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1 1 Section 1. NEW SECTION. 232.7 IOWA INDIAN CHILD WELFARE
1 2 ACT.
1 3 1. If a proceeding held under this chapter involves an
1 4 Indian child as defined in section 232B.2 and the proceeding
1 5 is subject to the Iowa Indian child welfare Act under chapter
1 6 232B, the proceeding and other actions taken in connection
1 7 with the proceeding or this chapter shall comply with chapter
1 8 232B.
1 9 2. The federal Adoption and Safe Families Act of 1997
1 10 (ASFA), Pub. L. No. 105-89, does not supercede the federal
1 11 Indian Child Welfare Act (ICWA). The general assembly finds
1 12 that ICWA has not been modified, limited, or diminished by the
1 13 ASFA and Iowa shall comply with the mandates of both federal
1 14 laws.
1 15 Sec. 2. NEW SECTION. 232B.1 SHORT TITLE – PURPOSE –
1 16 POLICY OF STATE.
1 17 1. This chapter shall be known and may be cited as the
1 18 "Iowa Indian Child Welfare Act".
1 19 2. The purpose of the Iowa Indian child welfare Act is to
1 20 clarify state policies and procedures regarding implementation
1 21 of the federal Indian Child Welfare Act, Pub. L. No. 95-608,
1 22 as codified in 25 U.S.C. ch. 21 } 1901, et seq. It is the
1 23 policy of the state to cooperate fully with Indian tribes and
1 24 tribal citizens in Iowa in order to ensure that the intent and
1 25 provisions of the federal Indian Child Welfare Act are
1 26 enforced. This cooperation includes recognition by the state
1 27 that Indian tribes have a continuing and compelling
1 28 governmental interest in an Indian child whether the child is
1 29 in the physical or legal custody of an Indian parent, Indian
1 30 custodian, or an Indian extended family member at the time of
1 31 the child's removal or commencement of a child custody
1 32 proceeding or whether the child has resided or domiciled on an
1 33 Indian reservation prior to, during, or following a state
1 34 child custody proceeding. The state is committed to
1 35 protecting the essential tribal relations and best interests
2 1 of an Indian child by promoting practices, in accordance with
2 2 the federal Indian Child Welfare Act and other applicable law,
2 3 designed to prevent the child's voluntary or involuntary out-
2 4 of-home placement and, whenever such placement is necessary or
2 5 ordered, by acting to the greatest possible extent to place
2 6 the child in a foster home, adoptive home, or other type of
2 7 custodial placement that reflects the unique values of the
2 8 child's tribal culture and is best able to assist the child in
2 9 establishing, developing, and maintaining a political,
2 10 cultural, and social relationship with the child's tribe and
2 11 tribal community. Compliance with this chapter requires
2 12 minimum levels of cultural competency of all persons involved
2 13 with social service efforts in the state and requires those
2 14 services and the courts of the state to identify and apply the
2 15 social and cultural standards of each child's tribe before
2 16 removal or placement determinations are made.
2 17 Sec. 3. NEW SECTION. 232B.2 DEFINITIONS.
2 18 For the purposes of this chapter unless the context
2 19 otherwise requires:
2 20 1. "Active efforts" means a vigorous and concerted level
2 21 of effort beyond the level that typically constitutes
2 22 reasonable efforts as defined in sections 232.57 and 232.102.
2 23 Reasonable efforts shall not be construed to be active
2 24 efforts. Active efforts take into account the prevailing
2 25 social and cultural values, conditions, and way of life of the
2 26 Indian child's tribe. Active efforts utilize the available
2 27 resources of the Indian child's extended family, tribe, tribal
2 28 and other Indian social service agencies, and individual
2 29 Indian caregivers. Active efforts include but are not limited
2 30 to all of the following:
2 31 a. A request to the Indian child's tribe to convene
2 32 traditional and customary support and resolution actions or
2 33 services.
2 34 b. Identification and participation of tribally designated
2 35 representatives at the earliest point.
3 1 c. Consultation with extended family members to identify
3 2 family structure and family support services that may be
3 3 provided by extended family members.
3 4 d. Frequent visitation in the Indian child's home and the
3 5 homes of the child's extended family members.
3 6 e. Exhaustion of all tribally appropriate family
3 7 preservation alternatives.
3 8 f. Identification and provision of housing, financial, and
3 9 transportation assistance.
3 10 2. "Best interest" or "best interest of the child" means
3 11 compliance with the spirit and intent of the federal Indian
3 12 Child Welfare Act of protecting the unique relationship that
3 13 exists between each Indian child and the child's own tribe,
3 14 and providing the Indian child with unbroken access to and
3 15 involvement in the child's tribe's way of life and the child's
3 16 lifelong relationship with the child's extended family, tribal
3 17 community, and tribe.
3 18 3. "Child custody proceeding" means a voluntary or
3 19 involuntary proceeding in which an Indian child is removed or
3 20 may be removed from the care, custody, or control of the
3 21 child's parent or Indian custodian, including but not limited
3 22 to a proceeding that may result in an Indian child's adoptive
3 23 placement, foster care placement, preadoptive placement, or
3 24 termination of parental rights, or other permanency placement
3 25 proceeding involving an Indian child.
3 26 4. "Indian" means a person who is a member of an Indian
3 27 tribe, or is eligible for membership in an Indian tribe, or
3 28 who is an Alaska native and a member of a regional corporation
3 29 as defined in 43 U.S.C. } 1606.
3 30 5. "Indian child" or "child" means an unmarried Indian
3 31 person who is under eighteen years of age or is a child that
3 32 an Indian tribe identifies as a child of the tribe's
3 33 community.
3 34 6. "Indian child's tribe" means a tribe in which an Indian
3 35 child is a member or is eligible for membership.
4 1 7. "Indian child's family" or "extended family member"
4 2 means an adult person who is an Indian child's family member
4 3 or extended family member under the law or custom of the
4 4 Indian child's tribe or, in absence of such law or custom, an
4 5 adult person who has any of the following relationships with
4 6 the Indian child:
4 7 a. Parent.
