author: STREIT, Justice.

text:
    In the Interest of N.N.E., Minor Child, Tyme Maidu Tribe of the Berry Creek Rancheria, Appellant.
    No. 07-0123.
    Supreme Court of Iowa.
    June 13, 2008.
    Rehearing Denied July 16, 2008.

      Rosalynd J. Koob of Heidman, Redmond, Fredregill, Patterson, Plaza, Dyks-tra & Prahl, L.L.P., Sioux City, and Elizabeth A. Rosenbaum, Sioux City, for appellant.
    Martha A. McMinn, Sioux City, for ap-pellee-Maxine Buckmeier.
    Suzan E. Boden of Vriezelaar, Tigges, Edgington, Bottaro, Boden & Ross, L.L.P., Sioux City, for appellee-mother.
    David L. Gill, Sioux City, for appellee-GAL.
   STREIT, Justice.

Shannon, an Iowa resident, is a member of a federally recognized Indian tribe located in California. She became pregnant and decided to give the child up for adoption. She chose a non-Indian family from Arizona to adopt her child. Because her child is eligible for membership in the tribe, the federal and Iowa Indian Child Welfare Acts (ICWA) apply to the child custody proceedings. On appeal, the tribe contests the preadoptive placement of the child with the prospective adoptive family rather than an Indian family in accordance with Iowa ICWA placement preferences. Because we find the Iowa ICWA placement preferences unconstitutional, the federal ICWA placement preferences, which include a “good cause” exception for a parent’s request, govern. We remand for the court to determine whether good cause exists to deviate from the federal ICWA placement preferences.

I. Facts and Prior Proceedings.

Shannon lived in Sioux City, Iowa. In late 2005, she became pregnant. She was approximately twenty years old, unmarried, and the mother of two other children. Shannon decided she was unable to care for an additional child and chose to give the child up for adoption. Shannon was referred to Maxine Buckmeier, an adoption attorney in Sioux City. With Buck-meier’s help, Shannon chose Jena and Paul, an Arizona couple, to adopt the child. Buckmeier assumed the role of Jena and Paul’s attorney.

Shannon is an enrolled member of the Tyme Maidu Tribe of the Berry Creek Ranchería, which is located in California. Terilynn Steele, the tribe’s ICWA program director, informed Buckmeier Shannon’s unborn child would be eligible for tribe enrollment.

Shannon gave birth to Nairobi on June 6, 2006. She named two men as possible fathers. On June 9, Shannon signed a release which gave custody of Nairobi to Buckmeier. The stated purpose was “to permit [Buckmeier] to file a petition in juvenile court for the termination of [Shannon’s] parental rights.... ” Buckmeier gave Nairobi to Jena and Paul who have cared for the child since June 9. Buckmeier filed the petition to terminate Shannon’s parental rights on June 16. The same day, the juvenile court appointed Buckmeier to serve as Nairobi’s custodian.

Jena and Paul told Steele the child was in their care, and a court hearing was scheduled for June 19. Shannon was scheduled to appear in the district court to give her consent to the release of custody and termination of her parental rights for purposes of furthering the adoption. Steele stated such a hearing could not take place because Buckmeier had not formally notified the tribe of the hearing.

On June 19, Shannon appeared before the district court and presented the court with her “Consent to Termination of Parental Rights Pursuant to the Indian Child Welfare Act,” which the court certified. It included the following statement:

I have the right under the Indian Child Welfare Acts to require that the placement preferences of these Acts be followed. 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 following day,, Buckmeier sent to the tribe by certified mail, a notice explaining the tribe’s rights in the proceedings and the date of the next scheduled hearing (July 27). Included with the notice was a copy of the petition which noted Nairobi had been “in the possession and control of the prospective adoptive parents” since June 9.

On July 25, the tribe filed a motion to intervene and request for continuance. Shannon, Suzan Boden (Shannon’s attorney), Buckmeier, and the child’s guardian ad litem all appeared before the court on July 27. The court granted the tribe’s motion to intervene and continued the hearing until August 30 in order for the tribe to investigate the proposed adoptive placement of the child. See 25 U.S.C. § 1911(c) (2006) (granting an Indian child’s tribe the right to intervene); Iowa Code § 232B.5(14) (2005) (same).

On the day before the August 30 hearing, the tribe faxed to the court and the parties a copy of an August 11 tribal resolution which stated among other things (1) Nairobi was eligible for membership in the tribe, (2) its belief ICWA had been violated because “a custody proceeding occurred without notice to the Tribe,” (3) its intent to exercise its right to preferred placement if Shannon relinquishes her parental rights, and (4) its appointment of Steele as the tribe’s representative. The court continued the hearing until November 1 in order for the parties to explore their legal options in light of the tribe’s resolution.

On November 1, a hearing was held before the juvenile court. Buckmeier and Boden (Shannon’s attorney) objected to Steele appearing telephonically. Buckmeier noted the tribe had plenty of time to retain counsel and appear on the date of the hearing. The guardian ad litem took the position Steele should not be allowed to present evidence because she was not a lawyer. Steele requested a continuance in order to appear by person. She stated it was the tribe’s position Nairobi should not have been removed from the state of Iowa without prior notice to the tribe because such placement constituted foster care or a preadoptive placement.

After noting the only issue before it was termination of Shannon’s parental rights and not the adoptive placement, the juvenile court denied Steele’s motion to continue, allowed her to stay on the telephone but prohibited her from presenting any evidence. Shannon testified she was consenting to the termination' of her rights.

On November 20, prior to the juvenile court’s ruling, the tribe issued a subpoena seeking the Interstate Compact on Placement of Children (ICPC) records for Nairobi. Buckmeier moved to quash the subpoena and a hearing was set for December 12. On November 22, the tribe filed a motion to vacate the June 16 custody order, terminate the, ICPC removal, and return the child to Iowa or place the child with a tribe-approved family.

The juvenile court entered'an order on December 26 terminating the parental rights of Shannon and the putative fathers. It found the court’s September 1 order notified the tribe that participation in the November 1 hearing “was to be done by appearing in person and with legal counsel” and that the tribe had not made a timely request to appear by telephone. The court further ordered Buckmeier to continue to serve as Nairobi’s- guardian and custodian.

On January 17, 2007, the tribe filed a notice of appeal from the termination order. On the same date, the tribe filed a motion requesting the juvenile court to rule on Buckmeier’s motion to quash. It also refiled its motion to vacate the custody order.

The next day, the juvenile court issued an order finding Buckmeier met the requirements of Iowa Code chapter 600A and all state and federal ICWA requirements. The court also found the tribe’s motion to vacate and its subpoena seeking ICPC records were moot due to the December 26 order terminating the mother’s parental rights.

On January 19, the tribe amended its notice of appeal to challenge the termination order and the appointment of Buck-meier as guardian and custodian.

On appeal, the tribe argues (1) the juvenile court erred when it found the parental rights termination proceedings were conducted in compliance with the state and federal ICWA; (2) the juvenile court erred when it held the tribe had to be represented by legal counsel; (3) the juvenile court erred when it overruled the tribe’s motion to participate telephonically; (4) the juvenile court erred when it permitted Gerald Denney to testify at the termination hearing when he was not timely disclosed as a witness and was not qualified as an ICWA expert; and (5) the juvenile court erred when it held the tribe’s motion to vacate and Buckmeier’s motion to quash the tribe’s subpoena were mooted by the court’s order terminating Shannon’s parental rights. The tribe requests we reverse all of the orders of the juvenile court except the order permitting it to intervene.

The appellees — Buckmeier, Shannon, and David Gill (the child’s guardian ad litem) — contend the juvenile court fully complied with both the federal and Iowa ICWA. In the alternative, they contend the Iowa ICWA is unconstitutional to the extent it allows a tribe to interfere with a private adoption.

