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1 1 Section 1. NEW SECTION. 232.7 IOWA INDIAN CHILD WELFARE
1 2 ACT. If a proceeding held under this chapter involves an
1 3 Indian child as defined in section 232B.3 and the proceeding
1 4 is subject to the Iowa Indian child welfare Act under chapter
1 5 232B, the proceeding and other actions taken in connection
1 6 with the proceeding or this chapter shall comply with chapter
1 7 232B.
1 8 Sec. 2. NEW SECTION. 232B.1 SHORT TITLE.
1 9 This chapter shall be known and may be cited as the "Iowa
1 10 Indian Child Welfare Act".
1 11 Sec. 3. NEW SECTION. 232B.2 PURPOSE – POLICY OF STATE.
1 12 The purpose of the Iowa Indian child welfare Act is to
1 13 clarify state policies and procedures regarding implementation
1 14 of the federal Indian Child Welfare Act, Pub. L. No. 95-608,
1 15 as codified in 25 U.S.C. chapter 21. It is the policy of the
1 16 state to cooperate fully with Indian tribes and tribal
1 17 citizens in Iowa in order to ensure that the intent and
1 18 provisions of the federal Indian Child Welfare Act are
1 19 enforced. This cooperation includes recognition by the state
1 20 that Indian tribes have a compelling governmental interest in
1 21 an Indian child whether or not the child is in the physical or
1 22 legal custody of an Indian parent, Indian custodian, or an
1 23 Indian extended family member at the commencement of a child
1 24 custody proceeding or the child has resided or domiciled on an
1 25 Indian reservation. The state is committed to protecting the
1 26 essential tribal relations and best interests of an Indian
1 27 child by promoting practices, in accordance with the federal
1 28 Indian Child Welfare Act and other applicable law, designed to
1 29 prevent the child's voluntary or involuntary out-of-home
1 30 placement and, whenever such placement is necessary or
1 31 ordered, by placing the child, whenever possible, in a foster
1 32 home, adoptive home, or other type of custodial placement that
1 33 reflects the unique values of the child's tribal culture and
1 34 is best able to assist the child in establishing, developing,
1 35 and maintaining a political and social relationship with the
2 1 child's tribe and tribal community.
2 2 Sec. 4. NEW SECTION. 232B.3 DEFINITIONS.
2 3 For the purposes of this chapter unless the context
2 4 otherwise requires:
2 5 1. "Adoptive placement" means the permanent placement of
2 6 an Indian child for adoption including, but not limited to,
2 7 any action under chapter 232, 600, or 600A resulting in a
2 8 final decree of adoption.
2 9 2. "Child custody proceeding" means a voluntary or
2 10 involuntary proceeding that may result in an Indian child's
2 11 adoptive placement, foster care placement, preadoptive
2 12 placement, or termination of parental rights.
2 13 3. "Foster care placement" means the temporary placement
2 14 of an Indian child in an individual or agency foster care
2 15 placement or in the personal custody of a guardian or
2 16 conservator prior to the termination of parental rights, from
2 17 which the child cannot be returned upon demand to the custody
2 18 of the parent or Indian custodian. "Foster care placement"
2 19 does not include a placement based upon an act by an Indian
2 20 child which, if committed by an adult, would be deemed a
2 21 crime, or upon an award, in a divorce proceeding, of custody
2 22 to one of the child's parents.
2 23 4. "Indian" means a person who is a member of an Indian
2 24 tribe, or is eligible for membership in an Indian tribe, or
2 25 who is an Alaska native and a member of a regional corporation
2 26 as defined in 43 U.S.C. } 1606.
2 27 5. "Indian child" or "child" means an unmarried Indian
2 28 person who is under eighteen years of age.
2 29 6. "Indian child's tribe" means a tribe in which an Indian
2 30 child is a member or is eligible for membership.
2 31 7. "Indian child's family" or "extended family member"
2 32 means a person who is an Indian child's family member or
2 33 extended family member under the law or custom of the Indian
2 34 child's tribe or, in absence of such law or custom, a person
2 35 who has any of the following relationships with the Indian
3 1 child:
3 2 a. Parent.
3 3 b. Sibling.
3 4 c. Grandparent.
3 5 d. Aunt or uncle.
3 6 e. Cousin.
3 7 f. Clan member.
3 8 g. Band member.
3 9 h. Brother-in-law.
3 10 i. Sister-in-law.
3 11 j. Niece.
3 12 k. Nephew.
3 13 l. Stepparent.
3 14 8. "Indian custodian" means an Indian child's custodian as
3 15 defined in section 232.2 or a person who has legal custody of
3 16 an Indian child under tribal law, tribal custom, or state law.
3 17 9. "Indian organization" means any of the following
3 18 entities that is owned or controlled by Indians, or a majority
3 19 of the members are Indians:
3 20 a. A group.
3 21 b. An association.
