in the Interest of J.R.H., Jr., H.H., and B.T., Children

• Court: Court of Appeals of Texas
• Decided: October 12, 2018
• Docket: 06-18-00052-CV
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-18-00052-CV

IN THE INTEREST OF J.R.H., JR., H.H., AND B.T., CHILDREN

On Appeal from the County Court at Law Hopkins County, Texas Trial Court No. CV42794

Before Morriss, C.J., Moseley and Burgess, JJ. ORDER

As a result of a petition filed by the Texas Department of Family and Protective Services

(the Department), the trial court terminated Mother’s parental rights to J.R.H., Jr., H.H., and B.T.,

and Father’s parental rights to B.T. Father has filed a separate appeal from the termination order.

In examining the record on appeal, we have determined that it is necessary to abate this appeal to

allow the trial court the opportunity to comply with the Indian Child Welfare Act (ICWA). 1

Congress passed the ICWA in response to the “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.” Miss. Band of

Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). “The ICWA applies to all state child

custody proceedings involving an Indian child when the court knows or has reason to know an

Indian child is involved.” In re C.C., No. 12-17-00114-CV, 2017 WL 2822518, at *2 (Tex. App.—

Tyler June 30, 2017, no pet.) (mem. op.) (citing 25 U.S.C.A. § 1912(a) (Westlaw current through

PL 115–231); In re R.R., Jr., 294 S.W.3d 213, 217 (Tex. App.—Fort Worth 2009, no pet.)). “An

Indian child is defined by the ICWA 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.’” Id. (quoting 25 U.S.C.A. § 1903(4) (Westlaw

1 On October 4, 2018, the United States District Court for the Northern District of Texas in Brackeen, et al., Plaintiffs, v. Zinke, et al., Defendants, and Cherokee Nation, et al., Intervenors-Defendants, Civil Action No. 4:17-cv-00868-O, entered an Order granting in part and denying in part motions for summary judgment that asserted that certain sections of the ICWA, and the corresponding regulations, are unconstitutional. We make no comment regarding any effect that ruling or case may have.

2 current through PL 115–231)). “The ICWA, however, does not define what constitutes being a

‘member’ or ‘being eligible for membership.’” Id. (citing 25 U.S.C.A. § 1903(4)). “Each tribe

has its own criteria for determining tribe membership.” Id.

“The Bureau of Indian Affairs created guidelines for state courts to use in Indian child

custody proceedings to assist with the interpretation of the ICWA.” Id. (citing Bureau of Indian

Affairs Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines), 44 Fed.

Reg. 67,584 (Nov. 26, 1979)). The BIA Guidelines state, “Proceedings in state courts involving

the custody of Indian children shall follow strict procedures and meet stringent requirements to

justify any result in an individual case contrary to these preferences.” Id. (quoting BIA Guidelines,

44 Fed. Reg. at 67,586). “Specific instructions are provided in the Guidelines for the determination

of the status of an alleged Indian child.” Id. (citing In re J.J.C., 302 S.W.3d 896, 900 (Tex. App.—

Waco 2009, no pet.)). “The burden is placed on the trial court to seek verification of the child’s

status through either the Bureau of Indian Affairs or the child’s tribe.” Id. (citing BIA Guidelines,

44 Fed. Reg. at 67,586 (stating that “the court shall seek verification of the child’s status”)).

“[C]ircumstances under which a state court has reason to believe a child involved in a child custody

proceeding is an Indian include [when] . . . (i) Any party to the case . . . informs the court that the

child is an Indian child . . . . [and] (ii) Any public or state-licensed agency involved in child

protection services or family support has discovered information which suggests that the child is

an Indian child.” Id. (quoting BIA Guidelines, 44 Fed. Reg. at 67,586).

3 “Under the ICWA, an Indian tribe is entitled to notice of a custody proceeding involving

an Indian child.” Id. (citing 25 U.S.C.A. § 1912(a)). “It is the duty of the trial court and the

Department to send notice in any involuntary proceeding ‘where the court knows or has reason to

know that an Indian child is involved.’” Id. (quoting 25 C.F.R. § 23.11 (Westlaw current through

October 5, 2018 issue)). “Section 23.11 also requires that the notice be sent to the ‘appropriate

Regional Director’ and the Secretary of the Interior.” Id. (quoting 25 C.F.R. § 23.11(a), (b), (c)).

On receipt of the notice, the Secretary of the Interior or his designee is required “to make

reasonable documented efforts to locate and notify the tribe and the child’s Indian parent or

custodians within fifteen days or to notify the trial court how much time is needed to complete the

search for the child’s tribe.” Id. (citing 25 C.F.R. § 23.11(c)).

“A violation of the ICWA notice provisions may be cause for invalidation of the

termination proceedings at some later, distant point in time.” Id. (citing 25 U.S.C.A. § 1914

(Westlaw current through PL 115–231) (providing that “[a]ny Indian child who is the subject of

any action for . . . termination of parental rights under State law, any parent . . . from whose custody

such child was removed, and the Indian child’s tribe may petition any court of competent

jurisdiction to invalidate such action upon a showing that such action violated any provision of

sections 1911, 1912, and 1913 of this title”)).

Here, with respect to each child, the Department acknowledged, in two permanency reports

included in the clerk’s record, that Mother reported that the children had possible American Indian

heritage and the child’s American Indian status was “yet to be determined.” Both Mother’s report

and the Department’s knowledge of her report that the children may have Indian ancestry were

4 “sufficient to trigger the ICWA’s requirements for notification and determination of Indian status.”

Id. at *3. Therefore, the trial court was obligated to notify and “seek verification of the child’s

status from either the Bureau of Indian Affairs or the child’s tribe.” BIA Guidelines, 44 Fed. Reg.

at 67,586. These notice provisions are mandatory. Id.

Thus, because the inquiry required by the ICWA is necessary here, we abate the appeal in

cause number 06-18-00052-CV, with the following instructions:

(1) the trial court shall provide proper notice that complies with the ICWA’s statutory

notice requirements discussed herein no later than October 21, 2018;

(2) the trial court shall thereafter conduct a hearing to determine whether B.T. is an Indian

child under the ICWA no later than November 20, 2018; 2

(3) the trial court shall cause a record of the proceedings to be prepared and shall make

appropriate findings as to whether B.T. is an Indian child;

(4) the reporter’s record from the hearing shall be filed with this Court no later than

November 30, 2018; and

(5) a supplemental clerk’s record (including any orders and findings resulting from the

ICWA hearing) shall be filed with this Court no later than November 30, 2018.

See TEX. R. APP. P. 44.4. The appeal will be reinstated in this Court following the filing of the

supplemental appellate records. Until such time, the current submission date of October 30, 2018,

in cause number 06-18-00052-CV is hereby withdrawn.

2 Although this order only applies to B.T., nothing in this order shall preclude the trial court or the Department from following the same procedures regarding J.R.H., Jr., and H.H. 5 IT IS SO ORDERED.

BY THE COURT

Date: October 12, 2018