Iowa-2013-HF2259-Introduced

H.F. 2259 Section 1. Section 232B.3, subsections 5 and 6, Code 2014, 1 are amended to read as follows: 2 5. “Indian” means a person who is a member of an Indian 3 tribe, or is eligible for membership in an Indian tribe, or who 4 is an Alaska native and a member of a regional corporation as 5 defined in 43 U.S.C. §1606. 6 6. “Indian child” or “child” means an unmarried Indian 7 person who is under eighteen years of age or a child who is 8 under eighteen years of age that and is either a member of an 9 Indian tribe identifies as a child of the tribe’s community , 10 or is eligible for membership in an Indian tribe and is the 11 biological child of a member of an Indian tribe . 12 Sec. 2. Section 232B.5, subsection 10, unnumbered paragraph 13 1, Code 2014, is amended to read as follows: 14 Unless either of an Indian child’s parents objects, in any 15 child custody proceeding involving an Indian child who is not 16 domiciled or residing within the jurisdiction of the Indian 17 child’s tribe, the court , in the absence of good cause to the 18 contrary, shall transfer the proceeding to the jurisdiction 19 of the Indian child’s tribe, upon the petition of any of the 20 following persons: 21 Sec. 3. Section 232B.5, subsection 13, Code 2014, is amended 22 by adding the following new paragraphs: 23 NEW PARAGRAPH . e. The proceeding was at an advanced stage 24 when the petition to transfer was received and the petitioner 25 did not file the petition promptly after receiving notice of 26 the hearing. 27 NEW PARAGRAPH . f. The Indian child is over twelve years of 28 age and objects to the transfer. 29 NEW PARAGRAPH . g. The transfer is not in the best interest 30 of the child. 31 Sec. 4. Section 232B.9, subsection 1, unnumbered paragraph 32 1, Code 2014, is amended to read as follows: 33 In any adoptive or other permanent placement of an Indian 34 child, preference shall be given , in the absence of a showing 35 -1- LSB 5857YH (6) 85 ad/nh 1/ 5

H.F. 2259 of good cause to the contrary, to a placement with one of the 1 following, in descending priority order: 2 Sec. 5. Section 232B.9, subsection 2, unnumbered paragraph 3 1, Code 2014, is amended to read as follows: 4 An emergency removal, foster care, or preadoptive placement 5 of an Indian child shall be in the least restrictive setting 6 which most approximates a family situation and in which the 7 child’s special needs, if any, may be met. The child shall 8 also be placed within reasonable proximity to the child’s 9 home, taking into account any special needs of the child. In 10 any foster care or preadoptive placement, a preference shall 11 be given , in the absence of a showing of good cause to the 12 contrary, to the child’s placement with one of the following, 13 in descending priority order: 14 Sec. 6. Section 232B.9, subsections 4, 5, and 6, Code 2014, 15 are amended to read as follows: 16 4. An adoptive placement of an Indian child shall not be 17 ordered in the absence of a determination, supported by clear 18 and convincing evidence including the testimony of qualified 19 expert witnesses , that the placement of the child is in the 20 best interest of the child. 21 5. Notwithstanding the placement preferences listed 22 in subsections 1 and 2 , if a different order of placement 23 preference is established by the child’s tribe or in a binding 24 agreement between the child’s tribe and the state entered into 25 pursuant to section 232B.11 , in the absence of a showing of 26 good cause to the contrary, the court or agency effecting the 27 placement shall follow the order of preference established by 28 the tribe or in the agreement. 29 6. As appropriate, the placement preference of the 30 Indian child or parent shall be considered. In applying the 31 preferences, a consenting parent’s request for anonymity shall 32 also be given weight by the court or agency effecting the 33 placement. Unless there is clear and convincing evidence that 34 placement within the order of preference applicable under 35 -2- LSB 5857YH (6) 85 ad/nh 2/ 5