3 22 c. A partnership.
3 23 d. A corporation.
3 24 e. Other legal entity.
3 25 10. "Indian tribe" or "tribe" means an Indian tribe, band,
3 26 nation, or other organized Indian group, or a community of
3 27 Indians, including any Alaska native village as defined in 43
3 28 U.S.C. } 1602(c) recognized as eligible for services provided
3 29 to Indians by the United States secretary of the interior
3 30 because of the community members' status as Indians.
3 31 11. "Parent" means a biological parent of an Indian child
3 32 or a person who has lawfully adopted an Indian child,
3 33 including adoptions made under tribal law or custom. "Parent"
3 34 does not include an unwed father whose paternity has not been
3 35 acknowledged or established. Except for purposes of the
4 1 federal Indian Child Welfare Act as codified in 25 U.S.C. }
4 2 1913(c) and (d), 1916, 1917, and 1951, "parent" does not
4 3 include a person whose parental rights to that child have been
4 4 terminated.
4 5 12. "Preadoptive placement" means the temporary placement
4 6 of an Indian child in an individual or agency foster care
4 7 placement after the termination of parental rights, but prior
4 8 to or in lieu of an adoptive placement.
4 9 13. "Secretary of the interior" means the secretary of the
4 10 United States department of the interior.
4 11 14. "Termination of parental rights" means any action
4 12 resulting in the permanent termination of the parent-child
4 13 relationship.
4 14 15. "Tribal court" means a court or administrative body
4 15 vested by an Indian tribe with jurisdiction over child custody
4 16 proceedings or a federal court of Indian offenses.
4 17 Sec. 5. NEW SECTION. 232B.4 APPLICATION OF CHAPTER –
4 18 EXEMPTIONS – DETERMINATION OF INDIAN STATUS.
4 19 1. This chapter applies to child custody proceedings
4 20 involving an Indian child whether the child is in the physical
4 21 or legal custody of an Indian parent, Indian custodian, or an
4 22 Indian extended family member or another person at the
4 23 commencement of the proceedings or whether the child has
4 24 resided or domiciled on or off an Indian reservation.
4 25 2. The party seeking the foster care placement of,
4 26 termination of parental rights over, or the adoption of, an
4 27 Indian child shall seek to determine whether the child is an
4 28 Indian child through contact with any Indian tribe in which
4 29 the child may be a member or eligible for membership, any
4 30 extended family members of the child, and any other person
4 31 that reasonably can be expected to have information regarding
4 32 the child's possible membership or eligibility for membership
4 33 in an Indian tribe.
4 34 3. A written determination by an Indian tribe that a child
4 35 is a member of or eligible for membership in that tribe, or
5 1 testimony attesting to such status by a person authorized by
5 2 the tribe to provide that determination, shall be conclusive.
5 3 A written determination by an Indian tribe, or testimony by a
5 4 person authorized by the tribe to provide that determination
5 5 or testimony, that a child is not a member of or eligible for
5 6 membership in that tribe shall be conclusive as to that tribe.
5 7 If an Indian tribe does not provide evidence of the child's
5 8 status as an Indian child, the court shall determine the
5 9 child's status.
5 10 4. The determination of the Indian status of a child shall
5 11 be made as soon as practicable in order to serve the best
5 12 interest of the child and to ensure compliance with the notice
5 13 requirements of this chapter.
5 14 Sec. 6. NEW SECTION. 232B.5 INDIAN CHILD CUSTODY
5 15 PROCEEDINGS – NOTICE, JURISDICTION, TRANSFER OF PROCEEDINGS.
5 16 1. An Indian tribe has jurisdiction exclusive as to this
5 17 state over any child custody proceeding held in this state
5 18 involving an Indian child who resides or is domiciled within
5 19 the reservation of that tribe, except when the jurisdiction is
5 20 otherwise vested in this state by existing federal law. If an
5 21 Indian child is a ward of a tribal court, the Indian tribe
5 22 shall retain exclusive jurisdiction, notwithstanding the
5 23 residence or domicile of the child.
5 24 2. In a child custody proceeding, the court or any party
5 25 to the proceeding shall be deemed to know or have reason to
5 26 know that an Indian child is involved whenever any of the
5 27 following circumstances exist:
5 28 a. A party to the proceeding or the court has been
5 29 informed by any interested person, an officer of the court, a
5 30 tribe, an Indian organization, a public or private agency, or
5 31 a member of the child's extended family that the child is or
5 32 may be an Indian child.
5 33 b. The child who is the subject of the proceeding gives
5 34 the court reason to believe the child is an Indian child.
5 35 c. The court has reason to believe the residence or
6 1 domicile of the child is in a predominately Indian community.