II. Scope of Review.

The standard of review in juvenile proceedings is de novo. In re J.D.F., 553 N.W.2d 585, 587 (Iowa 1996). We review statutory interpretations for correction of errors of law. In re R.E.K.F., 698 N.W.2d 147, 149 (Iowa 2005). Evidentiary rulings and rulings on motions are generally reviewed for abuse of discretion. In re E.H. III, 578 N.W.2d 243, 245 (Iowa 1998). Constitutional challenges to a statute are reviewed de novo. Wright v. Iowa Dep’t of Corr., 747 N.W.2d 213, 216 (Iowa 2008).

III. Merits.

Congress passed the Indian Child Welfare Act in 1978. See 25 U.S.C. §§ 1901-1963. The legislation

was the product of rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 1600, 104 L.Ed.2d 29, 36 (1989); see also 25 U.S.C. § 1901 (providing congressional findings including “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and ... placed in non-Indian foster and adoptive homes and institutions”). ICWA established “minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which ... reflect the unique values of Indian culture.... ” 25 U.S.C. § 1902.

Congress envisioned a patchwork of laws to protect Indian children and their families. The federal ICWA provides:

In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard.

Id. § 1921.

Iowa passed its own ICWA in 2003. See Iowa Code §§ 232B.1-232B.14. The stated purpose was “to clarify state policies and procedures regarding implementation of the federal Indian Child Welfare Act.” Id. § 232B.2. The Iowa ICWA also extends additional rights to tribes.

The present case tests the applicability of both the federal and Iowa ICWA to the voluntary termination of parental rights of an Indian child. The tribe alleges “blatant violations” of both Acts require this case be remanded to the juvenile court for proceedings in compliance with ICWA.

ICWA applies to child custody proceedings involving an Indian child. Id. § 232B.4(1). An “Indian child” is 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); see In re A.W., 741 N.W.2d 793, 810 (Iowa 2007) (holding Iowa ICWA’s definition of “Indian child” found in Iowa Code § 232B.3(6) was unconstitutional because it included ethnic Indians who were not eligible for tribal membership and thus constituted a racial classification which was not narrowly tailored to further a compelling government interest). A “child custody proceeding” is “a voluntary or involuntary proceeding that may result in an Indian child’s adoptive placement, foster care placement, preadoptive placement, or termination of parental rights.” Iowa Code § 232B.3(3); see 25 U.S.C. § 1903(1) (defining “child custody proceeding” in a similar manner). The parties agree Nairobi is an “Indian child.” However, they disagree on when the first “child custody proceeding” took place.

A. ICWA Placement Preferences. The crux of the tribe’s appeal is that it should have been given notice before custody of Nairobi was transferred to Buck-meier in order for the tribe to assert its right to preferred placement under the Iowa ICWA. Thus, we begin by analyzing the provisions for placement preferences under federal and Iowa ICWA.

The federal ICWA statute provides:

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.

25 U.S.C. § 1915(a). The statute provides similar placement preferences for foster care or preadoptive placements, which can likewise be circumvented for “good cause.” Id. § 1915(b). “Good cause” is not defined in the statute but the Bureau of Indian Affairs issued nonbinding guidelines to assist state courts in applying the federal ICWA. In determining whether good cause exists to deviate from the placement preferences, the guidelines state:

(a) For purposes of foster care, pre-adoptive or adoptive placement, a determination of good cause not to follow the order of preference ... shall be based on one or more of the following considerations:
(i) The request of the biological parents or the child when the child is of sufficient age.
(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.
(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.
(b) The burden of establishing the existence of good cause not to follow the order of preferences ... shall be on the party urging that the preferences not be followed.

Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,583, 67,594 (Nov. 26, 1979). Previously, we have said:

“[G]ood cause” for deviating from the § 1915(b) preferences depends on a fact determinative analysis consisting of “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., 572 N.W.2d 579, 585 (Iowa 1997) (quoting In re Adoption of F.H., 851 P.2d 1361, 1363-64 (Alaska 1993)). Courts in other jurisdictions have found good cause to deviate from the placement preferences where the parent in a voluntary termination case expressed a desire to place her child with a non-Indian family. See In re Adoption of Keith M.W., 79 P.3d 623, 630-31 (Alaska 2003); In re Adoption of T.R.M., 525 N.E.2d 298, 313 (Ind.1988); In re Adoption of B.G.J., 281 Kan. 552, 133 P.3d 1, 10 (2006).

However, a parent’s request is not sufficient to deviate from the preferred placements under the Iowa ICWA. Iowa Code section 232B.9(1) states:

In any adoptive or other permanent placement of an Indian child, preference shall be given to a placement with one of the following, in descending priority order:
a. A member of the Indian child’s family-
b. Other members of the Indian child’s tribe.
c. Another Indian family.
,d. A non-Indian family approved by the Indian child’s tribe,
e. A non-Indian family that is committed to enabling the child to have extended family visitation and participation in the cultural and ceremonial events of the child’s tribe.

The Iowa statute provides similar preferences for emergency removal, foster care, and preadoptive placement. Iowa Code § 232B.9(2). The tribe also has the discretion to establish a different order of placement preferences. Id. § 232B.9(5). The statute further states:

Unless there is clear and convincing evidence that placement within the order of preference ... would be harmful to the Indian child, consideration of the preference of the Indian child or parent or a parent’s request for anonymity shall not be a basis for placing an Indian child outside of the applicable order of preference.

Id. § 232B.9(6).

We find such a high burden to deviate from the placement preferences in a voluntary termination violates substantive due process. Parents’ interest in their children’s care, custody, and control is “ ‘perhaps the oldest of the fundamental liberty interests recognized by [the Supreme Court].’ ” Santi v. Sanbi, 633 N.W.2d 312, 317 (Iowa 2001) (quoting Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000)). This court has recognized a fundamental right to parent under the Iowa Constitution. Id. at 316 (referring to article I, sections 1 and 9 of the Iowa Constitution). “[T]o withstand challenge under our state constitution, the infringement on parental liberty interests implicated by the statute must be ‘narrowly tailored to serve a compelling state interest.’ ” Id. at 318 (quoting State v. Klawonn, 609 N.W.2d 515, 519 (Iowa 2000)).

The Supreme Court explained why the federal ICWA was enacted: “Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians.” Holyfield, 490 U.S. at 49, 109 S.Ct. at 1608-09, 104 L.Ed.2d at 47. Assuming survival of the tribe is a compelling state interest, the Iowa ICWA preferred placement provisions as they apply to voluntary termination of parental rights violate due process because they are not narrowly tailored. The statute makes the rights of a tribe paramount to the rights of an Indian parent or child even where, as in this case, the parent who is the tribal member has no connection to the reservation and has not been deemed unfit to parent. See In re Baby Girl A., 230 Cal.App.3d 1611, 282 Cal.Rptr. 105, 111 (1991) (holding tribe’s interest in voluntary adoption of child living off the reservation is not as great as parent’s interest). Shannon’s fundamental right to make decisions concerning the care of her child is not lessened because she intended to terminate her rights to Nairobi. In fact, under Iowa ICWA, Shannon had an absolute right to withdraw her consent to terminate her parental rights at any time before the entry of a final decree of termination and the child would have been returned to her. Iowa Code § 232B.7(3). Shannon was faced with an unintended pregnancy. A woman in her position has three choices: to keep the child, put the child up for adoption, or terminate the pregnancy. Such a decision is undoubtedly gut wrenching and will forever impact her as well as the unborn child. The State has no right to influence her decision by preventing her from choosing a family she feels is best suited to raise her child. Moreover, we do not believe the federal ICWA condones state law curtailing a parent’s rights in this manner. Federal ICWA instructs courts to apply whatever law “provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child.” 25 U.S.C. § 1921. It says nothing about laws providing a higher standard of protection to the tribe. While providing additional rights to the tribe is the prerogative of the State, those rights may not come at the expense of the parent’s or child’s rights.