4 8 b. Sibling.
4 9 c. Grandparent.
4 10 d. Aunt or uncle.
4 11 e. First or second cousin.
4 12 f. Clan member.
4 13 g. Tribal member.
4 14 h. Brother-in-law.
4 15 i. Sister-in-law.
4 16 j. Niece.
4 17 k. Nephew.
4 18 l. Stepparent.
4 19 8. "Indian custodian" means an Indian person who has legal
4 20 custody of an Indian child under tribal law, tribal custom, or
4 21 state law or to whom temporary physical care, custody, and
4 22 control has been transferred by the child's parent.
4 23 9. "Indian organization" means any of the following
4 24 entities that is owned or controlled by Indians, or of which a
4 25 majority of the members are Indians:
4 26 a. A group.
4 27 b. An association.
4 28 c. A partnership.
4 29 d. A corporation.
4 30 e. Other legal entity.
4 31 10. "Indian tribe" or "tribe" means an Indian tribe, band,
4 32 nation, or other organized Indian group, or a community of
4 33 Indians, including any Alaska native village as defined in 43
4 34 U.S.C. } 1602(c) recognized as eligible for services provided
4 35 to Indians by the United States secretary of the interior
5 1 because of the community members' status as Indians.
5 2 11. "Parent" means a biological parent of an Indian child
5 3 or a person who has lawfully adopted an Indian child,
5 4 including adoptions made under tribal law or custom. "Parent"
5 5 does not include an unwed father whose paternity has not been
5 6 acknowledged or established. Except for purposes of the
5 7 federal Indian Child Welfare Act as codified in 25 U.S.C. }
5 8 1913, "parent" does not include a person whose parental rights
5 9 to that child have been terminated.
5 10 12. "Reservation" means Indian country as defined in 18
5 11 U.S.C. } 1151 or land that is not covered under that
5 12 definition but the title to which is either held by the United
5 13 States in trust for the benefit of an Indian tribe or Indian
5 14 person or held by an Indian tribe or Indian person subject to
5 15 a restriction by the United States against alienation.
5 16 13. "Secretary of the interior" means the secretary of the
5 17 United States department of the interior.
5 18 14. "Tribal court" means a court or body vested by an
5 19 Indian tribe with jurisdiction over child custody proceedings
5 20 and which is a federal court of Indian offenses, a court
5 21 established and operated under the code or custom of an Indian
5 22 tribe, or other tribal body, including an administrative body
5 23 of an Indian tribe vested with authority over child custody
5 24 proceedings.
5 25 Sec. 4. NEW SECTION. 232B.3 APPLICATION OF CHAPTER –
5 26 DETERMINATION OF INDIAN STATUS – RIGHT TO COUNSEL.
5 27 1. This chapter applies to child custody proceedings
5 28 involving an Indian child whether the child is in the physical
5 29 or legal custody of an Indian parent, Indian custodian, or an
5 30 Indian extended family member or another person at the
5 31 commencement of the proceedings or whether the child has
5 32 resided or domiciled on or off an Indian reservation.
5 33 2. In a child custody proceeding, the court or any party
5 34 to the proceeding shall be deemed to know or have reason to
5 35 know that an Indian child is involved whenever any of the
6 1 following circumstances exist:
6 2 a. A party to the proceeding or the court has been
6 3 informed by an interested person, an officer of the court, a
6 4 tribe, an Indian organization, a public or private agency, or
6 5 a member of the Indian child's family that the child is or may
6 6 be an Indian child.
6 7 b. The child who is the subject of the proceeding gives
6 8 the court reason to believe the child is an Indian child.
6 9 c. The court or a party to the proceeding has reason to
6 10 believe the residence or domicile of the child is in a
6 11 predominantly Indian community.
6 12 3. The court shall require a party seeking the foster care
6 13 placement of, termination of parental rights over, or the
6 14 adoption or permanent placement of, an Indian child to seek
6 15 information regarding whether the child is an Indian child
6 16 through contact with any Indian tribe in which the child may
6 17 be a member or eligible for membership, any extended family
6 18 members of the child, and any other person that reasonably can
6 19 be expected to have information regarding the child's possible
6 20 membership or eligibility for membership in an Indian tribe,
6 21 including but not limited to the United States department of
6 22 the interior.
6 23 4. The determination of the Indian status of a child shall
6 24 be made as soon as practicable in order to serve the best
6 25 interest of the child and to ensure compliance with the notice
6 26 requirements of this chapter. If a party or the court
6 27 suspects that a child involved in a child custody proceeding
6 28 is an Indian child, the child shall be considered to be an
6 29 Indian child, pending determination of the child's Indian
6 30 status by the child's tribe.
6 31 5. A written determination by an Indian tribe that a child
6 32 is a member of or eligible for membership in that tribe, or
6 33 testimony attesting to such status by a person authorized by
6 34 the tribe to provide that determination, shall be conclusive.
6 35 A written determination by an Indian tribe, or testimony by a
7 1 person authorized by the tribe to provide that determination
7 2 or testimony, that a child is not a member of or eligible for
7 3 membership in that tribe shall be conclusive as to that tribe.
7 4 If an Indian tribe does not provide evidence of the child's
7 5 status as an Indian child, the court shall determine the
7 6 child's status.
7 7 6. In any proceeding in which the court determines
7 8 indigency of the Indian child's parent or Indian custodian,
7 9 the parent or Indian custodian shall have the right to court-
7 10 appointed counsel in any removal, placement, or termination of
7 11 parental rights. The child shall also have the right to
7 12 court-appointed counsel in any removal, placement, termination
7 13 of parental rights, or other permanency proceedings.
7 14 7. The Indian child's parent or Indian custodian has the
7 15 right to participate in any preadoptive, adoptive, or other
7 16 permanency proceeding involving the Indian child,
7 17 notwithstanding the termination of the parent or Indian
7 18 custodian's rights in regard to the Indian child.
7 19 Sec. 5. NEW SECTION. 232B.4 TRANSFER OF PROCEEDINGS.