6 2 3. In any involuntary child custody proceeding, including
6 3 review hearings following an adjudication, the court shall
6 4 establish in the record that the party seeking the foster care
6 5 placement of, or termination of parental rights over, or the
6 6 adoption of an Indian child has sent notice by registered
6 7 mail, return receipt requested, to all of the following:
6 8 a. The child's parents.
6 9 b. The child's Indian custodians.
6 10 c. Any tribe in which the child may be a member or
6 11 eligible for membership.
6 12 4. If the identity or location of the child's parent,
6 13 Indian custodian, or tribe cannot be determined, the notice
6 14 under subsection 3 shall be provided to the secretary of the
6 15 interior, who shall have fifteen days after receipt of the
6 16 notice to provide the notice to the child's parent, Indian
6 17 custodian, and tribe. A foster care placement or termination
6 18 of parental rights proceeding involving the child shall not be
6 19 held until at least ten days after receipt of notice by the
6 20 child's parent, Indian custodian, and tribe, or the secretary
6 21 of the interior. Upon request, the child's parent or Indian
6 22 custodian or tribe shall be granted up to twenty additional
6 23 days to prepare for the proceeding.
6 24 5. The court shall also establish in the record that a
6 25 notice of any involuntary custody proceeding has been sent to
6 26 the Indian child's tribe. If an adjudication is made ordering
6 27 the placement of the child in a foster home, preadoptive
6 28 placement, or adoptive home, the court shall establish in the
6 29 record that notice has been provided to any member of the
6 30 Indian child's extended family who is entitled to a placement
6 31 preference under this chapter.
6 32 6. The notice in any involuntary child custody proceeding
6 33 involving an Indian child shall be written in clear and
6 34 understandable language and shall include all of the following
6 35 information:
7 1 a. The name and tribal affiliation of the Indian child.
7 2 b. A copy of the petition by which the proceeding was
7 3 initiated.
7 4 c. A statement listing the rights of the child's parents,
7 5 Indian custodians, and tribes and, if applicable, the rights
7 6 of the Indian child's family. The rights shall include all of
7 7 the following:
7 8 (1) The right to intervene in the proceeding.
7 9 (2) The right to petition the court to transfer the
7 10 proceeding to the tribal court of the Indian child's tribe.
7 11 (3) The right to request an additional twenty days from
7 12 the receipt of the notice to prepare for the proceeding.
7 13 (4) The right to request that the court grant further
7 14 extensions of time.
7 15 (5) In the case of an extended family member, the right to
7 16 intervene and be considered as a preferred placement for the
7 17 child.
7 18 d. A statement of the potential legal consequences of an
7 19 adjudication on the future custodial rights of the child's
7 20 parents or Indian custodians.
7 21 e. A statement that if the parents or Indian custodians
7 22 are unable to afford counsel in an involuntary proceeding,
7 23 counsel will be appointed to represent the parents or
7 24 custodians.
7 25 f. A statement that an official of an Indian tribe
7 26 receiving the notice shall keep confidential the information
7 27 contained in the notice.
7 28 7. In a voluntary child custody proceeding involving an
7 29 Indian child, the court shall establish in the record that the
7 30 party seeking the foster care placement of, termination of
7 31 parental rights to, or the adoption of, an Indian child has
7 32 sent notice at least ten days prior to the hearing by
7 33 registered mail, return receipt requested, to all of the
7 34 following:
7 35 a. The child's parents, except for a parent whose parental
8 1 rights have been terminated.
8 2 b. The child's Indian custodians, except for a custodian
8 3 whose parental or Indian custodian rights have been
8 4 terminated.
8 5 c. Any tribe in which the child may be a member or
8 6 eligible for membership.
8 7 d. Any member of the child's extended family who is
8 8 entitled to a placement preference under this chapter.
8 9 8. The notice in a voluntary child custody proceeding
8 10 involving an Indian child shall be written in clear and
8 11 understandable language and shall include all of the following
8 12 information:
8 13 a. The name and tribal affiliation of the child.
8 14 b. A copy of the petition by which the proceeding was
8 15 initiated.
8 16 c. A statement listing the rights of the child's parents,
8 17 Indian custodians, Indian tribe or tribes, and, if applicable,
8 18 extended family members. The rights shall include all of the
8 19 following:
8 20 (1) The right to intervene in the proceeding.
8 21 (2) The right to petition the court to transfer a foster
8 22 care placement or termination of parental rights proceeding to
8 23 the tribal court of the Indian child's tribe.
8 24 (3) In the case of extended family members, the right to
8 25 intervene and be considered as a preferred placement for the
8 26 child.
8 27 d. A statement that an official of an Indian tribe
8 28 receiving the notice shall keep confidential the information
8 29 contained in the notice.
8 30 9. Unless either of an Indian child's parents objects, in
8 31 any child custody proceeding involving an Indian child who is
8 32 not domiciled or residing within the jurisdiction of the
8 33 Indian child's tribe, the court shall transfer the proceeding
8 34 to the jurisdiction of the Indian child's tribe, upon the
8 35 petition of any of the following persons:
9 1 a. Either of the child's parents.
