              IN THE SUPREME COURT OF IOWA
                            No. 18 / 07-0583

                         Filed February 15, 2008


IN THE INTEREST OF N.V. and P.V.,

      Minor Children,

STATE OF IOWA,

      Appellant.
________________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Constance

Cohen, Juvenile Judge.



      The State appeals the decision by the district court to transfer this

case to a tribal court. AFFIRMED.



      Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant

Attorney General, and Andrea Vitzhum, Assistant County Attorney, for

appellant.



      Jeffrey S. Rasmussen of Olson Allen & Rasmussen, L.L.P.,

Bloomington, Minnesota, and Patrick Wilson, Marshalltown, for appellee

Sac and Fox Tribe of the Mississippi in Iowa.

      Victoria Meade, West Des Moines, for appellee-mother.

      David Pargulski, Des Moines, for appellee-father.

      Christine Bisignano, West Des Moines, for minor children.
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WIGGINS, Justice.

       We must decide whether the district court properly transferred this

case to the tribal court. Because the State failed to provide a legal basis

for the district court to deny the transfer of this case to the tribal court,

we affirm the district court’s order.

       I. Background Facts and Proceedings.

       The State filed a child in need of assistance (CINA) petition

regarding N.V. and P.V. in September 2005. The father of the children

was an enrolled member of a tribe other than the Sac and Fox Tribe;

however, his mother was a member of the Sac and Fox Tribe, making the

father a descendant. According to the Sac and Fox Tribe, N.V. and P.V.

were not entitled to enrollment.           Even though the children were not

entitled to enrollment, under the Iowa Indian Child Welfare Act (Iowa

ICWA) the Sac and Fox Tribe was entitled to notification of the

proceedings because the Iowa ICWA defines an Indian child as one whom

“the Indian tribe identifies as a child of the tribe’s community.”                Iowa

Code § 232B.3(6) (2005).1

       On November 28 the district court held a CINA hearing.                   At the

hearing the director of Meskwaki Family Services, who oversees the Iowa
ICWA transfers for the Sac and Fox Tribe, acknowledged the tribe

received notice of the CINA proceedings. The director testified N.V. and

P.V. are not eligible for membership or enrollment in the tribe, but are

considered descendants.         Therefore, N.V. and P.V. are children of the

tribal community and hence Indian children under the Iowa ICWA. The

director explained the tribe did not wish to seek jurisdiction over the case



       1In November 2007 we held section 232B.3(6) to be unconstitutional as applied
to children who were not members of a tribe or eligible for membership in a tribe. In re
A.W., 741 N.W.2d 793, 813 (Iowa 2007).
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because it only sought jurisdiction over cases involving children who

were enrolled or eligible for enrollment in the tribe.

      The CINA proceedings continued under Iowa Code section

232.2(6)(n) (parental drug use) and section 232.2(6)(c)(2) (parental failure

to supervise).   The parents did not contest the adjudication of their

children as children in need of assistance or the placement of their

children outside the home with a relative who was licensed as a foster

parent.    At the time of the CINA proceedings, both parents were

incarcerated.

      The mother was released from custody in August 2006. The court

held the termination hearing on March 1, 2007. The mother was present

at the hearing in person and the father appeared by telephone because

he was still incarcerated. At the hearing the mother requested the court

to transfer jurisdiction of the proceedings to the tribal court. The father

joined the request.    The State objected to the transfer.   After granting

additional time to submit briefs on the issue, the district court granted

the request to transfer jurisdiction to the tribal court.

      II. Issues.

      The State raises three issues on appeal: (1) whether the district

court could deny an “eleventh-hour” request to transfer the custody

proceedings to a tribal court; (2) whether the parties or witnesses would

suffer undue hardship by such a transfer; and (3) whether the doctrines

of estoppel, forfeiture, or laches prevent the parents from requesting a

transfer to the tribal court.

