In the Interest of C.S., Minor Child

IN THE COURT OF APPEALS OF IOWA

No. 18-1890
Filed March 20, 2019

IN THE INTEREST OF C.S.,
Minor Child,

M.U., Mother,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Plymouth County, Robert J. Dull,

District Associate Judge.

A mother challenges a juvenile court order transferring jurisdiction from the

Iowa District Court to the Wind River Tribal Court. APPEAL DISMISSED.

Jim L. Bybee of Bybee Law Office, P.C., Le Mars, for appellant mother.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee State.

Shelley Mbonu of Northern Arapaho Tribe, Fort Washakie, Wyoming, pro

se appellee

Meret Thali of Juvenile Law Center, Sioux City, attorney and guardian ad

litem for minor child.

Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.
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VAITHESWARAN, Judge.

A child born in 2016 came to the attention of the department of human

services based on his mother’s conduct. The district court adjudicated him in need

of assistance but left him in his mother’s care. Later, the court transferred the child

to his maternal grandmother’s care.

The child’s father was an enrolled member of Wyoming’s Northern Arapaho

Tribe. The district court notified the tribe of the pending action. The tribe in turn

notified the district court that the child was eligible for enrollment. Nonetheless,

the district court deemed the Indian Child Welfare Act inapplicable.

The State eventually filed a petition to terminate parental rights. The court

held an evidentiary hearing. While the matter was pending, the tribe filed a petition

to transfer jurisdiction of the case to the tribal court. The tribe did not serve the

mother with the petition.

Three days after the transfer petition was filed, the district court ordered a

transfer of the case to the tribal court and a transfer of the child to “the Wind River

Indian Reservation.” The mother timely moved to amend or enlarge the findings

and conclusions. She asserted the court entered the transfer order “without a

hearing” and failed to afford the parents “sufficient time to object to the application.”

She formally objected and asserted she had evidence to support her objection.

The mother also requested a stay of the transfer order.

The district court granted the stay request pending resolution of the

mother’s motion. Shortly thereafter, the court denied the motion, reasoning in part

that “the movant failed to personally appear for hearing on the termination of her
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parental rights or present evidence.” The court dismissed the Iowa case before

ruling on the pending termination petition.

The mother filed a notice of appeal. She contends the court erred in

“transferring jurisdiction to the Wind River Tribal Court three days after the Tribe

had filed the request and without further notice or hearing.”

“Ordinarily, an appeal is moot if the ‘issue becomes nonexistent or

academic and, consequently, no longer involves a justiciable controversy.’” In re

B.B., 826 N.W.2d 425, 428 (Iowa 2013) (citation omitted). “It is our duty on our

own motion to refrain from determining moot questions.” Homan v. Branstad, 864

N.W.2d 321, 327 (Iowa 2015) (citation omitted).

The mother did not renew her request for a stay of the district court decision

pending appeal. See Iowa R. App. P. 6.604(1) (governing applications for stays

of district court judgments involving child custody). In a supplemental filing

requested by this court, the tribe stated the child “is currently in the custody of the

Northern Arapaho Department of Family Services, which manages family services

for [the tribe] under contract with the State of Wyoming.” See In re L.H., 480

N.W.2d 43, 45 (Iowa 1992) (“Matters that are technically outside the record may

be submitted in order to establish or counter a claim of mootness. We consider

matters that have transpired during the appeal for this limited purpose.”).

Because the district court’s ruling was not stayed pending appeal and the

child was transferred to the State of Wyoming, the issue raised by the mother is

now academic. See Homan, 864 N.W.2d at 329 (“Our resolution of the present

case will not affect that outcome.”); cf. In re M.M., 65 Cal. Rptr. 3d 273, 287 (Cal.

Ct. App. 2007) (“The loss of jurisdiction that has led us to conclude that this appeal
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must be dismissed might have been averted had Minor’s counsel sought an

immediate stay of the transfer order pending Minor’s exhaustion of his appellate

remedies.”).1 The matter is moot, and the appeal must be dismissed.2

APPEAL DISMISSED.

Mullins, J., concurs; Vogel, C.J., concurs specially.

1
The California court predicated its holding on a loss of subject-matter jurisdiction. We
predicate our holding on the mootness doctrine.
2 We decline to apply an exception to the mootness doctrine for a matter of broad public

importance because the right to object has been addressed by this court in a published
opinion. See B.B., 826 N.W.2d at 428–29 (“[O]ne exception permits appellate review of
otherwise moot issues when the issue is one of broad public importance likely to recur.”);
In re J.L., 779 N.W.2d 481, 485–87 (Iowa Ct. App. 2009) (examining federal and Iowa
ICWA language on persons entitled to object to transfer).
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VOGEL, Chief Judge (concurring specially).

I agree with the majority that since no stay was requested, this matter is

moot and the appeal should be dismissed. See Iowa R. App. P. 6.604(1) (providing

“the appellate court may, in its discretion, stay any district court order . . . affecting

the custody of a child . . . during the pendency of the appeal”). However, I write

separately to address what should occur upon the objection of a parent to the

transfer of jurisdiction to a tribe.

Here, the Northern Arapaho Tribe filed a petition to transfer jurisdiction on

October 2, 2018. In response, the juvenile court, on October 5, dismissed the

pending juvenile court proceedings. See Iowa Code § 232B.5(10) (2018) (“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 shall transfer the proceeding to the jurisdiction of the Indian

child’s tribe.”). On October 17, the mother moved to amend or enlarge the findings

and conclusions, asserting the juvenile court’s order was issued without a hearing.

Because she was not afforded a hearing or granted sufficient time to object to the

transfer of jurisdiction, she requested an immediate order staying all proceedings.

See id. § 232B.5(13) (“If a petition to transfer proceedings as described in [Iowa

Code section 232B.5(10)] is filed, the court shall find good cause to deny the

petition only if one or more of the following circumstances are shown to exist,”

which includes “[a]n objection to the transfer is entered in accordance with [Iowa

Code section 232B.5(10)].”); see also In re A.E., 572 N.W.2d 579, 581 (Iowa 1997)

(finding the federal statutory “language ‘absent objection by either parent’ gives

either parent veto power over the transfer”).
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Later the same day, at 4:38 p.m., the juvenile court granted the stay.

However, at 8:53 a.m. the next morning, October 18, after finding the mother failed

to personally appear for the termination hearing, the juvenile court denied the

mother’s motion to amend the dismissal of the juvenile case and transfer of

jurisdiction. It appears from the record the termination hearing had concluded, but

no written termination order had yet issued. The mother’s appeal is from that final

denial of her motion to amend or enlarge the dismissal of the juvenile case. I agree

with the State’s position that the juvenile court’s reasoning for denying the mother’s

motion to amend or enlarge finds no basis in the state or federal statute.

Although the mother did not assert a constitutional challenge at the district

court, under the statute this lack of notice and opportunity to be heard was clearly

insufficient. See Iowa Code § 232B.5(7) (“The notice in any involuntary child

custody proceeding involving an Indian child . . . shall include . . . [a] statement

listing the rights of the child’s parents,” including “the right to be granted up to an

additional twenty days from the receipt of the notice to prepare for the

proceeding.”); see also In re S.P., 672 N.W.2d 842, 845 (Iowa 2003) (“Notice of

the hearing and an opportunity to be heard appropriate to the nature of the case is

the most rudimentary demand of due process of law in proceedings affecting

parental rights to children.” (internal quotation marks and citation omitted)).

Had the mother sought to stay the action pending this appeal, she should

have then been granted a hearing on her resistance to transferring jurisdiction to

the tribal court.