9 2 b. The child's Indian custodian.
9 3 c. The child's tribe.
9 4 10. Notwithstanding entry of an objection to a transfer of
9 5 proceedings as described in subsection 9, the court shall
9 6 reject any objection that is inconsistent with the purposes of
9 7 this chapter.
9 8 11. A transfer of proceedings under subsection 9 may be
9 9 declined by the Indian child's tribe. If the tribe declines
9 10 to assume jurisdiction, the court shall reassume jurisdiction
9 11 and shall apply all of the following in any proceeding:
9 12 a. The requirements of the federal Indian Child Welfare
9 13 Act.
9 14 b. This chapter.
9 15 c. The applicable provisions of any agreement between the
9 16 Indian child's tribe and the state concerning the welfare,
9 17 care, and custody of Indian children.
9 18 12. The Indian child's tribe or tribes and Indian
9 19 custodian have the right to intervene at any point in any
9 20 foster care placement or termination of parental rights
9 21 proceeding involving the child. The Indian child's tribe
9 22 shall also have the right to intervene at any point in any
9 23 adoption proceeding involving the child. Any member of the
9 24 Indian child's family may intervene in an adoption proceeding
9 25 involving the child for the purpose of petitioning the court
9 26 for the adoptive placement of the child in accordance with the
9 27 order of preference provided for in this chapter.
9 28 13. The state shall give full faith and credit to the
9 29 public acts, records, judicial proceedings, and judgments of
9 30 any Indian tribe applicable to the Indian child custody
9 31 proceedings to the same extent that the tribe gives full faith
9 32 and credit to the public acts, records, judicial proceedings,
9 33 and judgments of the state.
9 34 14. Any person or court involved in the foster care,
9 35 preadoptive placement, or adoptive placement of an Indian
10 1 child shall use the services of the Indian child's tribe or
10 2 tribes, whenever possible, in seeking to secure placement
10 3 within the order of placement preference established in
10 4 section 232B.7 and in the supervision of the placement.
10 5 15. The state of Iowa recognizes that an Indian tribe may
10 6 contract with another Indian tribe for supervision regarding
10 7 placement, case management, and the provision of services to
10 8 an Indian child.
10 9 Sec. 7. NEW SECTION. 232B.6 EMERGENCY REMOVAL OF INDIAN
10 10 CHILD.
10 11 1. This chapter shall not be construed to prevent the
10 12 emergency removal of an Indian child who is a resident of or
10 13 is domiciled on an Indian reservation, but is temporarily
10 14 located off the reservation, or is away from the child's
10 15 parent or Indian custodian, or the emergency placement of such
10 16 child in a foster home or institution, under applicable state
10 17 law, in order to prevent imminent physical damage or harm to
10 18 the child. In a case of emergency removal of an Indian child,
10 19 regardless of residence or domicile of the child, the state
10 20 shall ensure that the emergency removal or placement
10 21 terminates immediately when the removal or placement is no
10 22 longer necessary to prevent imminent physical damage or harm
10 23 to the child and shall expeditiously initiate a child custody
10 24 proceeding subject to the provisions of this chapter, transfer
10 25 the child to the jursidiction of the appropriate Indian tribe,
10 26 or restore the child to the child's parent or Indian
10 27 custodian, as may be appropriate.
10 28 2. A petition commencing an emergency removal or foster
10 29 care placement proceeding under chapter 232 involving an
10 30 Indian child shall be accompanied by all of the following:
10 31 a. An affidavit containing the names, tribal affiliations,
10 32 and addresses of the Indian child, and of the child's parents
10 33 and Indian custodians.
10 34 b. A specific and detailed account of the circumstances
10 35 supporting the removal of the child.
11 1 c. Official reports from each public or private agency
11 2 involved with the emergency removal. The reports shall
11 3 include all of the following information:
11 4 (1) The name of each agency.
11 5 (2) The names of agency administrators and professionals
11 6 involved in the removal.
11 7 (3) A description of the emergency justifying the removal
11 8 of the child.
11 9 (4) All observations made and actions taken by the agency.
11 10 (5) The date, time, and place of each such action.
11 11 (6) The signatures of all agency personnel involved.
11 12 (7) A statement of the specific actions taken and to be
11 13 taken by each involved agency to effectuate the safe return of
11 14 the child to the custody of the child's parent or Indian
11 15 custodian.
11 16 3. Within one business day following the issuance of an
11 17 order of emergency removal or placement of an Indian child,
11 18 the court issuing the order shall notify the Indian child's
11 19 tribe of the emergency removal or placement by registered
11 20 mail, return receipt requested. The notice shall include the
11 21 court order, any information required by this chapter, and a
11 22 statement informing the child's tribe of the tribe's right to
11 23 intervene in the proceeding.