Because we find the Iowa ICWA placement preferences violate our state constitution when applied to a voluntary termination of parental rights, the federal ICWA placement preferences apply. In order to deviate from the federal placement preferences, the juvenile court was required to make specific findings supporting good cause. See In re A.E., 572 N.W.2d at 585. Because the juvenile court did not make such findings, we remand in order for the appellees to have the opportunity to establish the existence of good cause not to follow the placement preferences in the preadoptive placement of Nairobi. See Iowa Code § 232B.3(13) (defining “preadoptive placement” to mean the “temporary placement of an Indian child ... after the termination of parental rights, but prior to or in lieu of an adoptive placement”).

The tribe requests we reverse all orders of the juvenile court except the order allowing the tribe to intervene. In other words, the tribe wishes to have the opportunity to also contest the foster care placement of Nairobi — i.e., the placement of Nairobi prior to the termination of Shannon’s parental rights. Iowa Code section 232B.14(2)(A) states “[a] court of competent jurisdiction shall vacate a court order and remand the case for appropriate disposition for ... [a]ny other violation that is not harmless error, including but not limited to a failure to comply with 25 U.S.C. ... § 1915....”

We find such a remedy unnecessary in light of the fact Shannon has never wavered in her decision to terminate her parental rights since her first court appearance. It would serve no purpose to require the juvenile court to terminate her parental rights all over again. Although we state below the tribe was entitled to notice before the foster care placement was made, we cannot undo what has already been done. See In re A.M.H., 516 N.W.2d 867, 871 (Iowa 1994) (“Any error committed in granting the temporary ex parte order cannot now be remedied. We cannot go back in time and restore custody based on alleged errors in the initial removal order.”). Nairobi deserves a permanent home as soon as possible. Thus, once the juvenile court determines pre-adoptive placement, Nairobi’s adoption may follow. We now turn to the other issues raised by the tribe.

B. Notice.

The tribe also complains it did not receive proper notice of the first “child custody proceeding.” Iowa ICWA provides:

In a voluntary child custody proceeding involving an Indian child, ... the court shall establish in the record that the party seeking the foster care placement of, termination of parental rights to, or the permanent placement of, an Indian child has sent notice at least ten days prior to the hearing by registered mail, return receipt requested, to all of the following:
c. Any tribe in which the child may be a member or eligible for membership.

Id. § 232B.5(8). But see 25 U.S.C. § 1912(a) (requiring notice to tribe only in an involuntary proceeding). “ ‘Child custody proceeding’ means a voluntary or involuntary proceeding that may result in an Indian child’s adoptive placement, foster care placement, preadoptive placement, or termination of parental rights.” Iowa Code § 232B.3(3). The notice shall include, among other things, “[a] copy of the petition by which the proceeding was initiated” and inform the tribe of its “right to intervene in the proceeding.” Id. § 232B.5(9).

The tribe contends the first “child custody proceeding” for which it was entitled to notice occurred on June 9 when Shannon signed the “release of custody” transferring custody of Nairobi to Buck-meier. However, the act of signing a “release of custody” does not constitute a “child custody proceeding.” The release was obviously the first step toward terminating Shannon’s parental rights to the child. See Id. § 600A.4(2)(?) (stating release of custody shall be followed by the filing of a petition for termination of parental rights). Nevertheless, there was no proceeding at this point. By referencing a “petition” and the “right to intervene in the proceeding,” the legislature clearly intended to trigger the tribe’s right to notice upon the filing of a petition to terminate Shannon’s parental rights rather than when she signed the “release of custody.” See also Black’s Law Dictionary 1241 (8th ed.2004) (defining a proceeding as a “hearing” before “a court or other official body” or “[a]ny procedural means for seeking redress from a tribunal or agency”). Thus, the tribe was not entitled to notice before Shannon signed the “release of custody.”

The tribe also contends a “child custody proceeding” occurred on June 16 which entitled it to notice. On June 16, Buck-meier filed her petition to terminate Shannon’s parental rights and obtained an order appointing Buckmeier as Nairobi’s custodian. Shannon appeared before the juvenile court on June 19 and voluntarily consented to the termination of her parental rights as well as the release of custody of Nairobi to Buckmeier. The tribe contends the June 16 order resulted in a “foster care placement” which required Buckmeier to send the tribe notice at least ten days beforehand. See Iowa Code § 232B.5(8) (requiring the party seeking foster care placement of Indian child to send notice at least ten days prior to the hearing).

“Foster care placement” means the temporary placement of an Indian child in an individual or agency foster care placement or in the personal custody of a guardian or conservator prior to the termination of parental rights, from which the child cannot be returned upon demand to the custody of the parent or Indian custodian but there has not been a termination of parental rights.

Id. § 232B.3(4).

Shannon argues the June 16 order did not result in a “foster care placement” because Nairobi could have been returned to her upon demand. She notes Iowa Code section 232B.7(3) states:

In a voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.

(Emphasis added.) Although this provision allows a parent to reclaim an Indian child for any reason up to the voluntary termination of parental rights, we do not interpret it to mean a child shall be returned upon demand. A parent choosing to withdraw his or her consent would have to petition the court and formally withdraw the consent before the child would be returned to the parent. See Guidelines, 44 Fed.Reg. at 67,594 (stating withdrawing consent requires filing an instrument executed under oath by parent stipulating intention to withdraw consent). We agree with the tribe the June 16 order resulted in a foster care placement which required Buckmeier to send the tribe notice ten days beforehand.

Buckmeier did not mail the tribe notice until June 20. The tribe claims the lack of formal notice ten days before the court appointed Buckmeier as custodian deprived the tribe of the opportunity to meaningfully participate in the proceedings and “advise the court that there were ICWA preferred placements available within the Tribe.” The tribe claims all orders filed before it received notice should be vacated. See id. § 232B.14(2)(a) (stating “[a] court of competent jurisdiction shall vacate a court order and remand the case for appropriate disposition for ... failure to notify an Indian parent, Indian custodian, or Tribe”). As we have already stated, such action is not necessary. On remand, the tribe will be given the opportunity to be heard regarding Nairobi’s preadoptive placement.

C. Pro se representation. The tribe complains the juvenile court erred by preventing Steele to act as a non-lawyer representative of the tribe at the November 1 hearing. The federal and state ICWA are silent on whether the tribe may appear in court through a non-lawyer representative. As a general rule, Iowa requires businesses to appear only by lawyer, while a natural person may appear for himself. Hawkeye Bank & Trust v. Baugh, 463 N.W.2d 22, 25 (Iowa 1990). Whether a tribe may represent itself in court is an issue of first impression. For the reasons that follow, we believe a tribe should be permitted to represent itself in ICWA proceedings. We need not determine whether such a right should extend to other types of cases.

The court of appeals of Oregon addressed this issue in State ex rel. Juvenile Department of Lane County v. Shuey, 119 Or.App. 185, 850 P.2d 378 (1993). There, the court found Oregon’s statute requiring groups and associations be represented by a lawyer was incompatible with the tribe’s right to intervene in ICWA cases. Shuey, 850 P.2d at 381. It stated “[tjribal participation in state custody proceedings involving tribal children is essential to effecting the purposes of the ICWA.” Id. Because “[t]he state’s interest in adequate representation and compliance with procedure and protocol in general cannot compare with a tribe’s interests in its children and its own future existence,” the court found the tribe may represent itself in ICWA proceedings. Id. We agree.

