation of the Indian child.
b. A copy of the petition by which the proceeding was
initiated.
c. A statement listing the rights of the child's parents,
Indian custodians, and tribes and, if applicable, the rights of the
Indian child's family. The rights shall include all of the
following:
(1) The right to intervene in the proceeding.
(2) The right to petition the court to transfer the proceeding to
the tribal court of the Indian child's tribe.
(3) The right to be granted up to an additional twenty days from
the receipt of the notice to prepare for the proceeding.
(4) The right to request that the court grant further extensions
of time.
(5) In the case of an extended family member, the right to
intervene and be considered as a preferred placement for the child.
d. A statement of the potential legal consequences of an
adjudication on the future custodial rights of the child's parents or
Indian custodians.
e. A statement that if the parents or Indian custodians are
unable to afford counsel in an involuntary proceeding, counsel will
be appointed to represent the parents or custodians.
f. A statement that the court may appoint counsel for the
child upon a finding that the appointment is in the best interest of
the child.
g. A statement that the information contained in the notice,
petition, pleading, and other court documents is confidential.
h. A statement that the child's tribe may provide notice of
the proceeding to any of the child's extended family members along
with copies of other related documents.
8. In a voluntary child custody proceeding involving an Indian
child, including but not limited to a review hearing, the court shall
establish in the record that the party seeking the foster care
placement of, termination of parental rights to, or the permanent
placement of, an Indian child has sent notice at least ten days prior
to the hearing by registered mail, return receipt requested, to all
of the following:
a. The child's parents, except for a parent whose parental
rights have been terminated.
b. The child's Indian custodians, except for a custodian
whose parental or Indian custodian rights have been terminated.
c. Any tribe in which the child may be a member or eligible
for membership.
9. The notice in a voluntary child custody proceeding involving
an Indian child shall be written in clear and understandable language
and shall include all of the following information:
a. The name and tribal affiliation of the child.
b. A copy of the petition by which the proceeding was
initiated.
c. A statement listing the rights of the child's parents,
Indian custodians, Indian tribe or tribes, and, if applicable,
extended family members. The rights shall include all of the
following:
(1) The right to intervene in the proceeding.
(2) The right to petition the court to transfer a foster care
placement or termination of parental rights proceeding to the tribal
court of the Indian child's tribe.
(3) In the case of extended family members, the right to
intervene and be considered as a preferred placement for the child.
d. A statement that the information contained in the notice,
petition, pleading, and any other court document shall be kept
confidential.
e. A statement that the child's tribe may provide notice of
the proceeding to any of the child's extended family members along
with copies of other related documents.
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.
11. Notwithstanding entry of an objection to a transfer of
proceedings as described in subsection 10, the court shall reject any
objection that is inconsistent with the purposes of this chapter,
including but not limited to any objection that would prevent
maintaining the vital relationship between Indian tribes and the
tribes' children and would 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.
12. A transfer of proceedings under subsection 10 may be declined
by the tribal court of the Indian child's tribe. If the tribal court
declines to assume jurisdiction, the state court shall reassume
jurisdiction and shall apply all of the following in any proceeding:
a. The requirements of the federal Indian Child Welfare Act.
b. This chapter.
c. The applicable provisions of any agreement between the
Indian child's tribe and the state concerning the welfare, care, and
custody of Indian children.
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:
a. The tribal court of the child's tribe declines the
transfer of jurisdiction.
b. The tribal court does not have subject matter jurisdiction
under the laws of the tribe or federal law.
c. Circumstances exist in which the evidence necessary to
decide the case cannot be presented in the tribal court without undue
hardship to the parties or the witnesses, and the tribal court is
unable to mitigate the hardship by making arrangements to receive and
consider the evidence or testimony by use of remote communication, by
hearing the evidence or testimony at a location convenient to the
parties or witnesses, or by use of other means permitted in the
tribal court's rules of evidence or discovery.
d. An objection to the transfer is entered in accordance with
subsection 10.
14. The Indian child's tribe or tribes and Indian custodian have
the right to intervene at any point in any foster care placement or
termination of parental rights proceeding involving the child. The
Indian child's tribe shall also have the right to intervene at any
point in any adoption proceeding involving the child. Any member of
the Indian child's family may intervene in an adoption proceeding
involving the child for the purpose of petitioning the court for the
adoptive placement of the child in accordance with the order of
preference provided for in this chapter.
15. The state shall give full faith and credit to the public
acts, records, judicial proceedings, and judgments of any Indian
tribe applicable to the Indian child custody proceedings.
16. In any proceeding in which the court determines indigency of
the Indian child's parent or Indian custodian, the parent or Indian
custodian shall have the right to court-appointed counsel in any
removal, placement, or termination of parental rights. The child
shall also have the right to court-appointed counsel in any removal,
placement, termination of parental rights, or other permanency
proceedings.
17. Each party to a foster care placement or termination of
parental rights proceeding involving an Indian child shall have the
right to examine all reports or other documents filed with the court
upon which any decision with respect to the proceeding may be based.
18. Any person or court involved in the foster care, preadoptive
placement, or adoptive placement of an Indian child shall use the
services of the Indian child's tribe or tribes, whenever available
through the tribe or tribes, in seeking to secure placement within
the order of placement preference established in section 232B.9 and
in the supervision of the placement.
19. A party seeking an involuntary foster care placement of or
termination of parental rights over an Indian child shall provide
evidence to the court that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have proved
unsuccessful. The court shall not order the placement or
termination, unless the evidence of active efforts shows there has
been a vigorous and concerted level of casework beyond the level that
typically constitutes reasonable efforts as defined in sections
232.57 and 232.102. Reasonable efforts shall not be construed to be
active efforts. The active efforts must be made in a manner that
takes into account the prevailing social and cultural values,
conditions, and way of life of the Indian child's tribe. Active
efforts shall utilize the available resources of the Indian child's
extended family, tribe, tribal and other Indian social service
agencies, and individual Indian caregivers. Active efforts shall
include but are not limited to all of the following:
a. A request to the Indian child's tribe to convene
traditional and customary support and resolution actions or services.
b. Identification and participation of tribally designated
representatives at the earliest point.
c. Consultation with extended family members to identify
family structure and family support services that may be provided by
extended family members.
d. Frequent visitation in the Indian child's home and the
homes of the child's extended family members.
e. Exhaustion of all tribally appropriate family preservation
alternatives.
f. Identification and provision of information to the child's
family concerning community resources that may be able to offer
housing, financial, and transportation assistance and actively
assisting the family in accessing the community resources.
20. The state of Iowa recognizes that an Indian tribe may
contract with another Indian tribe for supervision regarding
placement, case management, and the provision of services to an
Indian child. Section History: Recent Form
2003 Acts, ch 153, §6