11 24 4. An emergency removal or placement of an Indian child
11 25 shall immediately terminate, and any court order approving the
11 26 removal or placement shall be vacated, when the removal or
11 27 placement is no longer necessary to prevent imminent physical
11 28 damage or harm to the child. In no case shall an emergency
11 29 removal or placement order remain in effect for more than
11 30 fifteen days unless, upon a showing that continuation of the
11 31 order is necessary to prevent imminent physical damage or harm
11 32 to the child, the court extends the order for a period not to
11 33 exceed an additional thirty days.
11 34 5. Upon termination of the emergency removal or placement
11 35 order, the child shall immediately be returned to the custody
12 1 of the child's parent or Indian custodian unless any of the
12 2 following circumstances exist:
12 3 a. The child is transferred to the jurisdiction of the
12 4 child's tribe.
12 5 b. In an involuntary foster care placement proceeding
12 6 pursuant to the federal Indian Child Welfare Act, the court
12 7 orders that the child shall be placed in foster care upon a
12 8 determination, supported by clear and convincing evidence,
12 9 including testimony by at least one qualified expert witness,
12 10 that custody of the child by the child's parent or Indian
12 11 custodian is likely to result in serious emotional or physical
12 12 damage to the child.
12 13 c. The child's parent or Indian custodian voluntarily
12 14 consents to the foster care placement of the child pursuant to
12 15 the provisions of the federal Indian Child Welfare Act.
12 16 Sec. 8. NEW SECTION. 232B.7 PLACEMENT PREFERENCES.
12 17 1. In any adoptive or other permanent placement of an
12 18 Indian child, preference shall be given to a placement with
12 19 one of the following, in descending priority order:
12 20 a. A member of the Indian child's family.
12 21 b. Other members of the Indian child's tribe.
12 22 c. Another Indian family.
12 23 d. A non-Indian family approved by the Indian child's
12 24 tribe.
12 25 e. A non-Indian family that is committed to enabling the
12 26 child to have extended family visitation and participation in
12 27 the cultural and ceremonial events of the child's tribe,
12 28 provided such contacts would not expose the child to danger of
12 29 serious physical injury or harm.
12 30 2. An emergency removal, foster care, or preadoptive
12 31 placement of an Indian child shall be in the least restrictive
12 32 setting which most approximates a family situation and in
12 33 which the child's special needs, if any, may be met. The
12 34 child shall also be placed within reasonable proximity to the
12 35 child's home, taking into account any special needs of the
13 1 child. In any foster care or preadoptive placement, a
13 2 preference shall be given to the child's placement with one of
13 3 the following in descending priority order:
13 4 a. A member of the child's family.
13 5 b. A foster home licensed, approved, or specified by the
13 6 child's tribe.
13 7 c. An Indian foster home licensed or approved by an
13 8 authorized non-Indian licensing authority.
13 9 d. A child foster care agency approved by an Indian tribe
13 10 or operated by an Indian organization which has a program
13 11 suitable to meet the Indian child's needs.
13 12 e. A non-Indian child foster care agency approved by the
13 13 child's tribe.
13 14 f. A non-Indian family committed to enabling the child to
13 15 have extended family visitation and participation in the
13 16 cultural and ceremonial events of the child's tribe, provided
13 17 the contacts would not expose the child to danger of serious
13 18 physical injury or harm.
13 19 3. Notwithstanding the placement preferences listed in
13 20 subsections 1 and 2, if a different order of placement
13 21 preference is established by the child's tribe or in a binding
13 22 agreement between the child's tribe and the state entered into
13 23 pursuant to section 232B.9, the court or agency effecting the
13 24 placement shall follow the order of preference established by
13 25 the tribe or in the agreement.
13 26 4. As appropriate, the placement preference of the Indian
13 27 child or parent shall be considered. In applying the
13 28 preferences, a consenting parent's request for anonymity shall
13 29 also be given weight by the court or agency effecting the
13 30 placement. Unless there is clear and convincing evidence that
13 31 placement within the order of preference applicable under
13 32 subsection 1, 2, or 3 would be harmful to the Indian child,
13 33 consideration of the preference of the Indian child or parent
13 34 or a parent's request for anonymity shall not be a basis for
13 35 placing an Indian child outside of the applicable order of
14 1 preference.
14 2 5. The prevailing social and cultural standards of the
14 3 Indian community in which the parent or extended family
14 4 members of an Indian child reside, or with which such parent
14 5 or extended family members maintain social and cultural ties,
14 6 or the prevailing social and cultural standards of the Indian
14 7 child's tribe shall be applied in qualifying any placement
14 8 having a preference under this section.
14 9 6. A record of each foster care, preadoptive placement, or
14 10 adoptive placement of an Indian child, under the laws of this
14 11 state, shall be maintained in perpetuity by the department of
14 12 human services in accordance with section 232B.11. The record
14 13 shall document the efforts to comply with the applicable order
14 14 of preference specified in this section.