7 20 1. An Indian tribe's tribal court has jurisdiction
7 21 exclusive as to this state over any child custody proceeding
7 22 held in this state involving an Indian child who resides or is
7 23 domiciled within the reservation of that tribe and
7 24 jurisdiction shall be transferred to the tribal court unless
7 25 the Indian child's parent or Indian custodian objects or the
7 26 tribal court declines to accept the transfer. In addition, a
7 27 state court may determine there is good cause not to transfer
7 28 jurisdiction.
7 29 2. In any determination for good cause not to transfer
7 30 jurisdiction to a tribal court none of the following shall be
7 31 considered in a determination that good cause exists:
7 32 a. The proceeding was at an advanced stage when the
7 33 petition to transfer was received and the petitioner did not
7 34 file the petition promptly after receiving notice.
7 35 b. The Indian child is more than twelve years of age and
8 1 objects to the transfer.
8 2 c. The evidence necessary to decide the case could not be
8 3 adequately presented in the tribal court without undue
8 4 hardship to the parties or the witnesses.
8 5 d. The parents of an Indian child are not available.
8 6 e. The parent or the Indian child has had little or no
8 7 contact with the child's tribe.
8 8 f. The socioeconomic conditions of the Indian child or the
8 9 child's family.
8 10 g. The perceived adequacy of tribal or federal bureau of
8 11 Indian affairs social services or judicial systems.
8 12 3. Notwithstanding entry of an objection to a transfer of
8 13 proceedings as described in this chapter, the court shall
8 14 reject any objection that is inconsistent with the purposes of
8 15 this chapter, including but not limited to an objection that
8 16 would prevent maintaining the vital relationship between an
8 17 Indian child and the child's tribe or would cause removal of
8 18 the child from a placement that reflects the unique values and
8 19 customs of the child's tribe.
8 20 4. If the tribal court declines to accept jurisdiction or
8 21 the court denies a request to transfer proceedings to a tribal
8 22 court, the court shall apply all of the following in any
8 23 proceeding:
8 24 a. The requirements of the federal Indian Child Welfare
8 25 Act.
8 26 b. This chapter.
8 27 c. The applicable provisions of any agreement between the
8 28 Indian child's tribe and the state concerning the welfare,
8 29 care, and custody of Indian children.
8 30 5. The Indian child's tribe or tribes, parent, or Indian
8 31 custodian has the right to intervene at any point in any
8 32 foster care placement, preadoption, or termination of parental
8 33 rights proceeding involving the child. The Indian child's
8 34 tribe has the right to intervene at any point in any adoption
8 35 or other permanency proceeding. Any member of the Indian
9 1 child's extended family has the right to intervene in an
9 2 adoption or other permanency proceeding for the purpose of
9 3 petitioning the court for the adoptive placement of the child
9 4 in accordance with the order of preference provided in this
9 5 chapter and the child's tribe has the right to object to the
9 6 petition.
9 7 6. The state shall give full faith and credit to an Indian
9 8 tribe's public acts, records, judicial proceedings, and
9 9 judgments that are applicable to an Indian child custody
9 10 proceeding.
9 11 Sec. 6. NEW SECTION. 232B.5 NOTICE.
9 12 1. In any voluntary or involuntary Indian child custody
9 13 proceeding, including review hearings following an
9 14 adjudication, the court shall establish in the record that the
9 15 party initiating the child custody proceeding has sent notice
9 16 by registered mail, return receipt requested, to all of the
9 17 following:
9 18 a. The child's parents, including but not limited to a
9 19 biological Indian parent whose parental right have been
9 20 terminated, unless the biological parent requests otherwise in
9 21 writing.
9 22 b. The child's Indian custodians.
9 23 c. Any tribe in which the child may be a member or
9 24 eligible for membership.
9 25 d. If authorized by this chapter, the child's extended
9 26 family members.
9 27 2. If the identity or location of the child's parent,
9 28 Indian custodian, or tribe cannot be determined, the notice
9 29 shall be provided to the secretary of the interior, who shall
9 30 have fifteen days after receipt of the notice to provide the
9 31 notice to the child's parent or Indian custodian and tribe. A
9 32 foster care placement or termination of parental rights
9 33 proceeding involving the child shall not be held until at
9 34 least ten days after receipt of notice by the child's parent,
9 35 Indian custodian, and tribe, or the secretary of the interior.
10 1 Upon request, the child's parent or Indian custodian or tribe
10 2 shall be granted up to twenty additional days after receipt of
10 3 the notice to prepare for the proceeding.
10 4 3. The notice in any voluntary or involuntary Indian child
10 5 custody proceeding, including review hearings, shall be
10 6 written in clear and understandable language and shall be
10 7 served by the party initiating the child custody proceeding,
10 8 upon the persons identified in subsection 1, not less than
10 9 twenty-eight days prior to the hearing date. However, notice
10 10 and service for an emergency removal or emergency hearing
10 11 shall be as provided in section 232B.10.
10 12 4. The notice in any involuntary child custody proceeding
10 13 involving an Indian child shall include all of the following
10 14 information:
10 15 a. The name and tribal affiliation of the Indian child.
10 16 b. A copy of the petition by which the proceeding was
10 17 initiated.
10 18 c. A statement listing the rights of the child's parents,
10 19 Indian custodians, and tribes and, if applicable, the rights
10 20 of the Indian child's family. The rights shall include all of
10 21 the following:
10 22 (1) The right to intervene in the proceeding.
10 23 (2) The right to petition the court to transfer the
10 24 proceeding to the tribal court of the Indian child's tribe.
10 25 (3) The right to be granted up to an additional twenty
10 26 days from the receipt of the notice to prepare for the
10 27 proceeding.
10 28 (4) The right to request that the court grant further
10 29 extensions of time.
10 30 (5) In the case of an extended family member, the right to
10 31 intervene and be considered as a preferred placement for the
10 32 child.
10 33 d. A statement of the potential legal consequences of an
10 34 adjudication on the future custodial rights of the child's
10 35 parents or Indian custodians.