      III. Scope of Review.

      Normally, our review of proceedings to terminate parental rights is

de novo.   In re J.E., 723 N.W.2d 793, 798 (Iowa 2006).       However, we

review issues of statutory interpretation for correction of errors at law.
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State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). Because the court did

not hold a termination hearing, and because the court based its decision

to transfer the case on its interpretation of Iowa Code section 232B.5(10),

our review is for correction of errors at law.

      IV. Analysis.

      A. Whether the District Court Could Deny an “Eleventh-Hour”

Request to Transfer Custody Proceedings to a Tribal Court. Sections

232B.5(10) and 232B.5(13) deal with a request to transfer a case from a

district court to a tribal court.   Section 232B.5(10) allows either of a

child’s parents to request such a transfer. Iowa Code § 232B.5(10). This

section provides:

      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, upon the petition of
      any of the following persons:

      a.     Either of the child’s parents.

      b.     The child’s Indian custodian.

      c.     The child’s tribe.

Id.

      Section 232B.5(13) puts limits on the court’s ability to transfer a

case to the tribal court. Section 232B.5(13) provides what circumstances

constitute “good cause” for a court to deny a request to transfer a case to

a tribal court. Id. § 232B.5(13). The section reads as follows:

      If a petition to transfer       proceedings as described in
      subsection 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:

            a.     The tribal court of the child’s tribe declines the
      transfer of jurisdiction.
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            b.     The tribal court does not have subject matter
      jurisdiction under the laws of the tribe or federal law.

             c.   Circumstances exist in which the evidence
      necessary to decide the case cannot be presented in the
      tribal court without undue hardship to the parties or the
      witnesses, and the tribal court is unable to mitigate the
      hardship by making arrangements to receive and consider
      the evidence or testimony by use of remote communication,
      by hearing the evidence or testimony at a location convenient
      to the parties or witnesses, or by use of other means
      permitted in the tribal court’s rules of evidence or discovery.

            d.   An objection to the transfer is entered in
      accordance with subsection 10.

Id.

      The State requests us to construe the transfer statutes to provide

the court with discretion to deny the parents’ demand to transfer

jurisdiction to the tribal court because they did not present good cause

to excuse their untimely transfer request. We only resort to the rules of

statutory construction when a statute is ambiguous. State v. Wiederien,

709 N.W.2d 538, 541 (Iowa 2006). When the statute’s language is plain

and its meaning is clear, we look no further.       State v. Snyder, 634

N.W.2d 613, 615 (Iowa 2001). “If reasonable persons can disagree on a

statute’s meaning, it is ambiguous.” Weiderien, 709 N.W.2d at 541. In

this case, the language is plain, clear, and susceptible to only one

interpretation.

      Section 232B.5(10) mandates that a court shall transfer the

proceeding to a tribal court upon a petition from the persons listed in the

statute.   Iowa Code § 232B.5(10).    While the statute does not directly

speak to the timing of when the transfer can or should be made, the

statute does include the language “upon the petition,” indicating the

transfer should be made directly after an appropriate party requests the

transfer. This language makes it clear that section 232B.5(10) does not
                                      6

contain any limitation on the time in which a request to transfer must be

filed.

         Further evidence that the transfer sections of the Iowa ICWA do

not contain a time limitation for requesting a transfer can be found in

section 232B.5(13). This section lists the circumstances that constitute

good cause to allow a court to deny a request to transfer a case. The

section specifically states “the court shall find good cause to deny the

petition only if one or more of the” circumstances contained in the

statute are shown to exist. Id. (emphasis added). By use of the word

“only,” the legislature made it clear that only those causes listed in

section 232B.5(13) constitute good cause to deny the request for a

transfer to a tribal court.   None of the circumstances enumerated in

section 232B.5(13) even hint at the requirement that a last-minute

request to transfer a case to a tribal court is untimely, or that it

constitutes good cause for the court to deny the request. Consequently,

we hold the plain language of the transfer sections of the Iowa ICWA do

not allow the court to deny a request to transfer a case to the tribal court

based on the timing of the request.