14 15 7. The state of Iowa recognizes the authority of Indian
14 16 tribes to license foster homes and to license agencies to
14 17 receive children for control, care, and maintenance outside of
14 18 the children's own homes, or to place, receive, arrange the
14 19 placement of, or assist in the placement of children for
14 20 foster care or adoption. The department of human services and
14 21 child-placing agencies licensed under chapter 238 may place
14 22 children in foster homes and facilities licensed by an Indian
14 23 tribe.
14 24 Sec. 9. NEW SECTION. 232B.8 TRIBALLY RECOGNIZED EXPERT
14 25 WITNESSES – STANDARD OF PROOF.
14 26 1. For the purposes of this section, unless the context
14 27 otherwise requires, a "qualified expert witness" may include,
14 28 but is not limited to, a social worker, sociologist,
14 29 physician, psychologist, traditional tribal therapist and
14 30 healer, spiritual leader, historian, or elder.
14 31 2. In considering whether to involuntarily place an Indian
14 32 child in foster care or to terminate the parental rights of
14 33 the parent of an Indian child, the court shall require that
14 34 qualified expert witnesses with specific knowledge of the
14 35 child's Indian tribe testify regarding that tribe's family
15 1 organization and child-rearing practices, and regarding
15 2 whether the tribe's culture, customs, and laws would support
15 3 the placement of the child in foster care or the termination
15 4 of parental rights on the grounds that continued custody of
15 5 the child by the parent or Indian custodian is likely to
15 6 result in serious emotional or physical damage to the child.
15 7 3. In the following descending order of preference, a
15 8 qualified expert witness is a person who is one of the
15 9 following:
15 10 a. A member of the child's Indian tribe who is recognized
15 11 by the child's tribal community as knowledgeable regarding
15 12 tribal customs as the customs pertain to family organization
15 13 or child-rearing practices.
15 14 b. A member of another tribe who is formally recognized by
15 15 the Indian child's tribe as having the knowledge to be a
15 16 qualified expert witness.
15 17 c. A layperson having substantial experience in the
15 18 delivery of child and family services to Indians, and
15 19 substantial knowledge of the prevailing social and cultural
15 20 standards and child-rearing practices within the Indian
15 21 child's tribe.
15 22 d. A professional person having substantial education and
15 23 experience in the person's professional specialty and having
15 24 substantial knowledge of the prevailing social and cultural
15 25 standards and child-rearing practices within the Indian
15 26 child's tribe.
15 27 4. a. Termination of parental rights over an Indian child
15 28 shall not be ordered in the absence of a determination,
15 29 supported by evidence beyond a reasonable doubt, including the
15 30 testimony of qualified expert witnesses, that the continued
15 31 custody of the child by the child's parent or Indian custodian
15 32 is likely to result in serious emotional or physical damage to
15 33 the child.
15 34 b. Foster care placement of an Indian child shall not be
15 35 ordered in the absence of a determination, supported by clear
16 1 and convincing evidence, including the testimony of qualified
16 2 expert witnesses, that the continued custody of the child by
16 3 the child's parent or Indian custodian is likely to result in
16 4 serious emotional or physical damage to the child.
16 5 Sec. 10. NEW SECTION. 232B.9 AGREEMENTS WITH TRIBES FOR
16 6 CARE AND CUSTODY OF INDIAN CHILDREN.
16 7 1. The director of human services or the director's
16 8 designee shall make a good faith effort to enter into
16 9 agreements with Indian tribes regarding the care and custody
16 10 of Indian children whose tribes have land within Iowa,
16 11 including but not limited to the Sac and Fox tribe, the Omaha
16 12 tribe, the Ponca tribe, and the Winnebago tribe, and whose
16 13 tribes have an Indian child who resides in the state of Iowa.
16 14 An agreement shall seek to promote the continued existence and
16 15 integrity of the Indian tribe as a political entity and the
16 16 vital interest of Indian children in securing and maintaining
16 17 a political and social relationship with their tribes. An
16 18 agreement shall assure that tribal services and Indian
16 19 organizations or agencies, where available, are used to the
16 20 greatest extent practicable in planning and implementing any
16 21 action pursuant to the agreement concerning the care and
16 22 custody of Indian children. If tribal services are not
16 23 available, an agreement shall assure that community services
16 24 and resources developed specifically for Indian families will
16 25 be used whenever possible.
16 26 2. In the event that an agreement entered into between the
16 27 tribe and the department of human services pertaining to the
16 28 funding of foster care placements for Indian children
16 29 conflicts with any federal or state law, the state in a
16 30 timely, good faith manner shall agree to amend the agreement,
16 31 if possible, in a way that prevents any interruption of
16 32 services to eligible Indian children.