Moreover, tribes are inherently different than business organizations. Fraass Survival Sys. Inc. v. Absentee Shawnee Econ. Dev. Auth., 817 F.Supp. 7, 10 (S.D.N.Y.1993). “[A]n Indian tribe’s status is a distinctive combination of sovereignty and dependency — it is at once an independent nation and a ward of the state.” Id. The “tribe’s status as a partially sovereign nation merits respect based on an expectation of responsible interaction with other sovereigns.” Id. We must also be sensitive to the economic hardship that would occur if we were to require tribes to hire lawyers in ICWA matters. Id. at 11. Many tribes lack the resources for legal representation. Therefore, we hold a non-lawyer tribal member may represent the tribe in ICWA proceedings as long as the representative can demonstrate he or she is authorized to speak on behalf of the tribe.

Steele presented the juvenile court with a tribal resolution authorizing her to represent the tribe in the custody proceedings involving Nairobi. Thus, on remand Steele shall be allowed to fully participate in further proceedings.

D. Telephonic participation. The tribe contends the juvenile court erred by refusing to allow the tribe to participate by telephone in the November 1 hearing. We find the juvenile court did not abuse its discretion in overruling the tribe’s motion to participate telephonically. An abuse of discretion is only found when a court exercises “its discretion on grounds or for reasons that are clearly untenable or to an extent that is clearly unreasonable.” Baker v. City of Iowa City, 750 N.W.2d 93, 97 (Iowa 2008). The juvenile court’s decision to deny the tribe’s motion because the tribe failed to make a timely request to appear by telephone was well within its discretion. Nevertheless, we encourage juvenile courts to allow tribes to participate by telephone, particularly where the tribe is located out-of-state.

E. Expert witness testimony. The tribe complains the juvenile court erred by allowing Denney to testify at the parental rights termination hearing when he was not timely disclosed as a witness and was not qualified as an ICWA expert. Denney testified he was employed by the Santee Sioux Nation as an ICWA specialist. He testified briefly to a conversation he had with Shannon. They discussed Shannon’s knowledge of ICWA and her reasons for terminating her parental rights to Nairobi. Denney testified it was his opinion Shannon’s decision was both informed and voluntary.

The Iowa ICWA requires expert witness testimony in some circumstances:

In considering whether to involuntarily place an Indian child in foster care or to terminate the parental rights of the parent of an Indian child, the court shall require that qualified expert witnesses with specific knowledge of the child’s Indian tribe testify regarding that tribe’s family organization and child-rearing practices, and regarding whether the tribe’s culture, customs, and laws would support the placement of the child in foster care or the termination of parental rights on the grounds that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

Iowa Code § 232B.10(2) (emphasis added). Similarly,

[a]n adoptive placement of an Indian child shall not be ordered in the absence of a determination, supported by clear and convincing evidence including the testimony of qualified expert witnesses, that the placement of the child is in the best interest of the child.

Id. § 232B.9(4). A “ ‘qualified expert witness’ may include, but is not limited to, a social worker, sociologist, physician, psychologist, traditional tribal therapist and healer, spiritual leader, historian, or elder.” Id. § 232B.10(1).

Denney’s testimony was not necessary in the present case because Shannon’s parental rights were not being involuntarily terminated and Nairobi’s adoptive placement was not before the court. See id. § 232B.3 (1) (defining an “adoptive placement” as the “permanent placement of an Indian child for adoption”). Moreover; Denney’s testimony simply reiterated Shannon’s testimony. Thus, any error in allowing Denney to testify was harmless.

IV. Conclusion.

The Iowa ICWA placement preferences are unconstitutional in voluntary termination cases. We remand so that the juvenile court may determine whether “good cause” exists to deviate from the federal ICWA placement preferences. A tribe may appear in court through a non-lawyer representative in ICWA proceedings. The juvenile court did not abuse its discretion in denying the tribe’s untimely request to appear by telephone. Denney’s testimony at the November 1 hearing to terminate Shannon’s parental rights was unnecessary but harmless. Because we remand for further findings, the tribe’s motion requesting the juvenile court to rule on Buckmeier’s motion to quash is not moot.

REVERSED AND REMANDED.

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

      . Shannon testified she does not have contact with anyone who lives on the reservation. She stated if she raised Nairobi, she would not expose the child to the tribe’s culture or customs. It is not clear whether Shannon has ever lived on the reservation in California.

      . Shannon certainly does not have an unfettered discretion to choose the adoptive family. The placement must be in the child’s best interest. See Iowa Code § 600.8, 600.13(l)(d).

      . We disavow In re J.W., 498 N.W.2d 417, 419-20 (Iowa Ct.App.1993), to the extent it held failure to give adequate notice to a tribe divests the court of jurisdiction to terminate parental rights.

      . Contrary to the tribe's assertion, we find Shannon's initial consent to terminate her parental rights was valid. Her written consent, executed more than ten days after Nairobi’s birth, was filed along with a written verification by the juvenile court which certified Shannon’s decision was voluntary and fully informed. See 25 U.S.C. § 1913(a); Iowa Code § 232B.7(1).


source: Caselaw Access Project

author: HECHT, Justice.

license: Public Domain

text:
    Garvis G. HOUCK, Appellant, v. IOWA BOARD OF PHARMACY EXAMINERS, Appellee.
    No. 06-1747.
    Supreme Court of Iowa.
    June 27, 2008.

      Michael M. Sellers of Sellers Law Office, West Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Scott M. Galenbeck, Assistant Attorney General, for appellee.
   HECHT, Justice.

A pharmacist compounded and sold a product to a customer without a prescription. The customer- filed a complaint with the administrative agency that regulates the conduct of pharmacists, and a sanction was imposed against the pharmacist. . In this appeal from the district court’s ruling affirming the agency’s action, we must decide whether the agency has authority to designate the compounded product as a drug that may be dispensed by a pharmacist only if it has been prescribed by a practitioner. We conclude the agency acted within its broad authority, and therefore affirm the district court’s ruling.

I. Factual and Procedural Background.

Garvis Houck is a licensed Iowa pharmacist and the owner-operator of Houck Drug, a licensed Iowa pharmacy in Clear Lake. In 2002 Shirley Meyer consulted Houck about nasal irritation. After offering to supply a product to ease Meyer’s symptoms, Houck compounded a nasal spray containing a mixture of: 2-deoxy-d-glucose (an antiviral); dyclonine (an anesthetic); miconazole (an antifungal); me-thylcellulose (a suspending agent); sodium chloride; and distilled water. Each of these substances was, by itself, a nonprescription drug. Houck sold the compounded product to Meyer in a bottle that was not labeled with a prescription number, a prescriber’s name, or a pharmacist’s initial on the label. Meyer used the nose drops once, experienced increased nasal irritation, and filed a complaint with the Iowa Board of Pharmacy Examiners (“board”).

The board assigned an investigator, Jacky'Devine, to investigate Meyer’s complaint. Houck admitted he compounded the nasal spray for Meyer without a prescription based on his experience in compounding some of the same substances for prescribers in the area. While conducting the investigation 'of the Meyer complaint, Devine found several violations of pharmacy regulations that had been noted in a prior inspection. Houck was unable to produce for Devine forms required to record transactions involving narcotics, a required log for permanent and nonperman-ent pharmacist employees, compounding production records bearing the initials of the compounding pharmacist, and a logbook containing the initials of pharmacists who provided customers certain cough syrups containing codeine. Houck had been warned about all of these record-keeping deficits in 2000.