11 1 e. A statement that if the parents or Indian custodians
11 2 are unable to afford counsel in an involuntary proceeding,
11 3 counsel will be appointed to represent the parents or
11 4 custodians.
11 5 f. A statement that the court may appoint counsel for the
11 6 child.
11 7 g. A statement that the information contained in the
11 8 notice, petition, pleading, and other court documents is
11 9 confidential.
11 10 h. A statement that the tribe may provide notice to the
11 11 Indian child's extended family along with copies of related
11 12 documents.
11 13 5. The notice in a voluntary child custody proceeding
11 14 involving an Indian child shall include all of the following
11 15 information:
11 16 a. The name and tribal affiliation of the child.
11 17 b. A copy of the petition by which the proceeding was
11 18 initiated.
11 19 c. A statement listing the rights of the child's parents,
11 20 Indian custodians, Indian tribe or tribes, and, if applicable,
11 21 extended family members. The rights shall include all of the
11 22 following:
11 23 (1) The right to intervene in the proceeding.
11 24 (2) The right to petition the court to transfer a foster
11 25 care placement or termination of parental rights proceeding to
11 26 the tribal court of the Indian child's tribe.
11 27 (3) In the case of extended family members, the right to
11 28 intervene and be considered as a preferred placement for the
11 29 child.
11 30 d. A statement of the potential legal consequences of an
11 31 adjudication on the future custodial rights of the Indian
11 32 child's parents or Indian custodians.
11 33 e. A statement that if the Indian child's parents or
11 34 Indian custodians are unable to afford counsel, counsel shall
11 35 be appointed to represent the parents or custodians.
12 1 f. A statement that the court may appoint counsel for the
12 2 child.
12 3 g. A statement that the information contained in the
12 4 notice, petition, pleading, and other court documents is
12 5 confidential.
12 6 h. A statement that the tribe may provide notice to the
12 7 Indian child's extended family along with copies of related
12 8 documents.
12 9 6. Whenever a determination is made by the court for
12 10 placement of an Indian child in foster care, or a preadoptive
12 11 or adoptive home, or any change in a child's placement home,
12 12 the court shall establish in the record that notice of the
12 13 hearing has been sent to all members of the Indian child's
12 14 family entitled to a placement preference under this chapter.
12 15 Sec. 7. NEW SECTION. 232B.6 ACTIVE EFFORTS.
12 16 The court shall require any party seeking to effect foster
12 17 care placement of, termination of parental rights to, adoption
12 18 of, or other permanency proceeding for an Indian child to
12 19 demonstrate to the court the active efforts made to provide
12 20 remedial and rehabilitative services in regard to the child
12 21 and the child's family. The purpose of the services is to
12 22 prevent the breakup of the Indian child's family and to
12 23 maintain the Indian child's family during adoption or other
12 24 permanency proceeding. Active efforts shall be directed at
12 25 prevention, reunification, and rehabilitation services, and
12 26 promotion of tribal identity in the context of tribal law,
12 27 custom, and cultural standards.
12 28 Sec. 8. NEW SECTION. 232B.7 TRIBALLY RECOGNIZED
12 29 QUALIFIED EXPERT WITNESSES.
12 30 1. For the purposes of this section, unless the context
12 31 otherwise requires, a "qualified expert witness" may include,
12 32 but is not limited to, a social worker, sociologist,
12 33 physician, psychologist, traditional tribal therapist and
12 34 healer, spiritual leader, historian, or elder.
12 35 2. Foster care placement of an Indian child shall not be
13 1 ordered in the absence of a determination, supported by clear
13 2 and convincing evidence, including the testimony of qualified
13 3 expert witnesses, that the continued custody of the child by
13 4 the child's parent or Indian custodian is likely to result in
13 5 serious emotional or physical damage to the child.
13 6 3. Termination of parental rights over an Indian child
13 7 shall not be ordered in the absence of a determination,
13 8 supported by evidence beyond a reasonable doubt, including the
13 9 testimony of qualified expert witnesses, that the continued
13 10 custody of the child by the child's parent or Indian custodian
13 11 is likely to result in serious emotional or physical damage to
13 12 the child.
13 13 4. Adoption of an Indian child shall not be ordered in the
13 14 absence of a determination, supported by clear and convincing
13 15 evidence, including the testimony of qualified expert
13 16 witnesses, that the adoption is in the best interest of the
13 17 child.
13 18 5. In considering whether to involuntarily place an Indian
13 19 child in foster or preadoptive care or to terminate the
13 20 parental rights of the parent of an Indian child, the court
13 21 shall require that qualified expert witnesses with specific
13 22 knowledge of the child's Indian tribe testify regarding that
13 23 tribe's family organization and child-rearing practices, and
13 24 regarding whether the tribe's culture, customs, and laws would
13 25 support the placement of the child in foster or preadoptive
13 26 care or the termination of parental rights on the grounds that
13 27 continued custody of the child by the parent or Indian
13 28 custodian is likely to result in serious emotional or physical
13 29 damage to the child.
13 30 6. The court shall require proof of the efforts made by
13 31 the petitioning party to identify and secure testimony by
13 32 qualified expert witnesses in the order of preference
13 33 specified in this subsection. In the following descending
13 34 order of preference, a qualified expert witness is a person
13 35 who is one of the following:
14 1 a. A member of the child's Indian tribe who is recognized
14 2 by the child's tribal community as knowledgeable regarding
14 3 vital components of the cultural and structural integrity of
14 4 Indian extended kin systems and tribal customs, traditions,
14 5 and values as the customs, traditions, and values pertain to
14 6 family organization and child-rearing practices.
14 7 b. A member of another tribe who is formally recognized by
14 8 the Indian child's tribe as having the knowledge regarding
14 9 vital components of the cultural and structural integrity of
14 10 Indian extended kin systems and tribal customs, traditions,
14 11 and values as the customs, traditions, and values pertain to
14 12 family organization and child-rearing practices.
14 13 c. A layperson having substantial experience in the
14 14 delivery of child and family services to Indian people, and
14 15 extensive knowledge of the Indian child's tribal customs,
14 16 traditions, and values as the customs, traditions, and values
14 17 pertain to family organization and child-rearing practices.