16 33 Sec. 11. NEW SECTION. 232B.10 PAYMENT OF FOSTER CARE
16 34 EXPENSES.
16 35 1. If the department of human services has legal custody
17 1 of an Indian child and that child is placed in foster care
17 2 according to the placement preferences under section 232B.7
17 3 the state shall pay, subject to any applicable federal funding
17 4 limitations and requirements, the cost of the foster care in
17 5 the manner and to the same extent the state pays for foster
17 6 care of non-Indian children, including the administrative and
17 7 training costs associated with the placement. In addition,
17 8 the state shall pay the other costs related to the foster care
17 9 placement of an Indian child as may be provided for in an
17 10 agreement entered into between a tribe and the state.
17 11 2. The department of human services may, subject to any
17 12 applicable federal funding limitations and requirements and
17 13 within funds appropriated for foster care services, purchase
17 14 care for Indian children who are in the custody of a federally
17 15 recognized Indian tribe or tribally licensed child-placing
17 16 agency pursuant to parental consent, tribal court order, or
17 17 state court order; and the purchase of the care is subject to
17 18 the same eligibility standards and rates of support applicable
17 19 to other children for whom the department purchases care.
17 20 Sec. 12. NEW SECTION. 232B.11 RECORDS.
17 21 1. The department of human services shall establish a
17 22 database in a single location where a record shall be
17 23 maintained of every involuntary or voluntary foster care,
17 24 preadoptive placement, or adoptive placement of an Indian
17 25 child that is ordered by a court of this state. The record
17 26 shall document the efforts made to comply with the order of
17 27 placement preference specified in section 232B.7.
17 28 2. An Indian child's placement record shall be maintained
17 29 in perpetuity by the department of human services and shall
17 30 include, but not be limited to, all of the following
17 31 information:
17 32 a. The name and tribal affiliation of the child.
17 33 b. The location of the child's Indian tribe or tribes.
17 34 c. The names and addressees of the child's biological
17 35 parents.
18 1 d. The child's certificate of degree of Indian blood.
18 2 e. The child's tribal enrollment or other membership
18 3 documentation, if any.
18 4 f. The child's medical records.
18 5 g. The social and medical history of the child's
18 6 biological family.
18 7 h. The names, ages, and gender of the child's siblings.
18 8 i. The names, ages, and gender of the child's kinship or
18 9 extended family members.
18 10 j. The names and addresses of the child's adoptive
18 11 parents.
18 12 k. The identity of any agency having files or information
18 13 relating to the placement.
18 14 l. All reports concerning the child or the child's family,
18 15 including detailed information regarding case plans and other
18 16 efforts to rehabilitate the parents of the child.
18 17 m. A record of efforts made to place the child within and
18 18 outside of the placement preferences under section 232B.7.
18 19 n. A statement of the reason for the final placement
18 20 decision.
18 21 3. If a court orders the foster care, preadoptive
18 22 placement, or adoptive placement of an Indian child, the court
18 23 and any state-licensed child-placing agency involved in the
18 24 placement shall provide the department of human services with
18 25 the records described in subsections 1 and 2.
18 26 4. A record maintained by the department of human services
18 27 pursuant to this section shall be made available within seven
18 28 days of a request for the record by the Indian child's tribe
18 29 or the secretary of the interior.
18 30 5. Upon the request of an Indian person, who is eighteen
18 31 years of age or older, or upon the request of an Indian
18 32 child's parent, Indian custodian, attorney, guardian ad litem,
18 33 guardian, legal custodian, or caseworker of the Indian child,
18 34 the department of human services shall provide access to the
18 35 records pertaining to the Indian person or child maintained by
19 1 the department pursuant to this section. The records shall
19 2 also be made available upon the request of the descendants of
19 3 the Indian person or child.
19 4 6. If a parent of an Indian child wishes to remain
19 5 anonymous, records concerning any such parent shall not be
19 6 released unless necessary to secure, maintain, or enforce the
19 7 Indian child's right to enrollment or membership in the
19 8 child's Indian tribe, for determining a right or benefit
19 9 associated with the enrollment or membership, or for
19 10 determining a right to an inheritance.
19 11 Sec. 13. NEW SECTION. 232B.12 COMPLIANCE.
19 12 1. The department of human services shall establish
19 13 standards for the department's review of cases subject to this
19 14 chapter. The review shall occur on an annual basis.
19 15 2. The court shall vacate a state court order and remand
19 16 the case for appropriate disposition for any of the following
19 17 violations of this chapter:
19 18 a. Failure to notify an Indian parent, Indian custodian,
19 19 or tribe.
19 20 b. Failure to recognize the legitimate jurisdiction of an
19 21 Indian tribe.
19 22 c. Failure, without cause as specified under this chapter,
19 23 to transfer jurisdiction to an Indian tribe appropriately
19 24 seeking transfer.