The board filed two charges against Houck based on the investigation of the Meyer transaction and the 2002 inspection: (1)- intentional or repeated violation of the board’s rules regarding operation of a pharmacy and maintenance of controlled substance records; and (2) unlawful manufacturing and dispensing of a compounded drug without a prescriber’s authorization. Following a hearing, the board issued a written decision finding Houck committed the alleged violations and placed Houck and Houck Drug on probation for three years with several conditions. The board specifically ordered Houck to refrain from compounding of any kind without authorization from a prescriber.

Houck sought judicial review in the district court. He contended the regulations prohibiting pharmacists from compounding, without a prescription, substances separately available without a prescription are unconstitutional. Houck also asserted the board lacked authority to issue the regulations, and the board’s disciplinary action was not supported by substantial evidence. The district court denied Houck’s petition.

II. Scope of Review.

On judicial review of final agency action, we review for errors at law. Hough v. Iowa Dep’t of Pers., 666 N.W.2d 168, 170 (Iowa 2003). In determining the appropriate scope of review of an agency’s interpretation of a statute, the crucial question for the reviewing court is whether the interpretation of the statute has clearly been vested by a provision of law in the agency’s discretion. See Iowa Code § 17A.19(10)(c), (l). If the agency has been clearly vested with interpretive authority, we generally defer to the agency’s interpretation, and may grant relief only if the agency’s interpretation is “irrational, illogical, or wholly unjustifiable.” Id. § 17A.19(10)(i). If the agency has not been clearly vested with discretion to interpret the statute, “we are free to substitute our judgment de novo for the agency’s interpretation and determine if the interpretation is erroneous.” Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 589-90 (Iowa 2004) (citing Iowa Code § 17A.19(10)(e)).

The legislature has delegated broad authority to the Board of Pharmacy Examiners for the regulation of the practice of pharmacy in Iowa. Iowa Code section 147.76 (2007) confers upon the board the authority to “adopt all necessary and proper rules to implement and interpret [chapter 155A].” See also Iowa Code § 155A.3(3) (stating the term “board” in chapter 155A refers to the board of pharmacy examiners). We have previously held similar language in other statutes constituted a clear vesting in the agency of the authority to interpret a statute. Thoms v. Iowa Pub. Employees’ Ret. Sys., 715 N.W.2d 7, 11 (Iowa 2006) (finding a clear vesting of interpretive authority where a statute directed the agency to “adopt ... rules ... and take other action it deems necessary for the administration of the retirement system”); Auen, 679 N.W.2d at 590 (holding grant of authority to an agency to adopt rules “necessary to carry out this chapter” clearly vested in the agency authority to interpret a statute); City of Marion v. Iowa Dep’t of Revenue & Fin., 643 N.W.2d 205, 207 (Iowa 2002) (holding statute providing “[t]he director shall have the power and authority to prescribe all rules not inconsistent with the provisions of this chapter, necessary and advisable for its detailed administration and to effectuate its purposes,” vested authority in the department of revenue and finance to interpret section 422.45(20)). Section 147.76 clearly'vests the board of pharmacy examiners with authority to interpret chapter 155A. We will therefore overturn the board’s interpretation of that chapter only if it is “irrational, illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(Z).

We review an agency’s factual findings for substantial evidence based on the record viewed as a whole. Id. § 17A.19 (10)(/). Substantial evidence is

the quantity and quality of evidence that would be deemed sufficient by a neutral, detached, and reasonable person, to establish the fact at issue when the consequences resulting from the establishment of that fact are understood to be serious and of great importance.

Id. § 17A.19(10)(/)(1).

We review constitutional claims de novo. Wright v. Iowa Dep’t of Corr., 747 N.W.2d 213, 216 (Iowa 2008).

III. Discussion.

A. Board’s Authority to Regulate Compounding of Nonprescription Drugs.

1. Board’s authority to define “prescription drugs.” The primary controversy in this case centers on the board’s interpretation of Iowa Code section 155A.3(35). This statute defines a “prescription drug” as any of the following:

a. A substance for which federal or state law requires a prescription before it may be legally dispensed to the public.
b. A drug or device that under federal law is required, prior to being dispensed or delivered, to be labeled with one of the following statements:
(1) Caution: Federal law prohibits dispensing without a prescription.
(2) Caution: Federal law restricts this drug to use by or on the order of a licensed veterinarian.
(3) Caution: Federal law restricts this device to sale by, or on the order of, a physician.
(4) Rx only.
c. A drug or device that is required by any applicable federal or state law or regulation to be dispensed on prescription only, or is restricted to use by a practitioner only.

Iowa Code § 155A.3(35) (emphasis added). The board has interpreted subsection (c) as a positive grant of authority by the legislature to the board to enact regulations requiring that certain drugs be dispensed on prescription only. Relying on such authority, the board enacted rule 20.2, a rule which, in relevant part, prohibits a pharmacist from dispensing compounds consisting of exclusively nonprescription components without a prescription from a practitioner. Iowa Admin. Code r. 657-20.2. Rule 20.2 thus brings a compound made from exclusively nonprescription components within the definition of a “prescription drug” in section 155A.3(35)(c). Houck contends section 155A.3(35)(c) does not vest the board with the authority to designate as a “prescription drug” a compounded substance consisting of a combination of nonprescription substances.

After carefully reviewing chapter 155A in light of the board’s authority to implement and interpret that chapter, we cannot say the board’s interpretation of section 155A.3(35)(c) as a positive grant of authority to the board to designate all compounded substances as “prescription drugs” is irrational, illogical, or wholly unjustifiable. The plain language of section 155A.3(35)(c) clearly evidences legislative intent to identify, at least in part through state administrative rule, those substances which may be dispensed by pharmacists only if prescribed by a practitioner. As we have already noted, the board has been vested with broad authority to adopt rules to “implement and interpret” chapter 155A. Iowa Code § 147.76. The board is the agency charged with administering Iowa Code chapter 124 (“Controlled Substances”) and Iowa Code chapter 126 (“Iowa Drug, Device, and Cosmetic Act”). Id. §§ 124.101(3), .201, .301; 126.2(3), .17. The board asserts, and Houck does not dispute, that no other state administrative agency is assigned regulatory power over controlled substances or prescription drugs. We conclude the board’s interpretation of section 155A.3(35)(c) as a statutory authorization to identify prescription drugs by administrative rule is not irrational, illogical, or wholly unjustifiable. It is an interpretation that gives reasonable and logical meaning to the words “or regulation” in the statute. See T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 162 (Iowa 1999) (noting interpretations that render a portion of a statute redundant or irrelevant should be avoided).

Houck contends the general assembly enumerated in chapter 124 the list of drugs which may be regulated as “prescription drugs” under chapter 155A. According to Houck, the board’s only authority to influence what is a “prescription drug” is its role in recommending to the general assembly the appropriate classification for controlled substances in chapter 124. Iowa Code § 124.201. Chapters 124 and 155A, however, do not narrowly limit the board’s authority to regulate prescription drugs in the manner suggested by Houck.

As averred by Houck, chapter 124 lists five categories, or schedules, of “controlled substances.” See generally id. §§ 124.203-.212. As the term is used in chapter 124, a “controlled substance” is “a drug, substance, or immediate precursor in schedules I through V of division II of this chapter.” Id. § 124.101(5). The schedules categorize various substances according to their relative potential for abuse, the degree to which the substance has an accepted medical use, and likelihood that abuse of the substance would lead to psychic or physical dependence. Id. § 124.201. Contrary to Houck’s assertion, however, chapter 124 does not define “prescription drug”; nor does it purport to present an exhaustive list of substances which may be only dispensed by a pharmacist pursuant to a practitioner’s prescription. We find no limitation in chapter 124 on the board’s authority to define “prescription drugs.”

