                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-1095
                               Filed September 12, 2018


IN THE INTEREST OF G.Y.,
Minor Child,

D.Y., Father,
       Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Lynn Poschner, District

Associate Judge.



       A father contests the termination of his parental rights to his one-year-old

son. CONDITIONALLY AFFIRMED AND REMANDED.



       Agnes G. Warutere of Warutere Law Office, Clive, for appellant father.

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

General, for appellee State.

       Nicole Garbis Nolan of Youth Law Center, Des Moines, guardian ad litem

for minor child.



       Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                             2


TABOR, Judge.

       A father, Devantea, appeals the juvenile court order terminating his parental

rights to one-year-old G.Y. Devantea first alleges the juvenile court failed to ask

about the child’s Native American heritage. He next contends the State failed to

make reasonable efforts to reunite him with G.Y. and did not investigate his adult

relatives as placement options. Devantea also challenges the statutory grounds

cited by the juvenile court for terminating his parental rights. After fully assessing

the record, we affirm the juvenile court’s order.1 But because the appellate record

raises questions concerning the father’s possible membership in the Cherokee

Indian tribe, we remand to ensure compliance with the notice requirements of the

Iowa Indian Child Welfare Act (Iowa ICWA).

       I.      Facts and Prior Proceedings

       G.Y. was born in December 2016. His parents are Devantea and Jennifer.2

During her pregnancy with G.Y., Devantea assaulted Jennifer, breaking her jaw. 3

The Iowa Department of Human Services (DHS) started providing services to

Jennifer following an October 2016 founded child-abuse report involving



1
  We review de novo termination-of-parental-rights proceedings. In re A.M., 843 N.W.2d
100, 110 (Iowa 2014). We will uphold a termination order if it is supported by clear and
convincing evidence of at least one statutory ground under section 232.116(1) (2018).
See In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). “Clear and convincing” proof means
we see no “serious or substantial doubt as to the correctness of the conclusions of law
drawn from the evidence.” Id. To the extent that this case involves interpretation of Iowa
Code chapter 232B, our review is for correction of errors at law. See In re J.C., 857 N.W.2d
495, 500 (Iowa 2014).
2
  The juvenile court terminated Jennifer’s parental rights to G.Y. and his three stepsiblings
in the same order, but she is not a party to this appeal. The order also terminated the
parental rights of the father of the three older children; we address his separate appeal in
another decision filed today, In re K.N., No. 18-1135 (Iowa Ct. App. Sept. 12, 2018).
3
  Devantea pleaded guilty to assault causing bodily injury and the court imposed a criminal
no-contact order (NCO).
                                             3


inadequate supervision of her three older children. The juvenile court issued a

removal order for all four children in March 2017, finding Jennifer was not providing

proper supervision and Devantea was not an appropriate placement for G.Y.

because he had a “history of violence including domestic assault and has an

extensive drug related history and he has a[n] NCO in place with the mother as the

protected party.”

       The juvenile court adjudicated G.Y. as a child in need of assistance (CINA)

in April 2017.4 Devantea contested the adjudication and asked the DHS to place

G.Y. with Devantea’s uncle. Devantea later asserted the DHS did not tell him why

the paternal uncle was not considered a suitable custodian.                 In May 2017,

Devantea tested positive for THC, the active ingredient in marijuana.

       In the intervening year, Devantea had sparse contact with his son. He saw

G.Y. in May 2017 and then not again until November 2017. Devantea attended

visits on November 10 and 17, but refused to schedule or confirm any additional

sessions.5    Devantea did not engage in therapy to address his aggressive

behaviors or participate in other services recommended by the DHS. He also

continued to use controlled substances and failed to resolve an out-of-state

warrant for his arrest.

       After holding permanency hearings in March 2018, the juvenile court

decided G.Y. should remain in out-of-home placement.                    The court found


4
  The juvenile court ordered paternity testing for Devantea on March 23, 2017. In May
2017, the court noted Devantea missed the scheduled paternity test and it had been
rescheduled. In the termination order, the court noted Devantea acknowledged his
paternity on the witness stand, but explained “it is not clear on this record whether testing
occurred.”
5
  For instance, Devantea declined a visit on December 8, 2017, because G.Y. had
conjunctivitis and Devantea didn’t want to be exposed.
                                             4


Devantae—who did not attend the hearings—could not assume custody of G.Y.

because he had “absented himself from his son’s life” and had not taken part in

any services. At the May 2018 termination hearing, Devantae testified he had not

seen G.Y. since November 2017 because he felt “discouraged” his son was not

placed with a family member. He also admitted sending Jennifer a threatening

message stating: “My son don’t come home in March, I promise to God I will smack

your ass in the courtroom.”