14 18 d. A professional person having substantial education and
14 19 experience in the person's professional specialty and having
14 20 extensive knowledge of the Indian child's tribal customs,
14 21 traditions, and values as the customs, traditions, and values
14 22 pertain to family organization and child-rearing practices.
14 23 Prior to accepting the testimony of a qualified expert witness
14 24 described in this lettered paragraph, the court shall document
14 25 the efforts made to secure a qualified expert witness
14 26 described in paragraphs "a", "b", and "c". The efforts shall
14 27 include but are not limited to contacting the Indian child's
14 28 tribe's governing body, that tribe's Indian Child Welfare Act
14 29 office, and the tribe's social service office.
14 30 Sec. 9. NEW SECTION. 232B.8 STANDARD OF PROOF – CHANGE
14 31 OF PLACEMENT – PLACEMENT ORDER VACATED.
14 32 1. A placement action resulting from a child custody
14 33 proceeding may be invalidated upon a showing that the action
14 34 violated any provision of 25 U.S.C. } 1911, 1912, or 1913 or
14 35 this chapter.
15 1 2. Notwithstanding any other law to the contrary, if a
15 2 final decree of adoption of an Indian child has been vacated
15 3 or set aside or the adoptive parents voluntarily consent to
15 4 the termination of parental rights to the Indian child, a
15 5 biological parent of the child or prior Indian custodian may
15 6 petition for return of custody and the court shall grant such
15 7 petition unless there is a showing, in a proceeding subject to
15 8 the provisions of this chapter, that the return of custody is
15 9 not in the best interest of the child.
15 10 3. If an Indian child is removed from a foster care
15 11 placement for the purpose of further foster care or
15 12 preadoptive or adoptive placement, the placement shall be in
15 13 accordance with this chapter, unless the Indian child is being
15 14 returned to the parent or Indian custodian from whose custody
15 15 the child was originally removed.
15 16 4. If a petitioner in an Indian child custody proceeding
15 17 before a state court has improperly removed the child from
15 18 custody of the parent or Indian custodian or has improperly
15 19 retained custody after a visit or other temporary
15 20 relinquishment of custody, the court shall decline
15 21 jurisdiction over the petition and shall immediately order the
15 22 child to be returned to the child's parent or Indian custodian
15 23 unless returning the child to the parent or custodian would
15 24 subject the child to a substantial and immediate danger or
15 25 threat of such danger.
15 26 5. A voluntary placement of an Indian child shall be in
15 27 compliance with the federal Indian Child Welfare Act, as set
15 28 forth in 25 U.S.C. } 1913, subject to the additional
15 29 provisions contained in this chapter.
15 30 6. An appellate court shall vacate a state court order and
15 31 remand the case for appropriate disposition for any of the
15 32 following violations in a child custody proceeding:
15 33 a. Failure to notify an Indian parent, Indian custodian,
15 34 extended family member, or tribe as required by the federal
15 35 Indian Child Welfare Act or this chapter.
16 1 b. Failure to recognize the legitimate jurisdiction of an
16 2 Indian tribe.
16 3 c. Failure, without cause as specified under this chapter,
16 4 to transfer jurisdiction to an Indian tribe appropriately
16 5 seeking transfer.
16 6 d. Failure to give full faith and credit to the public
16 7 acts, records, or judicial proceedings of an Indian tribe.
16 8 e. Failure to allow intervention by an Indian custodian or
16 9 Indian tribe, or if applicable, an extended family member as
16 10 authorized by the federal Indian Child Welfare Act or this
16 11 chapter.
16 12 f. Failure to return the child to the child's parent or
16 13 Indian custodian when removal or placement is no longer
16 14 necessary to prevent imminent physical damage or harm.
16 15 g. Failure to provide the testimony of qualified expert
16 16 witnesses as required by this chapter.
16 17 Sec. 10. NEW SECTION. 232B.9 PLACEMENT PREFERENCES.
16 18 1. In any adoptive or other permanent placement of an
16 19 Indian child, preference shall be given, in the absence of a
16 20 showing of good cause to the contrary, to a placement with one
16 21 of the following, in descending priority order:
16 22 a. A member of the Indian child's family.
16 23 b. Other members of the Indian child's tribe.
16 24 c. Another Indian family.
16 25 d. A non-Indian family approved by the Indian child's
16 26 tribe.
16 27 e. A non-Indian family that is equipped and committed to
16 28 enabling the child to have extended family visitation and
16 29 participation in cultural and ceremonial events of the child's
16 30 tribe.
16 31 2. An emergency removal, foster care, or preadoptive
16 32 placement of an Indian child shall be in the least restrictive
16 33 setting which most approximates a family situation and in
16 34 which the child's special needs, if any, may be met. The
16 35 child shall also be placed within reasonable proximity to the
17 1 child's home, taking into account any special needs of the
17 2 child. Preference shall be given, in the absence of a showing
17 3 of good cause to the contrary, to the child's placement with
17 4 one of the following, in descending priority order:
17 5 a. A member of the Indian child's family.
17 6 b. A foster home licensed, approved, or specified by the
17 7 Indian child's tribe.
17 8 c. An Indian foster home licensed or approved by an
17 9 authorized non-Indian licensing authority.
17 10 d. A non-Indian foster care home licensed under chapter
17 11 237 approved by the Indian child's tribe.
17 12 3. The standards to be applied in meeting the placement
17 13 preferences required by this section shall be the prevailing
17 14 social and cultural standards of the Indian community in which
17 15 the parent or extended family members of an Indian child
17 16 reside, or with which such parent or extended family members
17 17 maintain social and cultural ties. In the absence of a
17 18 determination regarding the most appropriate placement, the
17 19 court may consider the prevailing social and cultural
17 20 standards of the Indian child's tribe, which shall be applied
17 21 in qualifying any placement having a preference under this
17 22 section. In either case, the social and cultural standards
17 23 shall be confirmed by the testimony or other documented
17 24 support of qualified expert tribal witnesses.