Our rejection of Houck’s contention that chapter 124 limits the board’s authority to define “prescription drugs” is strengthened by the careful distinctions drawn by the general assembly in chapter 155A between “controlled substances” and “prescription drugs.” A “prescription drug” may be either a “drug” or “device.” Id. § 155A.3(35)(e). A “drug” is any of the following:

a. A substance recognized as a drug in the current official United States Pharmacopoeia and National For-mulary, official Homeopathic Pharmacopoeia, or other drug compendium or any supplement to any of them.
b. A substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in humans or other animals.
c. A substance, other than food, intended to affect the structure or any function of the body of humans or other animals.
d. A substance intended for use as a component of any substance specified in paragraph “a ”, “b ”, or “c ”.
e. A controlled substance.

Id. § 155A.3(13) (emphasis added). As in chapter 124, the term “controlled substance” in chapter 155A refers to the substances or precursors to the substances listed in the chapter 124 schedules. Id. § 155A.3(6). Thus, in chapter 155A the terms “drug” and “prescription drug” are not limited to the substances in the controlled substance schedules. Although the legislature has granted the board only the limited authority to recommend to the general assembly substances to be designated as “controlled substances,” id. § 124.201, no such limitation appears in section 155A.3(35)(c) in connection with the board’s authority to define “prescription drugs.”

2. Validity of the board’s compounding rule. Having found the board could rationally conclude it had the authority to require a drug to be dispensed by prescription only, we must determine whether the board’s compounding rule is irrational, illogical, or wholly unjustifiable. Houck contends the relevant portion of the rule is irrational because it forbids pharmacists, who have special training regarding interactions between drugs, from combining and distributing compounds consisting exclusively of substances available without a prescription while allowing nonpharmacists to do so. We disagree. The board’s inclusion of all compounded substances within the definition of “prescription drug” is sufficiently related to the goals of chapter 155A to survive our scrutiny under the applicable deferential standard of judicial review.

Rule 20.2 is properly within the bounds of the board’s authority under section 155A.3(35). As noted above, that statute requires a “prescription drug” be a “drug or device.” Id. § 155A.3(35)(c). A “drug” includes “[a] substance, other than food, intended to affect the structure or any function of the body of humans.” Id. § 155A.3(13)(c). The product compounded by Houck for Meyer easily fits within this definition of “drug.” Rule 20.2 promulgated by the board expressly confines the definition of compounding to “preparing, mixing, assembling, packaging, and labeling a drug or device for an identified individual patient....” Iowa Admin. Code r. 657-20.2 (emphasis added). Because the rule applies only to compounded “drugs” and “devices,” it is firmly within the board’s authority to require that drugs or devices be dispensed on prescription only.

A rational and logical connection exists between the rule and the board’s duties under chapter 155A. The purpose of chapter 155A is “to promote, preserve, and protect the public health, safety, and welfare through the effective regulation of the practice of pharmacy....” Iowa Code § 155A.2. The board asserts it enacted rule 20.2 in order to draw a bright line between the practice of medicine and the practice of pharmacy. Generally speaking, the practice of medicine involves the intake of patients, diagnosis of illnesses, and prescription of treatment, while the practice of pharmacy primarily consists of preparing and dispensing medications. By requiring the “prescriber/patient/pharma-cist” relationship as a prerequisite to the dispensing of compounded drugs by pharmacists, the board has exercised administrative discretion to prohibit pharmacists from diagnosing illnesses and prescribing treatment for their customers — functions traditionally undertaken by doctors. The board could rationally and logically have concluded this exercise of discretion clearly separating the pharmacist function from that of the prescriber advances the health, safety, and welfare of pharmacists’ customers.

Our confidence in the conclusion the board’s rule is neither illogical nor unreasonable is not diminished by the fact that it does not preclude nonpharmacists from compounding nonprescription substances. Nonpharmacists are not licensed to dispense drugs, and do not hold themselves out as experts in compounding substances sold to treat health problems suffered by human beings. As a consequence, there is no significant market for the compounding services of nonpharmacists. Pharmacists, on the other hand, are licensed and widely regarded by their customers as experts who reliably dispense drugs manufactured by others or compounded by them. The board could logically and rationally conclude the substantial market for the compounding services of pharmacists justifies regulation, and the nonexistent demand for compounding services by nonpharmacists does not. Furthermore, chapter 155A grants the board no authority to regulate the activities of nonpharmacists.

Houck correctly posits that pharmacists are not prohibited by statute or agency rule from recommending nonprescription medications to customers who describe their symptoms and seek advice. He relies on this fact to support his contention that the board does not truly draw the line between pharmacy and medicine at “diagnosing” and “prescribing.” Even if we acknowledge the apparent plausibility of Houck’s contention, however, we conclude it does not undermine the board’s authority to prohibit compounding of drugs without a prescription or render rule 20.2 irrational. The board could rationally conclude, as it did, that compounding of substances — including “drugs” not enumerated as controlled substances under chapter 124 and consisting entirely of “over-the-counter” components- — -by pharmacists without a prescription for the treatment of maladies or symptoms presented by customers poses risks to the public health, safety, and welfare. Accordingly, rule 20.2 is not rendered invalid as a consequence of the board’s failure to require a prescription for the dispensing by pharmacists of “over-the-counter” drugs manufactured by others.

3. Constiüdional challenge. Houck also contends the board’s regulation violates the equal protection clauses of the federal and Iowa Constitutions because it unfairly discriminates against pharmacists with respect to compounding of nonprescription substances. See U.S. Const, amend. XIV; Iowa Const, art. I, § 6. Houck is a licensed pharmacist, and is therefore not similarly situated to a non-pharmacist. The legislature may therefore treat him differently than a non-pharmacist. See In re Det. of Hennings, 744 N.W.2d 333, 339 (Iowa 2008) (noting dissimilar treatment of persons not similarly situated does not offend equal protection). Because he has failed to demonstrate dissimilar treatment of similarly situated individuals, Houck’s equal protection challenge to the board’s rule is without merit.

B. Noncompounding Violations. Houck also broadly asserts the factual findings underlying the board’s decision to sanction him for the other, noncompound-ing violations were not supported by substantial evidence. While asserting the board made its findings of fact “based solely on its compliance officer’s report regarding arguable and meaningless minor violations” of administrative rules, and that the violations were the result of a “hyper-technical application” of administrative rules, Houck does not actually assail the substantiality of the evidence supporting the facts found by the board. Upon a careful review of the record, we find ample support for the board’s finding that Houck engaged in a “pattern of choosing which rules to follow and which rules to ignore.” The board’s findings are supported by substantial evidence.

C. Sanction. We have previously noted the limited scope of judicial review of sanctions imposed by administrative agencies. When a “licensing board is made up of members of the profession they are licensing, the court should not second guess the board’s decision” as to the appropriate sanction. Burns v. Bd. of Nursing of Iowa, 528 N.W.2d 602, 605 (Iowa 1995). The pharmacy board is primarily constituted of pharmacists, see Iowa Code § 174.14(5), and we see no basis in the record to depart from this sound rule. We accordingly uphold the board’s findings that Houck’s serial violations of administrative rules warranted the imposition of a three-year probation.

IV. Conclusion.

We find the board could have rationally concluded the general assembly delegated to it the authority to designate drugs compounded by pharmacists as “prescription drugs” to be dispensed only if prescribed by a practitioner. The rule adopted by the board consistent with that authority is not irrational, illogical, or wholly unjustifiable. The board’s adoption of that rule and enforcement of it against Houck did not deprive him of equal protection of the law. The board’s factual findings are supported by substantial evidence in the record.

AFFIRMED.

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

      . The Iowa Administrative Code defines "compounding” as "preparing, mixing, assembling, packaging, and labeling a drug or device for an identified patient....” Iowa Admin. Code r. 657-20.2.