         Moreover, our construction of the transfer statutes is not only

consistent with the plain language of the statutes, it is also consistent

with the legislative history of the Iowa ICWA. Prior to the enactment of

the Iowa ICWA, the federal Indian Child Welfare Act (federal ICWA)

governed cases involving Indian children. The federal ICWA required the

court, “in absence of good cause to the contrary,” to transfer a case from

a state court to a tribal court in cases involving the placement of an

Indian child or the termination of parental rights involving an Indian

child. 25 U.S.C. § 1911(b). The federal ICWA did not include a definition

of good cause or enumerate the circumstances constituting good cause.
                                     7

Id. However, the Bureau of Indian Affairs issued nonbinding guidelines

listing circumstances when good cause may exist to deny the transfer of

a case to a tribal court.     Guidelines for State Courts; Indian Child

Custody Proceedings, 44 Fed. Reg. 67,591 (Nov. 26, 1979).            These

guidelines provide good cause may exist to deny a transfer if “[t]he

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.”   Id.   These guidelines also state good

cause may exist to deny a transfer if “[t]he evidence necessary to decide

the case could not be adequately presented in the tribal court without

undue hardship to the parties or the witnesses.” Id.

      Prior to the enactment of the Iowa ICWA in 2003, our appellate

courts adjudicated cases involving Indian children by applying the

federal ICWA and the Bureau of Indian Affairs’ guidelines. On at least

two occasions, our court of appeals denied a tribe’s transfer request for

good cause when the proceedings were at an advanced stage, and the

tribe did not promptly file the request to transfer. See In re J.W., 528

N.W.2d 657, 660–61 (Iowa Ct. App. 1995); see also In re K.T., No. 02-

0952, 2002 WL 1758435, at *3 (Iowa Ct. App. 2002).            On another

occasion this court denied a request to transfer a case to a tribal court

because the “ ‘evidence necessary to decide the case could not be

adequately presented in the tribal court without undue hardship [to] the

parties or the witnesses.’ ” In re J.R.H., 358 N.W.2d 311, 317 (Iowa 1984)

(citing 44 Fed. Reg. at 67,591).

      When the legislature adopted section 232B.5(13)(c), it made a

choice to adopt the undue hardship provision of the Bureau of Indian

Affairs’ guidelines, but not the provision dealing with the timeliness of a

transfer request. This choice by the legislature confirms it did not intend
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to place a time limit on a parent’s request to transfer a case to a tribal

court.

         Finally, the State argues the district court should have denied the

transfer request because it was not in the best interest of the children.

This argument fails for two reasons. First, the transfer statutes do not

allow a best-interest-of-the-child exception to deny a transfer request

made in accordance with the Iowa ICWA. Second, the Iowa ICWA does

not use the traditional definition of “the best interest of the child” as

used in custody cases involving non-Indian children.                Iowa Code

§ 232B.3(2). The Iowa ICWA defines best interest of the child as:

         [T]he use of practices in accordance with the federal Indian
         Child Welfare Act, this chapter, and other applicable law,
         that are designed to prevent the Indian child’s voluntary or
         involuntary out-of-home placement, and whenever such
         placement is necessary or ordered, placing the child, to the
         greatest extent possible, in a foster home, adoptive
         placement, or other type of custodial placement that reflects
         the unique values of the child’s tribal culture and is best
         able to assist the child in establishing, developing, and
         maintaining a political, cultural, and social relationship with
         the Indian child’s tribe and tribal community.

Id.

         Under this definition, it is in a child’s best interest to place him or

her in a home that will preserve the unique values of the child’s tribal

culture and assist the child in establishing relationships with the tribe

and tribal community.         Id.   Even if we were to find the traditional

definition of the best interest of the children would override the

circumstances enumerated in the transfer statutes, under the Iowa ICWA

definition we find it is in the best interest of N.V. and P.V. to transfer

their case to the tribal court so it can preserve the unique values of their

tribal culture and assist the children in establishing relationships with

their tribal community.
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      Therefore, the district court was correct when it transferred this

case to the tribal court even though the parents’ request came at the

beginning of the termination hearing.