17 25 4. As appropriate, the placement preference of the Indian
17 26 child or parent shall be considered. In applying the
17 27 preferences, a consenting parent's request for anonymity shall
17 28 also be given weight by the court or agency effecting the
17 29 placement.
17 30 5. Unless there is clear and convincing evidence that
17 31 placement within the applicable order of preference would be
17 32 harmful to the Indian child, consideration of the preference
17 33 of the Indian child or parent or a parent's request for
17 34 anonymity shall not be a basis for placing an Indian child
17 35 outside of the applicable order of preference.
18 1 6. There are no exceptions to the application of the
18 2 federal Indian Child Welfare Act or this chapter in a child
18 3 custody proceeding regarding an Indian child. The courts of
18 4 this state do not have discretion to determine whether an
18 5 Indian child is part of an existing Indian family.
18 6 Sec. 11. NEW SECTION. 232B.10 EMERGENCY REMOVAL OF
18 7 INDIAN CHILD.
18 8 1. A petition commencing an emergency removal or foster
18 9 care placement proceeding under chapter 232 involving an
18 10 Indian child shall be accompanied by all of the following:
18 11 a. An affidavit containing the names, tribal affiliations,
18 12 and addresses of the Indian child, and of the child's parents
18 13 and Indian custodians.
18 14 b. A specific and detailed account of the circumstances
18 15 supporting the removal of the child.
18 16 c. Official reports from each public or private agency
18 17 involved with the emergency removal. The reports shall
18 18 include all of the following information:
18 19 (1) The name of each agency.
18 20 (2) The names of agency administrators and professionals
18 21 involved in the removal.
18 22 (3) A description of the emergency justifying the removal
18 23 of the child.
18 24 (4) All observations made and actions taken by the agency.
18 25 (5) The date, time, and place of each such action.
18 26 (6) The signatures of all agency personnel involved.
18 27 d. A statement of the specific actions taken and to be
18 28 taken by each involved agency to effectuate the safe return of
18 29 the child to the custody of the child's parent or Indian
18 30 custodian.
18 31 2. In any emergency hearing or emergency removal hearing
18 32 involving an Indian child, the court issuing the order shall
18 33 immediately notify the Indian child's tribe of the emergency
18 34 removal or placement by registered mail, return receipt
18 35 requested. If the child is removed or placed on an emergency
19 1 basis by the department of human services without a hearing,
19 2 the department shall immediately notify the Indian child's
19 3 tribe of the emergency removal or placement by registered
19 4 mail, return receipt requested. The court's or department's
19 5 immediate notice shall be mailed not more than three days from
19 6 the date the order was issued or removal was made. The notice
19 7 shall include the petition, court order, any information
19 8 required by this chapter, and a statement informing the
19 9 child's tribe of the tribe's right to intervene in the
19 10 proceeding. A hearing following the emergency removal or
19 11 placement of an Indian child shall be held not more than
19 12 fifteen days following the date of the emergency removal or
19 13 emergency removal hearing, whichever occurred first.
19 14 3. An emergency removal or placement of an Indian child
19 15 shall immediately terminate, and any court order approving the
19 16 removal or placement shall be vacated, when the removal or
19 17 placement is no longer necessary to prevent imminent physical
19 18 damage or harm to the child. In no case shall an emergency
19 19 removal or placement order remain in effect for more than
19 20 fifteen days unless, upon a showing that continuation of the
19 21 order is necessary to prevent imminent physical damage or harm
19 22 to the child, the court extends the order for a period not to
19 23 exceed an additional thirty days. If the Indian child's tribe
19 24 has been identified, the court shall notify the tribe of the
19 25 date and time of any hearing scheduled to determine whether to
19 26 extend an emergency removal or placement order.
19 27 4. Upon termination of the emergency removal or placement
19 28 order, the child shall immediately be returned to the custody
19 29 of the child's parent or Indian custodian unless any of the
19 30 following circumstances exist:
19 31 a. The child is transferred to the jurisdiction of the
19 32 child's tribe.
19 33 b. In an involuntary foster care placement proceeding
19 34 pursuant to the federal Indian Child Welfare Act, the court
19 35 orders that the child shall be placed in foster care upon a
20 1 determination, supported by clear and convincing evidence,
20 2 including testimony by qualified expert witnesses, that
20 3 custody of the child by the child's parent or Indian custodian
20 4 is likely to result in serious emotional or physical damage to
20 5 the child.
20 6 c. The child's parent or Indian custodian voluntarily
20 7 consents to the foster care placement of the child pursuant to
20 8 the provisions of the federal Indian Child Welfare Act.
20 9 5. This chapter shall not be construed to prevent the
20 10 emergency removal of an Indian child who is a resident of or
20 11 is domiciled on an Indian reservation, but is temporarily
20 12 located off the reservation, or is away from the child's
20 13 parent or Indian custodian, or the emergency placement of such
20 14 child in a foster home or institution, under applicable state
20 15 law, in order to prevent imminent physical damage or harm to
20 16 the child. The state shall immediately notify the child's
20 17 tribe of the emergency removal. In a case of emergency
20 18 removal of an Indian child, regardless of residence or
20 19 domicile of the child, the state shall ensure that the
20 20 emergency removal or placement terminates immediately when the
20 21 removal or placement is no longer necessary to prevent
20 22 imminent physical damage or harm to the child and shall
20 23 expeditiously initiate a child custody proceeding subject to
20 24 the provisions of this chapter, transfer the child to the
20 25 jurisdiction of the appropriate Indian tribe, or restore the
20 26 child to the child's parent or Indian custodian, as may be
20 27 appropriate.
20 28 Sec. 12. NEW SECTION. 232B.11 RECORDS.
20 29 1. A party to a child custody proceeding under state law
20 30 involving an Indian child has the right to examine all reports
20 31 or other documents filed with the court upon which any
20 32 decision with respect to the proceeding may be based.
20 33 2. An Indian child's placement record shall be maintained
20 34 in perpetuity by the department of human services and shall
20 35 include, but not be limited to, all of the following
21 1 information:
21 2 a. The name and tribal affiliation of the child.