      . Devine had investigated for the board a similar complaint against Houck in October of 2000. That complaint also arose as a consequence of Houck’s compounding of "over-the-counter” substances without a prescription. Devine found Houck's records to be out of compliance in several particulars with the board’s regulations at that time, and warned Houck against compounding and selling substances without a prescription.

      . Houck later provided Devine with most, but not all, of the missing forms.

      . The events giving rise to this case occurred in 2002. Accordingly, the statutes controlling our disposition were codified in the 2001 Iowa Code. Those statutes were renumbered and relocated in the code without substantive change after 2001. The parties have uniformly cited those statutes as they appear in the 2007 Code, and we will do so as well.

      . The Iowa Code defines a "practitioner” as a physician, dentist, podiatric physician, veterinarian, or other person licensed or registered to distribute or dispense a prescription drug or device in the course of professional practice in this state or a person licensed by another state in a health field in which, under Iowa law, licensees in this state may legally prescribe drugs.
      Iowa Code § 155A.3(33).

      . A "device" is "an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article, including any component part or accessory, that is required under federal or state law to be ordered or prescribed by a practitioner.” Iowa Code § 155A.3(10). This case does not involve a "device,” and we therefore consider only the portion of the statute pertaining to “drugs.”


author: SACKETT, C.J.

text:
    Stanley TAYLOR, Applicant-Appellant, v. STATE of Iowa, Respondent-Appellee.
    No. 07-0626.
    Court of Appeals of Iowa.
    Feb. 13, 2008.

      Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Stanley Taylor, Anamosa, pro se.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, John P. Sarcone, Polk County Attorney, and Nan Horvat, Assistant County Attorney, for appellee.
    Considered by SACKETT, C.J., and VOGEL and VAITHESWARAN, JJ.
   SACKETT, C.J.

Postconviction relief applicant, Stanley Taylor, appeals the district court’s dismissal of his petition. Taylor contends the department of corrections has retroactively applied changes in parole review procedures contained in Iowa Code section 906.5 (1995). He argues the retroactive application of these changes to his case violates the ex post facto clauses of the United States and Iowa constitutions. The district court dismissed his petition, finding Taylor failed to prove that the rule change created a significant risk of an increased term of incarceration. We affirm.

I. BACKGROUND.

Taylor was charged on March 24, 1994 with committing sexual abuse in the second degree, a class B felony, in violation of Iowa Code section 709.3 (1993), and engaging in lascivious acts with a child in violation of section 709.8. Taylor was convicted of these offenses on December 5, 1995. He was sentenced to serve twenty-five years in prison for the sexual abuse conviction and five years for the lascivious acts with a child conviction. The sentences were ordered to run consecutively. Taylor has been serving out his sentence since December 21,1995.

When Taylor committed the offenses in 1994, the Iowa Code required the parole board to conduct annual personal interviews with many classes of prisoners as part of the parole review process. The code in effect at the time of Taylor’s offenses provided in part:

[Wjithin one year after the commitment of a person other than a class “A” felon, class “B” felon convicted of murder in the second degree and serving a sentence of more than twenty-five years, or a felon serving a mandatory minimum sentence, other than a class “A” felon, to the custody of the director of the Iowa department of corrections, a member of the board shall interview the person. Thereafter, at regular intervals, not to exceed one year, the board shall interview the person and consider the person’s prospects for parole or work release.

Iowa Code § 906.5(1) (1993). Under this statute, all inmates were entitled to annual personal interviews except for class A felons, class B felons convicted of second-degree murder, and other felons serving a mandatory minimum sentence. In 1995 this section was amended to require case file reviews instead of personal interviews and to further exempt some felons from the annual parole review process. The amended statute states,

The board at least annually shall review the status of a person other than a class “A” felon, a class “B” felon serving a sentence of more than twenty-five years, or a felon serving a mandatory minimum sentence other than a class “A” felon, and provide the person with notice of the board’s parole or work release decision.

Iowa Code § 906.5(1) (1995). The amended version requires the board to annually review an inmate’s status rather than conduct individual interviews with inmates each year. It also enlarges the class of inmates exempt from the review process by excluding any class B felon serving a sentence over twenty-five years rather than excluding only those convicted of second-degree murder.

Taylor was not given a case file review or a personal interview during the first two years of his incarceration. Starting in 1998, the parole board has provided annual status reviews of Taylor by considering his case file but has never interviewed him.

Taylor filed a pro se application for post-conviction relief on November 18, 2005, and in February 2006 he was appointed counsel. Taylor and his attorney argued that Taylor is entitled to annual personal interviews with the parole board as the code provided at the time the offenses were committed. Taylor urged that retroactive application of the code change that only requires a case file review enhances the punishment for the crimes he committed and therefore violates the ex post facto clauses of the United States and Iowa constitutions.

The parties waived trial, stipulated to the facts, and submitted the issue to the court. The court denied the application on the ground that Taylor failed to meet his burden of proving that there was a significant risk of Taylor being incarcerated longer due to the elimination of the annual personal interview in the parole review process. Taylor appeals.

II. STANDARD OF REVIEW.

Postconviction relief proceedings are reviewed for correction of errors at law. De Voss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, Taylor’s claim that the application of the changed parole review procedures to his case violates ex post facto principles is constitutional in nature. Our review of these claims is de novo. State v. Corwin, 616 N.W.2d 600, 601 (Iowa 2000). Under this review, “we must make an ‘independent evaluation of the totality of the circumstances as shown by the entire record.’ ” State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997) (quoting State v. Cook, 530 N.W.2d 728, 731 (Iowa 1995)).

III. RETROACTIVE APPLICATION OF AMENDED SECTION 906.5.

The United States and Iowa constitutions prohibit the enactment of ex post facto laws. U.S. Const, art. I, § 10, cl. 1 (“No State shall ... pass any ... ex post facto Law.”); Iowa Const, art. I, § 21 (“No ... ex post facto law ... shall ever be passed.”). The ex post facto clauses “ ‘forbid the application of a new punitive measure to conduct already committed.’ ” State v. Seering, 701 N.W.2d 655, 666 (Iowa 2005) (quoting Schreiber v. State, 666 N.W.2d 127, 129 (Iowa 2003)). A violation may occur “ ‘when a statute makes more burdensome the punishment for a crime after its commission.’ ” Id. (quoting Schreiber, 666 N.W.2d at 129). Administration of the parole review process can implicate the prohibitions against ex post facto laws. Doe v. State, 688 N.W.2d 265, 269 (Iowa 2004) (citing Rodriguez v. United States Parole Comm’n, 594 F.2d 170, 178 (7th Cir.1979)). The ex post facto principles are less strictly applied in parole eligibility cases however because the parole board must be able to exercise broad discretion in its parole decisions and adjust its procedures according to insights about the risk of recidivism. Id. at 269-70 (citing Garner v. Jones, 529 U.S. 244, 253-55, 120 S.Ct. 1362, 1369-70, 146 L.Ed.2d 236, 246-47 (2000)).

The ex post facto clause does not require that an inmate’s “sentence be carried out under the identical legal regime that previously prevailed” when the offense was committed. California Dep’t of Corr. v. Morales, 514 U.S. 499, 510 n. 6, 115 S.Ct. 1597, 1603, n. 6, 131 L.Ed.2d 588, 597, n. 6 (1995). The question is whether retroactive application of an amended law “produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at 509, 115 S.Ct. at 1603, 131 L.Ed.2d at 597. If the amendment does not show a significant risk of increased incarceration by its terms, “the [inmate] must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion that its retroactive application will result in a longer period of incarceration than under the earlier rule.” Garner, 529 U.S. at 255, 120 S.Ct. at 1371, 146 L.Ed.2d at 247. “[T]he question of what legislative adjustments ‘will be held to be of sufficient moment to transgress the constitutional prohibition’ must be a matter of ‘degree.’ ” Morales, 514 U.S. at 509, 115 S.Ct. at 1603, 131 L.Ed.2d at 597 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216, 218 (1925)). The party challenging the statute need not prove that his actual term of imprisonment would have been less under previous law, but he must show that “the measure of punishment itself has changed” by application of the amended law. Id. at 510 n. 6, 115 S.Ct. at 1603, n. 6, 131 L.Ed.2d at 597, n. 6.

