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ICWA and the Fundamental Right to Parent


Erik L. Smith


In re N.N.E., 2008 Iowa Sup. LEXIS 85 (Iowa Sup. Ct. June 2008)



The Mother, a member of a federally recognized Indian tribe, surrendered her infant for adoption, choosing to place the Child with non-Indians in Iowa. The Mother signed a release, letting an attorney petition to terminate the Mother's parental rights," which the attorney did. The Mother's release stated:


"...I request that my child not be placed with my extended family, but with the family that I have selected who is non-Native American. I understand that the Tyme Maidu Tribe may or may not grant my request."


The federal Indian Child Welfare Act (ICWA) stated:


"In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.125 U.S.C. 1915(a)."


Under the Iowa ICWA, the court could not consider the parent's preference for a non-Indian placement unless clear and convincing evidence showed that applying the ICWA preferences would harm the Indian child.2Iowa Code 232B.9(6).


The Iowa Supreme Court found the Iowa ICWA law unconstitutional. The court reasoned that the Mother's intention to terminate her parental rights did not lessen her fundamental right to make decisions about the care of her child. Moreover, the Iowa ICWA gave the Mother an absolute right to withdraw her consent to TPR before TPR was decreed, upon which the child could be returned to her. The court reasoned that the State could not influence the Mother's decision about whether to keep, abort, or surrender, her child by preventing her from choosing a family she felt was best suited to raise her child. Also, the federal ICWA instructed courts to apply whatever law provided a higher standard of protection to the rights of the parent or Indian custodian. Thus, while providing additional rights to the tribe was the State's prerogative, those rights could not come at the expense of the parent's or child's rights. Finding ICWA violations, the Supreme Court remanded to determine whether good cause existed for deviating from the ICWA placement preferences.

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Copyright © Erik L. Smith.