19 25 d. Failure to give full faith and credit to the public
19 26 acts, records, or judicial proceedings of an Indian tribe.
19 27 e. Failure to allow intervention by an Indian custodian or
19 28 Indian tribe.
19 29 f. Failure to return the child to the child's parent or
19 30 Indian custodian when removal or placement is no longer
19 31 necessary to prevent imminent physical damage or harm.
19 32 g. Failure to provide the testimony of an expert witness
19 33 as required by this chapter.
19 34 3. With respect to any proceeding subject to this chapter,
19 35 a person is civilly liable for the damages proximately caused
20 1 by any of the following:
20 2 a. Knowingly and willfully participating in any activity
20 3 listed in subsection 4.
20 4 b. A knowing and willful violation described in subsection
20 5 2.
20 6 c. Any other knowing and willful violation of this
20 7 chapter.
20 8 4. With respect to any proceeding subject to this chapter,
20 9 a person shall, upon conviction, be subject to a criminal
20 10 sanction under subsection 5 if the person knowingly and
20 11 willfully does any of the following pertaining to the
20 12 requirements of this chapter:
20 13 a. Falsifies, conceals, or covers up by any trick, scheme,
20 14 or device, a material fact concerning whether, for purposes of
20 15 this chapter, a child is an Indian child or the child's parent
20 16 is an Indian.
20 17 b. Makes any false, fictitious, or fraudulent statement,
20 18 omission, or representation.
20 19 c. Falsifies or verifies a written document knowing that
20 20 the document contains a false, fictitious, or fraudulent
20 21 statement or entry relating to a material fact described in
20 22 paragraph "a".
20 23 d. Assists any person in physically removing a child from
20 24 the United States in order to obstruct the application of this
20 25 chapter.
20 26 e. Violates section 232B.4, 232B.5, 232B.6, 232B.7,
20 27 232B.8, or 232B.11.
20 28 5. An initial violation described in subsection 4 is a
20 29 serious misdemeanor. A second or subsequent violation
20 30 described in subsection 4 is a class "D" felony.
20 31 Sec. 14. Section 600.1, Code 2001, is amended by adding
20 32 the following new unnumbered paragraph:
20 33 NEW UNNUMBERED PARAGRAPH. If a proceeding held under this
20 34 chapter involves an Indian child as defined in section 232B.3
20 35 and the proceeding is subject to the Iowa Indian child welfare
21 1 Act under chapter 232B, the proceeding and other actions taken
21 2 in connection with the proceeding or this chapter shall comply
21 3 with chapter 232B.
21 4 Sec. 15. Section 600A.3, Code 2001, is amended by adding
21 5 the following new unnumbered paragraph:
21 6 NEW UNNUMBERED PARAGRAPH. If a proceeding held under this
21 7 chapter involves an Indian child as defined in section 232B.3
21 8 and the proceeding is subject to the Iowa Indian child welfare
21 9 Act under chapter 232B, the proceeding and other actions taken
21 10 in connection with the proceeding or this chapter shall comply
21 11 with chapter 232B.
21 12 EXPLANATION
21 13 This bill implements the federal Indian Child Welfare Act
21 14 of 1978. The bill establishes requirements for the courts,
21 15 department of human services, and others for use in any
21 16 voluntary or involuntary proceeding that may result in an
21 17 Indian child's adoptive placement, preadoptive placement,
21 18 foster care placement, or termination of parental rights.
21 19 The bill addresses definitions, determination of a child's
21 20 Indian status, notice of proceedings, transfers of
21 21 jurisdiction, emergency removals, preferences for permanent
21 22 out-of-home placements, usage of tribally recognized expert
21 23 witnesses, agreements with tribes for care and custody of
21 24 Indian children, payment of foster care expenses, maintenance
21 25 of records in perpetuity, and compliance requirements
21 26 including civil liability and criminal penalties.
21 27 A person who knowingly and willfully fails to act as
21 28 required by the chapter or otherwise violates the chapter is
21 29 civilly liable for the damages proximately caused by the
21 30 failure or violation. A person who knowingly and willfully
21 31 violates the chapter by an action or failure to take action in
21 32 compliance with the chapter commits a serious misdemeanor for
21 33 a first offense and a class "D" felony for a second or
21 34 subsequent offense.
21 35 The bill amends Code chapter 232, the juvenile justice
22 1 code, Code chapter 600, relating to adoptions, and Code
22 2 chapter 600A, relating to termination of parental rights, to
22 3 provide that if a proceeding held under any of those Code
22 4 chapters involves an Indian child and the proceeding is
22 5 subject to the Iowa Indian child welfare Act, the proceeding
22 6 and other actions taken in connection with the proceeding or
22 7 the applicable Code chapter must comply with Code chapter
22 8 232B.
22 9 LSB 5818HH 79
22 10 jp/cf/24
Text: HF02357 Text: HF02359 Text: HF02300 - HF02399 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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