A sufficient risk of increased punishment cannot be proved by conjecture or by attacking insignificant procedural changes in the parole system. An amendment does not violate the ex post facto clause if it “creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes.” Id. at 509-510, 115 S.Ct. at 1603, 131 L.Ed.2d at 597. Also, “not every retroactive procedural change creating a risk of affecting an inmate’s terms or conditions of confinement is prohibited.” Garner, 529 U.S. at 250, 120 S.Ct. at 1367, 146 L.Ed.2d at 244. In Morales, the United States Supreme Court found the retroactive application of a statute that empowered the parole board to reduce the frequency of parole hearings did not violate the ex post facto clause. Morales, 514 U.S. at 514, 115 S.Ct. at 1605, 131 L.Ed.2d at 599; see also Garner, 529 U.S. at 255-56, 120 S.Ct. at 1370-71, 146 L.Ed.2d at 247-48 (analyzing a similar statute). The court rejected the ex post facto challenge because the amendment only created a speculative possibility, rather than a sufficient risk, of longer incarceration and the board retained discretion to increase the frequency of parole hearings based on the specific circumstances of inmates. Morales, 514 U.S. at 509-512, 115 S.Ct. at 1603-04, 131 L.Ed.2d at 597-98.

By contrast, changes in the parole system that deprive an inmate of all opportunity for early release or that retroactively modify the formula for an inmate to earn a reduced sentence have been held to violate the ex post facto prohibition. See Weaver v. Graham, 450 U.S. 24, 33, 101 S.Ct. 960, 966-67, 67 L.Ed.2d 17, 26 (1981); Lindsey v. Washington, 301 U.S. 397, 400-01, 57 S.Ct. 797, 798-99, 81 L.Ed. 1182, 1185-86 (1937). For example, in Lindsey, at the time of the offenses, the maximum term for imprisonment for the crime was fifteen years but the statute was amended prior to the defendant’s sentencing to make fifteen years of imprisonment mandatory. Lindsey, 301 U.S. at 398-99, 57 S.Ct. at 797-98, 81 L.Ed. at 1185. The court deemed the retroactive abolition of the court’s discretion to provide a lesser term of incarceration violated the ex post facto clause. Id. at 400-02, 57 S.Ct. at 798-99, 81 L.Ed. at 1185-86. In Weaver, a state retroactively modified a system that allowed inmates to earn credits toward early release. Weaver, 450 U.S. at 25-26, 101 S.Ct. at 962-63, 67 L.Ed.2d at 20-21. The amendment reduced the amount of time an inmate could earn through good conduct toward his sentence. Id. at 25-26, 101 S.Ct. at 962-63, 67 L.Ed.2d at 20-21. The court held that the retroactive application of the amendment was unconstitutional because on its face, the amendment created a significant risk of prolonged incarceration. Id. at 33-34, 101 S.Ct. at 966-67, 67 L.Ed.2d at 25-26. By its terms, it prevented an inmate from reducing his sentence to the same extent as was possible prior to the amendment. Id. at 33-34, 101 S.Ct. at 966-67, 67 L.Ed.2d at 25-26.

Taylor and his counsel argue the change in Iowa law from conducting yearly personal interviews to only reviewing an inmate’s case file each year produces a serious risk of increasing the measure of punishment attached to an inmate’s crime. Taylor cites the Iowa Parole Board’s annual report for statistics showing that those who receive personal interviews are more likely to granted parole than those who only receive a case file review. Taylor further asserts the board has a policy of prolonging incarceration for class B felons because the board’s annual report states that “there are certain types of offenders from whom the public must be protected as long as possible.” Taylor argues that the unlimited discretion of the board to grant or deny personal interviews effectively results in a longer period of incarceration.

The State argues that the amendment does not create a sufficient risk of prolonged incarceration because even though Taylor has not received an interview, he still receives annual consideration for parole through a case file review. The State notes that since Taylor was convicted of a serious crime and received a lengthy sentence, his chance of parole is remote. It further asserts that under the administrative rules implementing section 906.5, the board is not required to interview inmates but can exercise its discretion to grant personal interviews. Iowa Admin. Code § 205-8.6. The State emphasizes that the board denied parole thus far due to the serious nature of his crime and because Taylor had not completed his treatment or a sexual predator assessment. The board’s 2006 evaluation stated that parole will be reconsidered if Taylor completes treatment and if the department of corrections approves him for parole.

The district court acknowledged that the annual report statistics show that inmates that receive interviews are more likely to be granted parole or work release. In 2004, forty-nine percent of inmates interviewed received parole or work release while only forty-two percent of case file reviewed inmates received parole or work release privileges. In 2005, forty-three percent of interviewed inmates and thirty-five percent of case file reviewed inmates were granted parole or work release. The court correctly pointed out that despite the increased likelihood of receiving parole or work release through the interview procedure, the statistics fail to show how this affects the length of an inmate’s incarceration. This lack of proof, the court found, coupled with the board’s discretion to grant interviews in any given case, made Taylor’s ex post facto claim speculative.

We agree with the district court’s analysis. The amendment does not extend the length of incarceration on its face. Thus Taylor must show that imprisonment is prolonged by the statute’s effect. Taylor has not provided statistics comparing the length of incarceration of interviewed Class B felons with the length of incarceration of Class B felons who only receive case file reviews. Although this comparison would be probative of whether the rule change results in increased incarceration, it still would not necessarily be conclusive given the various factors the parole board considers in its review of each case and its ability to exercise discretion according to the circumstances of each inmate. Given the numerous factors a board considers in reaching a parole decision and in deciding whether to conduct a personal interview or case file review of inmates, we cannot infer from the statistics provided that those who receive only case file reviews are at a significant risk of serving longer periods of incarceration. Also significant is how the amendment may increase the board’s efficiency while maintaining its discretion to grant personal interviews in any case.

The policy enables the Board to put its resources to better use, to ensure that those prisoners who should receive parole come to its attention. By concentrating its efforts on those cases identified as having a good possibility of early release, the Board’s Rules might result in the release of some prisoners earlier than would have been the case otherwise.

Garner, 529 U.S. at 254, 120 S.Ct. at 1370, 146 L.Ed.2d at 247. By reducing the amount of personal interviews required, the board is allowed to spend more time reviewing inmates who are immediately prepared for parole or those with exceptional circumstances. Taylor has failed to prove that receiving annual case file reviews instead of personal interviews creates a sufficient risk of serving a longer term of incarceration. We find no violation of the federal or state constitutional ex post facto prohibitions and affirm.

AFFIRMED.

      . A person serving a sentence for sexual abuse in the second degree is subject to a mandatory minimum sentence. This person is not eligible for parole or work release until he “has served seven-tenths of the maximum term of the person’s sentence.” Iowa Code § 902.12(3). However, this mandatory minimum sentence does not apply to Taylor because it was enacted in 1996, after Taylor committed the offenses. Thus, Taylor is not excluded from the parole review procedures as a felon serving a mandatory minimum sentence.

      . The district court found Taylor is also not exempt from parole review under the amended statute because he is not currently serving a sentence of “more than twenty-five years.” The .court determined he is currently serving a twenty-five year sentence and will later serve the five-year sentence for his conviction of lascivious acts with a child. The parties have not challenged this finding on appeal.