        The juvenile court terminated Devantea’s parental rights under three

statutory provisions: paragraphs (b), (e), and (h) of Iowa Code section 232.116(1).

He now appeals.

        II.    Analysis

        A. Tribal Notice under ICWA

        Devantea asserts neither the juvenile court nor the DHS asked about his

Native American heritage. He filed an affidavit with his petition on appeal stating

under penalty of perjury: “I do have Native American Heritage, as both of my

maternal grandparents are Native American, in particular Cherokee Indian.” He

contends the juvenile court erred in terminating his rights without showing the State

sent proper notice to the tribe as required by Iowa Code chapter 232B, the Iowa

ICWA.

        The State responds that tribal notification was not required because the

record does not support Devantea’s claim G.Y. may be an Indian child.6 The State


6
  Federal law defines an “Indian child” as an “unmarried person who is under age eighteen
and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4)
(2016). The Iowa ICWA includes a broader definition, stating an “Indian child” is “an
                                              5


points to an ICWA affidavit filed by a DHS worker on March 6, 2017, asserting no

Native American history was known or provided for G.Y. The State, citing In re

R.E.K.F., further contends we cannot rely on Devantea’s affidavit because it was

not part of the juvenile court record. See 698 N.W.2d 147, 149 (Iowa 2005)

(striking exhibits attached to further review brief because they were not part of the

record before the juvenile court).

       The Iowa ICWA’s tribal notice provisions require the juvenile court to notify

the proper Indian tribe “whenever” it has reason to know an Indian child may be

involved in an involuntary termination. Id. (citing Iowa Code § 232B.5(4)). The

question of whether a child is an Indian child is for the tribe to answer. Id.

       It is not clear Devantea was asked about his Native American heritage

during the CINA case—the DHS worker’s ICWA affidavit was filed before the

juvenile court ordered paternity testing for Devantea. Now Devantea’s affidavit

places the court on alert G.Y. might be an Indian child, triggering the tribal notice

requirements. Our court held a father’s “vague statement about Native American

heritage” where he previously denied having any Native American connections and

could not name any specific relatives with tribal affiliations did not give a juvenile

court reason to believe the child at issue was an Indian child. See In re Z.H., 740

N.W.2d 648, 653–54 (Iowa Ct. App. 2007). Here, Devantea avowed both his




unmarried Indian person who is under eighteen years of age or a child who is under
eighteen years of age that an Indian tribe identifies as a child of the tribe’s community.”
Iowa Code § 232B.3(6) (emphasis added); see also In re A.W., 741 N.W.2d 793, 798–99
(Iowa 2007). In A.W., our supreme court held Iowa ICWA's expansion of the definition of
“Indian child” to include ethnic Indians not eligible for membership in a federally recognized
tribe was unconstitutional as applied. Id. at 812.
                                          6


maternal grandparents were Cherokee Indians.          This more specific assertion

provides reason to believe G.Y. is an Indian child. See Iowa Code § 232B.5(4).

       In this context, the normal prohibition against considering matters outside

the juvenile court record—enforced in R.E.K.F.—is not controlling. ICWA requires

notice be sent to the appropriate tribes even though the possibility of G.Y.’s tribal

membership did not come to light until the appeal. See In re Kahlen W., 285 Cal.

Rptr. 507, 513 (Dist. Ct. App. 1991) (“Notice is mandatory, regardless of how late

in the proceedings a child’s possible Indian heritage is uncovered.”); In re B.J., No.

242892, 2003 WL 21350355, at *2 (Mich. Ct. App. June 10, 2003) (remanding for

notice to tribes when mother first raised possibility of her daughter being an Indian

child on appeal), overruled on other grounds by In re Morris, 815 N.W.2d 62 (Mich.

2012); see also In re Isaiah W., 373 P.3d 444, 451 (Cal. 2016) (allowing ICWA

notice error to be raised for the first time in a direct appeal from an order

terminating parental rights); People ex rel J.O., 170 P.3d 840, 842 (Colo. Ct. App.

