HF 2259 (LSB 5857YH (6) 85)

HOUSE FILE 2259

BY  DAWSON

A BILL FOR

An Act relating to the Iowa Indian child welfare Act.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 232B.3, subsections 5 and 6, Code 2014, are amended to read as follows:
   5.  “Indian” means a person who is a member of an Indian tribe, or is eligible for membership in an Indian tribe, or who is an Alaska native and a member of a regional corporation as defined in 43 U.S.C. §1606.
   6.  “Indian child” or “child” means an unmarried Indian person who is under eighteen years of age or a child who is under eighteen years of age that and is either a member of an Indian tribe identifies as a child of the tribe’s community, or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
    Sec. 2.  Section 232B.5, subsection 10, unnumbered paragraph 1, Code 2014, is amended to read as follows:

   Unless either of an Indian child’s parents objects, in any child custody proceeding involving an Indian child who is not domiciled or residing within the jurisdiction of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer the proceeding to the jurisdiction of the Indian child’s tribe, upon the petition of any of the following persons:
    Sec. 3.  Section 232B.5, subsection 13, Code 2014, is amended by adding the following new paragraphs:
   NEW PARAGRAPH.  e.  The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.
   NEW PARAGRAPH.  f.  The Indian child is over twelve years of age and objects to the transfer.
   NEW PARAGRAPH.  g.  The transfer is not in the best interest of the child.
    Sec. 4.  Section 232B.9, subsection 1, unnumbered paragraph 1, Code 2014, is amended to read as follows:

   In any adoptive or other permanent placement of an Indian child, preference shall be given, in the absence of a showing of good cause to the contrary, to a placement with one of the following, in descending priority order:
    Sec. 5.  Section 232B.9, subsection 2, unnumbered paragraph 1, Code 2014, is amended to read as follows:

   An emergency removal, foster care, or preadoptive placement of an Indian child shall be in the least restrictive setting which most approximates a family situation and in which the child’s special needs, if any, may be met. The child shall also be placed within reasonable proximity to the child’s home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of a showing of good cause to the contrary, to the child’s placement with one of the following, in descending priority order:
    Sec. 6.  Section 232B.9, subsections 4, 5, and 6, Code 2014, are amended to read as follows:
   4.  An adoptive placement of an Indian child shall not be ordered in the absence of a determination, supported by clear and convincing evidence including the testimony of qualified expert witnesses, that the placement of the child is in the best interest of the child.
   5.  Notwithstanding the placement preferences listed in subsections 1 and 2, if a different order of placement preference is established by the child’s tribe or in a binding agreement between the child’s tribe and the state entered into pursuant to section 232B.11, in the absence of a showing of good cause to the contrary, the court or agency effecting the placement shall follow the order of preference established by the tribe or in the agreement.
   6.  As appropriate, the placement preference of the Indian child or parent shall be considered. In applying the preferences, a consenting parent’s request for anonymity shall also be given weight by the court or agency effecting the placement. Unless there is clear and convincing evidence that placement within the order of preference applicable under subsection 1, 2, or 5 would be harmful to the Indian child, consideration of the preference of the Indian child or parent or a parent’s request for anonymity shall not be a basis for placing an Indian child outside of the applicable order of preference.
EXPLANATION
The inclusion of this explanation does not constitute agreement with

the explanation’s substance by the members of the general assembly.
   This bill relates to the Iowa Indian child welfare Act (Iowa ICWA) by amending provisions found to be unconstitutional by Iowa courts and making other changes.
   Under Code section 232B.2, the purpose of the Iowa ICWA is to clarify state policies and procedures regarding implementation of the federal Indian Child Welfare Act (federal ICWA), enacted in 1978.
   The bill changes the definition of “Indian” and “Indian child”. The bill eliminates language defining “Indian child” as a child who is under 18 years of age that an Indian tribe identifies as a child of the tribe’s community. The bill provides that an “Indian child” is a person under 18 years of age that is either a member of an Indian tribe, or is eligible for membership and is the biological child of a member of an Indian tribe. In the Iowa supreme court case, In re A.W. and S.W., 741 N.W.2d 793 (Iowa 2007), the court found that the language eliminated by the bill expanded the scope of the Iowa ICWA beyond the group of children addressed by the federal ICWA, violating the equal protection clause of the United States Constitution and the equality provision of article I, section 6, of the Iowa Constitution. The bill eliminates language defining “Indian” as a person who is eligible for membership in an Indian tribe. The definitions of “Indian” and “Indian child” provided in the bill reflect the federal language.
   The bill adds circumstances that qualify as good cause for a district court to deny a petition to transfer Indian child custody proceedings to a tribe. The bill also adds language that a district court can deny a petition to transfer Indian child custody proceedings to a tribe for good cause. Circumstances qualifying as good cause pursuant to the bill include that the proceeding was at an advanced stage and the petitioner did not file a timely petition to transfer jurisdiction, the objection of an Indian child over the age of 12 to the transfer, and that the transfer is not in the best interest of the Indian child. The Iowa court of appeals ruled in In re J.L., 779 N.W.2d 481 (Iowa Ct. App. 2009), that the exclusion of the child’s right to object to the transfer and the exclusion of the child’s right to object to the transfer based on the child’s best interests from the list of circumstances constituting good cause to deny transfer of custody proceedings violated the child’s substantive due process rights. In In re J.W., 528 N.W.2d 657 (Iowa Ct. App. 1995), the court of appeals also affirmed the denial of a petition to transfer jurisdiction when the proceeding was at an advanced stage and the petitioner did not file the petition in a timely manner after receiving notice of the hearing.
   The bill also amends provisions in Code section 232B.9 relating to preferences for adoption and other permanent placement, emergency removal, foster care, or preadoptive placement of an Indian child to allow a good cause exception to the specified placement preferences. The bill eliminates language that provides that consideration of the preference of the Indian child or the parent or parent’s request for anonymity cannot be used as the basis for deviating from the order of placement otherwise specified in the Iowa ICWA unless there is clear and convincing evidence that using the order of placement would be harmful to the Indian child. The Iowa supreme court ruled in In re N.N.E., 752 N.W.2d 1 (Iowa 2008), that the federal ICWA allows the court to deviate for good cause from placement preferences and that the high burden in the Iowa ICWA to deviate from placement preferences for good cause violates a parent’s substantive due process rights. Although the facts addressed in the ruling applied to a voluntary termination of parental rights, the court noted that the placement preferences in the Iowa ICWA also apply to emergency removal, foster care, and preadoptive placements.
   The bill eliminates the requirement for expert testimony at an adoption hearing for an Indian child.