      B.    Whether the Parties or Witnesses Would Suffer Undue

Hardship by a Transfer to the Tribal Court.            Iowa Code section

232B.5(13)(c) contains a hardship provision that allows a court to find

good cause to deny a transfer. It provides:

      Circumstances exist in which the evidence necessary to
      decide the case cannot be presented in the tribal court
      without undue hardship to the parties or the witnesses, and
      the tribal court is unable to mitigate the hardship by making
      arrangements to receive and consider the evidence or
      testimony by use of remote communication, by hearing the
      evidence or testimony at a location convenient to the parties
      or witnesses, or by use of other means permitted in the tribal
      court’s rules of evidence or discovery.

Iowa Code § 232B.5(13)(c). The burden of proving good cause is on the

party opposing the transfer, which in this case is the State. See In re

J.W., 528 N.W.2d at 660.

      The district court found neither the parties nor the witnesses

would suffer undue hardship if the case were transferred to the tribal

court. In its ruling, the district court stated:

      The evidence does not support a finding that . . .
      circumstances exist in which the evidence necessary to
      decide the case cannot be presented in the tribal court
      without undue hardship to the parties or witnesses. Prior
      court files, transcripts, and exhibits can be made available to
      the tribal court and the children, now twelve and fourteen,
      are bright young people who can make their positions and
      concerns known to their representatives in any forum.

We have no reason to disagree with this finding. Accordingly, the district

court was correct when it refused to deny the transfer of this case to the

tribal court under section 232B.5(13)(c).
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      C.      Whether the Doctrines of Estoppel, Forfeiture, or Laches

Prevent the Parents From Requesting a Transfer to the Tribal Court.

On appeal the State raises the doctrines of forfeiture and laches for the

first time.    Ordinarily, issues not presented to the trial court are not

reviewable when raised for the first time on appeal. State v. Farni, 325

N.W.2d 107, 109 (Iowa 1982). Therefore, we will not address the State’s

arguments concerning the doctrines of forfeiture and laches.

      In its ruling, the district court found the State’s argument on

estoppel compelling, but never ruled on the merits of the doctrine.

Instead the court found the unambiguous requirements of the transfer

statutes required the court to transfer this case to the tribal court. We

agree with the district court.

      The doctrine of estoppel cannot be used to trump the clear

statutory right under the Iowa ICWA that allows a party to transfer a

case to a tribal court without a time limit. To hold otherwise would not

only insert a time limit for a person to request a transfer that is not

contained in the transfer statutes, but would also be inconsistent with

the purpose of the act.

      The tribe’s interest in the future of an Indian child is not only

significant, it is also an interest the legislature sought to vigorously

protect.   The legislature provided that if an objection is made to the

transfer, the court “shall reject any objection that is inconsistent with the

purposes of [the Iowa ICWA].” Iowa Code § 232B.5(11). The purpose of

the Iowa ICWA is to ensure Indian children can be placed in homes that

reflect the unique values of the child’s tribal culture and assist the child

in establishing relationships with the child’s tribe and tribal community.

Id. § 232B.2. The transfer statute specifically provides:
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      [T]he court shall reject any objection that is inconsistent
      with the purposes of this chapter, including but not limited
      to any objection that would prevent maintaining the vital
      relationship between Indian tribes and the tribes’ children
      and would interfere with the policy that the best interest of
      an Indian child require that the child be placed in a foster or
      adoptive home that reflects the unique values of Indian
      culture.

Id. § 232B.5(11).    Accordingly, we conclude when the statutory right

under the Iowa ICWA exists for a person to transfer a case to a tribal

court without a time limit, estoppel cannot be used to deprive a person of

that right.

      V. Disposition.

      Because the State failed to provide a legal basis for the district

court to deny the transfer of this case to the tribal court, we affirm the

district court’s transfer order.

      AFFIRMED.

      All justices concur, except Larson, J., who takes no part.