21 3 b. The location of the child's Indian tribe or tribes.
21 4 c. The names and addresses of the child's biological
21 5 parents.
21 6 d. The child's certificate of degree of Indian blood or
21 7 tribal equivalent.
21 8 e. The child's tribal enrollment or other membership
21 9 documentation, if any.
21 10 f. The child's medical records.
21 11 g. The social and medical history of the child's
21 12 biological family.
21 13 h. The names, ages, and gender of the child's siblings.
21 14 i. The names, ages, and gender of the child's kinship or
21 15 extended family members.
21 16 j. The names and addresses of the child's adoptive
21 17 parents.
21 18 k. The identity of any agency having files or information
21 19 relating to the placement.
21 20 l. All reports concerning the child or the child's family,
21 21 including detailed information regarding case plans and other
21 22 efforts to rehabilitate the parents of the child.
21 23 m. A record of efforts made to place the child within and
21 24 outside of the placement preferences required by this chapter.
21 25 n. A statement of the reason for the final placement
21 26 decision.
21 27 3. A record maintained by the department of human services
21 28 pursuant to this section shall be made available within seven
21 29 days of a request for the record by the Indian child's tribe
21 30 or the secretary of the interior.
21 31 4. The department of human services, or the department's
21 32 designee, shall make all records relating to a proceeding
21 33 under this chapter available within a reasonable period after
21 34 request by any of the following persons: an Indian child who
21 35 is eighteen years of age and was subject to the proceeding,
22 1 the Indian child's parent, the Indian child's Indian
22 2 custodian, an attorney representing a party to the proceeding,
22 3 the Indian child's guardian ad litem, the Indian child's
22 4 guardian, the Indian child's legal custodian, a descendant of
22 5 the Indian child subject to the proceeding, or the Indian
22 6 child's tribe.
22 7 5. If a parent of an Indian child wishes to remain
22 8 anonymous, identifying records concerning any such parent
22 9 shall not be released unless necessary to secure, maintain, or
22 10 enforce the Indian child's right to enrollment or membership
22 11 in the child's Indian tribe, for determining a right or
22 12 benefit associated with the enrollment or membership, or for
22 13 determining a right to an inheritance.
22 14 6. Upon application by an Indian individual who has
22 15 reached the age of eighteen and who was the subject of an
22 16 adoptive placement under this chapter, the court which entered
22 17 the final decree shall inform the individual of the tribal
22 18 affiliation, if any, of the individual's biological parents,
22 19 and provide such other information as may be necessary to
22 20 protect any rights flowing from the individual's tribal
22 21 relationship. In addition, the court shall provide the
22 22 individual, through an appropriate order, if necessary, with
22 23 any of the information listed in subsection 2 as may be
22 24 secured from the records maintained by the department of human
22 25 services.
22 26 Sec. 13. NEW SECTION. 232B.12 AGREEMENTS WITH TRIBES FOR
22 27 CARE AND CUSTODY OF INDIAN CHILDREN.
22 28 1. The director of human services or the director's
22 29 designee shall make a good faith effort to enter into
22 30 agreements with Indian tribes regarding jurisdiction over
22 31 child custody proceedings and the care and custody of Indian
22 32 children whose tribes have land within Iowa, including but not
22 33 limited to the Sac and Fox tribe, the Omaha tribe, the Ponca
22 34 tribe, and the Winnebago tribe, and whose tribes have an
22 35 Indian child who resides in the state of Iowa. An agreement
23 1 shall seek to promote the continued existence and integrity of
23 2 the Indian tribe as a political entity and the vital interest
23 3 of Indian children in securing and maintaining a political,
23 4 cultural, and social relationship with their tribes. An
23 5 agreement shall assure that tribal services and Indian
23 6 organizations or agencies are used to the greatest extent
23 7 practicable in planning and implementing any action pursuant
23 8 to the agreement concerning the care and custody of Indian
23 9 children. If tribal services are not available, an agreement
23 10 shall assure that community services and resources developed
23 11 specifically for Indian families will be used. An agreement
23 12 shall also assure that a plan is adopted to increase the
23 13 number of homes available to meet the placement preferences
23 14 set forth in this chapter, or as identified by the child's
23 15 tribe if different preferences are identified.
23 16 2. In the event that an agreement entered into between the
23 17 tribe and the department of human services pertaining to the
23 18 funding of foster care placements for Indian children
23 19 conflicts with any federal or state law, the state in a
23 20 timely, good-faith manner shall agree to amend the agreement
23 21 in a way that prevents any interruption of services to
23 22 eligible Indian children.
23 23 3. The state of Iowa recognizes the authority of Indian
23 24 tribes to license foster homes and to license agencies to
23 25 receive children for control, care, and maintenance outside of
23 26 their own homes, or to place, receive, arrange the placement
23 27 of, or assist in the placement of children for foster care or
23 28 adoption, and to contract with each other for such services.
23 29 The department and child-placing agencies licensed under
23 30 chapter 238 may place children in tribally licensed foster
23 31 homes and facilities.
23 32 Sec. 14. NEW SECTION. 232B.13 COMPLIANCE.
23 33 1. The department of human services in consultation with
23 34 the tribes listed in subsection 2 shall establish standards
23 35 for the department's review of cases subject to this chapter.
24 1 In counties in which compliance with this chapter has been
24 2 achieved, review shall continue to occur on a periodic basis,
24 3 but no less frequently than every three years. In counties in
24 4 which compliance with this chapter has not been achieved,
24 5 procedures to address noncompliance shall be implemented to
24 6 achieve compliance in all cases and prevent future
24 7 noncompliance. In counties in which compliance has not been
24 8 achieved, review shall continue to occur on an annual basis
24 9 until compliance is achieved.
