Opinion
No. 4-341 / 03-0961.
June 23, 2004.
Appeal from the Iowa District Court for Polk County, William Price, District Associate Judge.
A mother appeals from a review of the dispositional order in a child in need of assistance proceeding. AFFIRMED.
Tiffany Koenig and Christopher Kragnes, Sr., Des Moines, for appellant mother.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, John Sarcone, County Attorney, and Jennifer Galloway, Assistant County Attorney, for appellee.
Bryan Tingle of Tingle, Knight, Webster Juckette, P.L.C., Des Moines, for father.
Thomas Grabinski, Grinnell, for intervenor-Tribe.
Mike Bandstra, Des Moines, guardian ad litem for the minor children.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
A mother appeals from an order in a child in need of assistance proceeding placing two of her children with foster parents on an Indian settlement. She contends the juvenile court erred in ordering both children be placed on the settlement. She argues both children should have remained in their non-settlement foster care placement. We review her claim de novo. In re C.H., 652 N.W.2d 144, 147 (Iowa 2002).
Three children were involved in the CINA adjudication. However, the mother only appeals in regard to her two daughters. Therefore, we will only address these two children.
The two children in this case are C.F., age eight, and A.F., age two. The children have different fathers. C.F.'s father is a member of the Sac and Fox Tribe. A.F.'s father does not have Indian heritage. The mother also does not have Indian heritage.
Because C.F. is undisputedly an "Indian child" under the state and federal Indian Child Welfare Acts (ICWA), a preference is given to her placement with an Indian family, unless there is good cause shown to the contrary. 25 U.S.C. § 1915(a); Iowa Code § 232B.9 (2003). In determining whether good cause exists, we consider many factors including, but not necessarily limited to, the best interests of the child, the wishes of the biological parents, the suitability of persons for placement, and the child's ties to the tribe. In re A.E., J.E., S.E., X.E., 572 N.W.2d 579, 585 (Iowa 1997). The burden of establishing good cause is on the mother.
In December 2002, the children were placed with a non-settlement foster family. In the weeks leading up to the May 2003 hearing reviewing the dispositional order, C.F. learned she could be placed with a new foster family on the settlement. The testimony at the hearing indicated C.F.'s behavior began to change negatively. However, the testimony established C.F.'s main concern was being separated from her sister. Although any change in placement may be a difficult transition for a child, this is not good cause for failure to place C.F. with an Indian family.
The State failed to comply with the notice requirements of the ICWA. Had proper procedure been followed, C.F. could have been initially placed with an Indian family, thereby alleviating some of the difficulties that occur when a child's placement is changed.
The evidence presented at the hearing clearly shows it is in the children's best interest to remain together. C.F. and A.F. benefit from their continued close relationship, and separation would be detrimental to the children. Accordingly, it was proper to place A.F. with the settlement foster home along with C.F. We affirm.