In the Interest of M.W.-T. and C.W.-T., Minor Children

IN THE COURT OF APPEALS OF IOWA

No. 24-0076
Filed August 7, 2024

IN THE INTEREST OF M.W.T. and C.W.T.,
Minor Children,

T.D., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Rachael E. Seymour,

Judge.

A mother appeals the termination of her parental rights, drawing on

provisions of the Iowa Indian Child Welfare Act. REVERSED AND REMANDED.

Johnathan Sears of Clark & Sears Law, PLLC, Des Moines, for appellant

mother.

Brenna Bird, Attorney General, and Mackenzie L. Moran, Assistant Attorney

General, for appellee State.

Lynn Vogan of Juvenile Public Defender’s Office, Des Moines, attorney and

guardian ad litem for minor children.

Considered by Greer, P.J., and Badding and Buller, JJ.
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BULLER, Judge.

This appeal turns on Iowa’s Indian Child Welfare Act (Iowa ICWA) and two

specific provisions that impose requirements that differ from the legal standards

applied to other child-welfare proceedings. See Iowa Code ch. 232B (2023). The

mother appeals the termination of her parental rights concerning “active efforts” to

preserve the family and the record made with a “qualified expert witness” on

whether the pertinent tribe’s “culture, customs, and laws” would support

termination. Based on the plain language of Iowa ICWA, we find the record

deficient on the “culture, customs, and laws” question, and we reverse and

remand.

I. Background Facts and Proceedings

The Iowa Department of Health and Human Services (HHS) removed

M.W.T. (born 2016) and C.W.T. (born 2018) from the mother’s custody in

early 2022. The mother has a history of prior cases with HHS that resulted in the

termination of her rights to older children.

Without dwelling too long on the facts, given the narrow legal issues

presented on appeal, HHS’s concerns about the mother included her violation of

a no-contact order, failure to supervise the children, methamphetamine and other

controlled-substance abuse by the mother and her paramour, failure to provide

adequate dental and mental-health care for the children, and physical abuse

reported by the children after removal. A criminal matter arose out of these

concerns, and the mother pled guilty to two counts of child endangerment,

aggravated misdemeanors in violation of Iowa Code section 726.6(1)(a) (2022),

for creating a substantial risk to the children’s physical, mental, or emotional health
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or safety. The no-contact order flowing from the convictions remained in effect as

of the termination trial, limiting the mother’s contact with the children to HHS-

supervised visits.

Paternity testing ultimately resulted in tribal contact and a determination that

Iowa ICWA applied to both children. The juvenile court directed HHS to provide

“active efforts” toward reunification, among other Iowa ICWA requirements.

By the time of the termination trial, the mother had made limited but

ultimately unsuccessful efforts to address HHS’s concerns. Following the

recommendations of HHS, the assistant county attorney, and the children’s

guardian ad litem, the juvenile court terminated the mother’s parental rights under

Iowa Code section 232.116(1)(d), (f), (g), (i), and (l) (2023). The court also

terminated the father’s parental rights on multiple grounds including consent.

Only the mother appeals, and she only raises issues under Iowa ICWA. We

review de novo. In re J.D.B., 584 N.W.2d 577, 580 (Iowa Ct. App. 1998).

II. Discussion

The mother’s two Iowa ICWA challenges concern “active efforts” under Iowa

Code section 232B.5(19) and the testimony of a “qualified expert witness” about

the tribe’s “culture, customs, and laws” under section 232B.10(2). We address the

second challenge first, finding it dispositive.

Iowa ICWA requires specific testimony from a “qualified expert witness”

about the tribe’s “culture, customs, and laws” at the termination trial:

In considering whether to involuntarily place an Indian child in foster
care or to terminate the parental rights of the parent of an Indian
child, the court shall require that qualified expert witnesses with
specific knowledge of the child’s Indian tribe testify regarding that
tribe’s family organization and child-rearing practices, and regarding
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whether the tribe’s culture, customs, and laws would support the
placement of the child in foster care or the termination of parental
rights on the grounds that continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or
physical damage to the child.

Iowa Code § 232B.10(2) (emphasis added). The mother asserts on appeal that,

while the expert at her trial met the foundational requirements set forth in the Code,

the expert’s testimony did not address the italicized portion above, concerning the

tribe’s “culture, customs, and laws” on termination. In interpreting this provision,

we have held that the qualified expert is not required to recommend termination

but must address whether “the tribe’s culture, customs, or laws would support

termination on that ground.” In re D.S., 806 N.W.2d 458, 471 (Iowa Ct. App. 2011).