24 10 2. The director of human services shall execute an
24 11 agreement with those tribes that have land within Iowa,
24 12 including the Sac and Fox, the Omaha, the Ponca, and the
24 13 Winnebago. This agreement shall identify an Indian Child
24 14 Welfare Act compliance review team which shall monitor
24 15 compliance with the federal and state Indian Child Welfare
24 16 Acts and shall be composed of one representative from each of
24 17 the identified tribes, one representative from the department
24 18 of human services, one representative from a private child-
24 19 placing agency, and two representatives designated by the
24 20 supreme court.
24 21 3. The compliance review team shall establish and maintain
24 22 a monitoring program that will reduce noncompliance with the
24 23 federal and Iowa Indian child welfare Acts by county agencies
24 24 which might result in federal fiscal sanctions. The
24 25 department of human services shall issue corrective orders
24 26 defining the violation of the law and requiring a written
24 27 corrective action plan to respond to the documented
24 28 violations, as determined by the compliance review team.
24 29 Sanctions may be proposed prior to issuing a corrective order
24 30 or applying fiscal sanctions.
24 31 4. The federal Indian Child Welfare Act requires the state
24 32 to outline the measures that will be taken to assure
24 33 compliance with the federal Indian Child Welfare Act. In
24 34 complying with the federal Indian Child Welfare Act, the
24 35 department of human services shall adhere to the provisions of
25 1 the state plan for services under Title IV-E of the federal
25 2 Social Security Act, entitled, "Maintain and Strengthen
25 3 Compliance with the Indian Child Welfare Act", emphasizing
25 4 Objective E, numbers 3 and 6.
25 5 Sec. 15. NEW SECTION. 232B.14 PAYMENT OF FOSTER CARE
25 6 EXPENSES.
25 7 1. If the department of human services has legal custody
25 8 of an Indian child and that child is placed in foster care
25 9 according to the placement preferences under this chapter, the
25 10 state shall pay, subject to any applicable federal funding
25 11 limitations and requirements, the cost of the foster care in
25 12 the manner and to the same extent the state pays for foster
25 13 care of non-Indian children, including the administrative and
25 14 training costs associated with the placement. In addition,
25 15 the state shall pay the other costs related to the foster care
25 16 placement of an Indian child as may be provided for in an
25 17 agreement entered into between a tribe and the state.
25 18 2. The department of human services may, subject to any
25 19 applicable federal funding limitations and requirements and
25 20 within funds appropriated for foster care services, purchase
25 21 care for Indian children who are in the custody of a federally
25 22 recognized Indian tribe or tribally licensed child-placing
25 23 agency pursuant to parental consent, tribal court order, or
25 24 state court order; and the purchase of the care is subject to
25 25 the same eligibility standards and rates of support applicable
25 26 to other children for whom the department purchases care.
25 27 Sec. 16. Section 600.1, Code 2003, is amended by adding
25 28 the following new unnumbered paragraph:
25 29 NEW UNNUMBERED PARAGRAPH. If a proceeding held under this
25 30 chapter involves an Indian child as defined in section 232B.2
25 31 and the proceeding is subject to the Iowa Indian child welfare
25 32 Act under chapter 232B, the proceeding and other actions taken
25 33 in connection with the proceeding or this chapter shall comply
25 34 with chapter 232B.
25 35 Sec. 17. Section 600A.3, Code 2003, is amended by adding
26 1 the following new unnumbered paragraph:
26 2 NEW UNNUMBERED PARAGRAPH. If a proceeding held under this
26 3 chapter involves an Indian child as defined in section 232B.2
26 4 and the proceeding is subject to the Iowa Indian child welfare
26 5 Act under chapter 232B, the proceeding and other actions taken
26 6 in connection with the proceeding or this chapter shall comply
26 7 with chapter 232B.
26 8 Sec. 18. COMPLIANCE ACTIVITIES – EFFECTIVE DATE.
26 9 1. The initial review of compliance with the requirements
26 10 of chapter 232B made pursuant to section 232B.13, as enacted
26 11 by this Act, shall be completed by June 30, 2004.
26 12 2. The director of human services shall execute the
26 13 agreement required by section 232B.13, subsection 2, as
26 14 enacted by this Act, within one hundred twenty calendar days
26 15 of the date of the governor's approval of this Act.
26 16 3. This section, being deemed of immediate importance,
26 17 takes effect upon enactment.
26 18 EXPLANATION
26 19 This bill implements the federal Indian Child Welfare Act
26 20 of 1978. The bill establishes requirements for the courts,
26 21 department of human services, and others for use in any
26 22 voluntary or involuntary child custody proceeding that may
26 23 result in an Indian child's adoptive placement, preadoptive
26 24 placement, foster care placement, termination of parental
26 25 rights, or other permanent placement.
26 26 The bill addresses definitions, determination of a child's
26 27 Indian status, notice of proceedings, transfers of
26 28 jurisdiction, emergency removals, preferences for permanent
26 29 out-of-home placements, usage of tribally recognized expert
26 30 witnesses, agreements with tribes for care and custody of
26 31 Indian children, payment of foster care expenses, compliance,
26 32 and maintenance of records in perpetuity.
26 33 The bill amends Code chapter 232, the juvenile justice
26 34 code, Code chapter 600, relating to adoptions, and Code
26 35 chapter 600A, relating to termination of parental rights, to
27 1 provide that if a proceeding held under any of those Code
27 2 chapters involves an Indian child and the proceeding is
27 3 subject to the Iowa Indian child welfare Act, the proceeding
27 4 and other actions taken in connection with the proceeding or
27 5 the applicable Code chapter must comply with Code chapter
27 6 232B.
27 7 The bill provides that the department of human services
27 8 must complete the initial review of compliance by June 30,
27 9 2004. In addition, the director of human services must
27 10 execute an agreement with the tribes that have land within
27 11 Iowa for creation of an Indian Child Welfare Act compliance
27 12 team. The agreement must be executed within 120 days of the
27 13 date of the governor's approval of the bill. The compliance
27 14 activities provisions take effect upon enactment.
27 15 LSB 1964SS 80
27 16 jp/cf/24.1
Text: SF00311 Text: SF00313 Text: SF00300 - SF00399 Text: SF Index Bills and Amendments: General Index Bill History: General Index
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