H.F. 2259 subsection 1, 2, or 5 would be harmful to the Indian child, 1 consideration of the preference of the Indian child or parent 2 or a parent’s request for anonymity shall not be a basis for 3 placing an Indian child outside of the applicable order of 4 preference. 5 EXPLANATION 6 The inclusion of this explanation does not constitute agreement with 7 the explanation’s substance by the members of the general assembly. 8 This bill relates to the Iowa Indian child welfare Act (Iowa 9 ICWA) by amending provisions found to be unconstitutional by 10 Iowa courts and making other changes. 11 Under Code section 232B.2, the purpose of the Iowa ICWA is to 12 clarify state policies and procedures regarding implementation 13 of the federal Indian Child Welfare Act (federal ICWA), enacted 14 in 1978. 15 The bill changes the definition of “Indian” and “Indian 16 child”. The bill eliminates language defining “Indian child” 17 as a child who is under 18 years of age that an Indian tribe 18 identifies as a child of the tribe’s community. The bill 19 provides that an “Indian child” is a person under 18 years of 20 age that is either a member of an Indian tribe, or is eligible 21 for membership and is the biological child of a member of an 22 Indian tribe. In the Iowa supreme court case, In re A.W. and 23 S.W., 741 N.W.2d 793 (Iowa 2007), the court found that the 24 language eliminated by the bill expanded the scope of the Iowa 25 ICWA beyond the group of children addressed by the federal 26 ICWA, violating the equal protection clause of the United 27 States Constitution and the equality provision of article I, 28 section 6, of the Iowa Constitution. The bill eliminates 29 language defining “Indian” as a person who is eligible for 30 membership in an Indian tribe. The definitions of “Indian” 31 and “Indian child” provided in the bill reflect the federal 32 language. 33 The bill adds circumstances that qualify as good cause 34 for a district court to deny a petition to transfer Indian 35 -3- LSB 5857YH (6) 85 ad/nh 3/ 5

H.F. 2259 child custody proceedings to a tribe. The bill also adds 1 language that a district court can deny a petition to transfer 2 Indian child custody proceedings to a tribe for good cause. 3 Circumstances qualifying as good cause pursuant to the bill 4 include that the proceeding was at an advanced stage and 5 the petitioner did not file a timely petition to transfer 6 jurisdiction, the objection of an Indian child over the age 7 of 12 to the transfer, and that the transfer is not in the 8 best interest of the Indian child. The Iowa court of appeals 9 ruled in In re J.L., 779 N.W.2d 481 (Iowa Ct. App. 2009), 10 that the exclusion of the child’s right to object to the 11 transfer and the exclusion of the child’s right to object to 12 the transfer based on the child’s best interests from the list 13 of circumstances constituting good cause to deny transfer 14 of custody proceedings violated the child’s substantive due 15 process rights. In In re J.W., 528 N.W.2d 657 (Iowa Ct. App. 16 1995), the court of appeals also affirmed the denial of a 17 petition to transfer jurisdiction when the proceeding was at an 18 advanced stage and the petitioner did not file the petition in 19 a timely manner after receiving notice of the hearing. 20 The bill also amends provisions in Code section 232B.9 21 relating to preferences for adoption and other permanent 22 placement, emergency removal, foster care, or preadoptive 23 placement of an Indian child to allow a good cause exception 24 to the specified placement preferences. The bill eliminates 25 language that provides that consideration of the preference 26 of the Indian child or the parent or parent’s request for 27 anonymity cannot be used as the basis for deviating from 28 the order of placement otherwise specified in the Iowa ICWA 29 unless there is clear and convincing evidence that using the 30 order of placement would be harmful to the Indian child. The 31 Iowa supreme court ruled in In re N.N.E., 752 N.W.2d 1 (Iowa 32 2008), that the federal ICWA allows the court to deviate 33 for good cause from placement preferences and that the high 34 burden in the Iowa ICWA to deviate from placement preferences 35 -4- LSB 5857YH (6) 85 ad/nh 4/ 5

H.F. 2259 for good cause violates a parent’s substantive due process 1 rights. Although the facts addressed in the ruling applied to 2 a voluntary termination of parental rights, the court noted 3 that the placement preferences in the Iowa ICWA also apply to 4 emergency removal, foster care, and preadoptive placements. 5 The bill eliminates the requirement for expert testimony at 6 an adoption hearing for an Indian child. 7 -5- LSB 5857YH (6) 85 ad/nh 5/ 5