In other words, the testimony need not address whether the expert personally

supports termination, but instead whether the tribe’s culture, customs, or laws

would generally support termination when a child faces a likelihood of serious

physical or emotional damage when left in a parent’s custody. See id.

The expert in this case, Shirley Bad Wound, gave brief testimony that did

not directly or indirectly address whether the tribe’s culture, customs, or laws would

generally support termination. The bulk of Bad Wound’s testimony addressed

whether the children could enroll in the tribe in the future, which does not bear on

the “culture, customs, or laws” inquiry under section 232B.10(2). While there was

some brief discussion of a “tribal customary adoption,” Bad Wound was not asked

about and did not explain the standards for such an adoption or how it compared

to termination based on the children’s welfare generally or the likely risk of serious

physical or emotional damage specifically.
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The juvenile court also recognized this deficiency in its order, and rather

than paraphrase we reproduce the analysis in full:

Mother’s counsel points out the qualified expert witness must
also provide testimony of whether the tribe[’]s culture and laws would
support termination of parental rights on the grounds that continued
custody of the child by a parent is likely to result in serious emotional
or physical damage. In his written closing, he argues the County
Attorney failed to elicit such testimony.
Court agrees the County Attorney did not directly ask about
this. However, Ms. Bad Wound’s testimony related to another
question provided the required answer, even though it was not
directly solicited. The County Attorney asked Ms. Bad Wound
whether there was a way in their tribal culture to do a “tribal
adoption.” This is a relatively new mechanism where the identified
tribe and state court work together, instead of having either the state
or tribe have exclusive jurisdiction, which allows the tribe [to] make[ ]
determinations regarding “termination” but also allows for genuine
permanency for the children by way of adoption. This collaboration
allows the children to maintain the tribal connection and allows for
the adoptive family to receive financial support through the state to
support the children.
Ms. Bad Wound indicated there is a way in their culture to do
a tribal adoption but went on to state that in similar cases to these
children, there were additional benefits to the adoptive family, so the
Tribe support the more traditional termination proceeding in state
court. Ms. Bad Wound[’]s answer regarding tribal adoption provided
the necessary evidence that the Tribe’s culture and laws would
support termination. Ms. Bad Wound testified, “I believe that they
are in a good place, and if their parents were able to do what they
had to do to get their children returned, then we would be in a
different court setting.” Given parents[’] lack of progress, the Tribe
was in support of termination.
Ms. Bad Wound testified the children would still be eligible for
enrollment and stressed the importance of the children being
exposed to and learning about their Tribal culture, laws and customs.
The children’s current custodians are supportive of continued
relationship between the children and the Tribe.

(Line breaks added for readability.) We agree with the juvenile court that the

assistant county attorney did not elicit any testimony directly responsive to the

“culture, customs, or laws” inquiry.
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But we cannot agree with the juvenile court’s read-between-the-lines

approach to finding the answer. The requirements of section 232B.10(2) are

specific, and the statute’s provisions must be “strictly construed” under our

published case law. In re C.A.V., 787 N.W.2d 96, 99 (Iowa Ct. App. 2010) (citation

omitted). Under this standard, we conclude cobbling together other aspects of an

expert’s testimony to unrelated questions is not permitted. We also note Bad

Wound did not actually testify “the Tribe was in support of termination,” as the

juvenile court found. Because Bad Wound’s generalized testimony regarding tribal

culture did not address the ultimate question of whether the tribe’s culture,

customs, and laws supported termination, we conclude the statute was not

satisfied and the juvenile court erred in granting the petition for termination of

parental rights.

We do not have abundant case law discussing the remedy for failure to

satisfy section 232B.10(2), but we have “reversed and remanded” in an

unpublished decision where no qualified expert witness testified. See In re D.W.,

No. 00-1677, 2001 WL 710205, at *5 (Iowa Ct. App. June 13, 2001). We conclude

that remedy is also appropriate here, with the caveat that this opinion is not

intended to displace the status quo from the underlying child-in-need-of-assistance

proceedings or any existing no-contact orders. Last, because we have reversed

and remanded, we decline to address the mother’s active-efforts claim. See id.

(“Because we have decided the case must be reversed and remanded, we need

not address the remaining issues [the parent] raises on appeal.”).

REVERSED AND REMANDED.