2007) (“[T]he notice requirements of the ICWA serve the interests of the Indian

tribes and, therefore, cannot be waived by a parent and may be raised for the first

time on appeal.” (citing In re Justin S., 150 Cal. Rptr. 3d 376, 383 (Dist. Ct. App.

2007)); In re K.B., 301 P.3d 836, 840 (Mont. 2013) (“[F]ailure to comply with ICWA

notice requirements may be raised for the first time on appeal.”).

       In a similar situation, our court rejected the State’s claim of waiver where it

did not appear from the record that notice was properly sent to the tribes, despite

the child’s status being raised before the juvenile court. In re L.B.-A.D., No. 11-

0456, 2011 WL 2112452, at *6 (Iowa Ct. App. May 25, 2011) (“[W]e find the

mother’s failure to preserve error on the issue does not waive the issue on appeal,
                                           7


although it is unfortunate the mother waited until this appeal to first raise the notice

issue.”).7 We likewise reject the State’s waiver argument in this case.

       We do agree with the State that reversal of the termination is not warranted.

The proper procedure is to affirm the juvenile court’s order on the condition that

proper notification be provided. See R.E.K.F., 698 N.W.2d at 150–51.

       B. Reasonable Efforts

       Devantea next argues the DHS did not make reasonable efforts to reunify

him with G.Y. as required by Iowa Code section 232.102(6)(b). Specifically, he

complains the DHS did not notify his adult relatives of the CINA proceedings as

required by section 232.84 and failed to place G.Y. with family members.

       The State maintains the father did not preserve error on this claim. We

agree. Devantea did not secure a ruling from the juvenile court on the general

reasonable-effort issue nor on his more specific complaint concerning notice to

adult relatives. See In re K.N., No.11-1102, 2011 WL 4382995, at *4 (Iowa Ct.

App. Sept. 21, 2011) (citing In re A.M.H., 516 N.W.2d 867, 872 (Iowa 1994) (finding

mother waived appellate claim by not raising issue through motion to enlarge or

amend)). Without a ruling from the juvenile court, we have nothing to review.

       C. Statutory Grounds

       In his final assignments of error, Devantea claims the juvenile court erred in

terminating his parental rights under paragraphs (b), (e), and (h) of Iowa Code

section 232.116(1). When the juvenile court terminates rights on more than one


7
 In L.B.-A.D., we distinguished In re J.D.B., 584 N.W.2d 577, 582 (Iowa Ct. App. 1998),
where our court determined a parent who “failed to come forward with evidence” the
children qualified as Indian children could not complain on appeal the juvenile court did
not apply ICWA in the CINA proceedings. L.B.-A.D., 2011 WL 2112452, at *6.
                                         8


statutory ground, we may affirm the order on any ground supported by the record.

D.W., 791 N.W.2d at 707. We find the State proved paragraph (h) by clear and

convincing evidence. The elements are four-fold:

               (1) The child is three years of age or younger.
               (2) The child has been adjudicated [CINA under] section
       232.96.
               (3) The child has been removed from the physical custody of
       the child’s parents for at least six months of the last twelve months,
       or for the last six consecutive months and any trial period at home
       has been less than thirty days.
               (4) There is clear and convincing evidence that the child
       cannot be returned to the custody of the child’s parents as provided
       in section 232.102 at the present time.

Iowa Code § 232.116(1)(h).

       Devantea challenges only the fourth element—the prospect for safely

returning the child to the parent’s custody. He points to his own testimony at the

termination hearing that he was ready to care for G.Y., could financially meet the

child’s needs, would address his pending out-of-state charges, and was remorseful

for his violence toward Jennifer.    The juvenile court was rightly skeptical of

Devantea’s ability to assume care of G.Y. The father did not take part in services

to address his substance abuse or history of violence. And as the State notes on

appeal: “G.Y. is a toddler and Devantea is a virtual stranger to him because of

Devantea’s decision not to regularly participate in visitation throughout the CINA

case.” Termination was proper under paragraph (h).

       We conditionally affirm the termination order, but remand for the purpose of

providing proper notice to any interested Indian tribe under the federal and state

ICWAs. If after proper notice, the tribe fails to respond within the appropriate

timeframe or replies and determines the child is not eligible for tribal membership,
                                        9


the termination order will stand. If the tribe responds and intervenes, reversal of

the termination order and further proceedings consistent with the ICWA

requirements will be necessary. We do not retain jurisdiction.

      CONDITIONALLY AFFIRMED AND REMANDED.
