in the Interest of Y.J., a Child

• Court: Court of Appeals of Texas
• Decided: December 19, 2019
• Docket: 02-19-00235-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-19-00235-CV ___________________________

IN THE INTEREST OF Y.J., A CHILD

On Appeal from the 323rd District Court Tarrant County, Texas Trial Court No. 323-107644-18

Before Sudderth, C.J.; Gabriel and Birdwell, JJ. Memorandum Opinion by Justice Birdwell Chief Justice Sudderth and Justice Gabriel concur without opinion. MEMORANDUM OPINION

This unusual appeal is from an order terminating parental rights, but neither

parent has appealed, the Department of Family and Protective Services (Department)

was dismissed and has not appealed, and no appealing party challenges the

termination. Instead, three intervenors––the Navajo Nation, the Office of the

Attorney General of the State of Texas (AG), and two of the nonparents the trial

court named as joint managing conservators for the child, C.B. and J.B. (the Bs)––

appeal the part of the trial court’s order naming the Bs and the child’s Navajo

maternal great-aunt A.J. the child’s joint managing conservators.

At trial and on appeal, the majority of the parties’ arguments have centered on

the constitutionality of the federal Indian Child Welfare Act (ICWA) and its

applicability to this case. If constitutional, ICWA applies to certain aspects of this case

because the child at issue is Navajo through her biological mother (Mother). See 25

U.S.C.A. §§ 1901–63. At the heart of the dispute is whether ICWA’s post-termination

placement preferences––which favor placement of an Indian child with Indian

families––control, or whether the trial court should apply solely Texas law regarding

the child’s best interest. Id. § 1915 (mandating that Indian child be placed in a

preadoptive or adoptive placement with Indian relatives, the child’s tribe, or any other

Indian family absent good cause not to do so); Tex. Fam. Code Ann. § 153.002 (“The

best interest of the child shall always be the primary consideration of the court in

determining the issues of conservatorship and possession of and access to the child.”).

2 The Navajo Nation contends that ICWA is constitutional and mandates placing

the child solely with A.J.1 The AG and the Bs claim that ICWA is unconstitutional

under both the United States and Texas Constitutions, that it does not pre-empt

Texas law and therefore cannot be applied to these proceedings, and that the trial

court abused its discretion under Texas law by naming A.J. as one of the child’s joint

managing conservators along with the Bs.

The trial judge purported not to determine ICWA’s constitutionality under the

United States Constitution. Instead, he held that even if ICWA does not violate the

United States Constitution, it nevertheless does not apply to this proceeding because

(1) ICWA violates the anticommandeering doctrine and therefore cannot validly pre-

empt Texas law and (2) Family Code Section 152.104, which the judge concluded

attempts to engraft ICWA into Texas law, violates the Texas constitution.

After considering the record and procedural posture of this case––taking into

account the ultra-accelerated nature of this appeal––we conclude we need not decide

at this time whether ICWA is constitutional; regardless of ICWA’s application, the

trial court committed reversible error requiring a new trial on conservatorship. We

therefore reverse only the part of the trial court’s order naming the Bs and A.J. joint

managing conservators for the child, and we remand the case for a new trial on that

issue.

Alternatively, the Navajo Nation argues that if ICWA does not apply, the trial 1

court did not abuse its discretion by naming A.J. a joint managing conservator along with the Bs.

3 Pretrial Factual and Procedural Background

Removal and initial placement efforts

On June 13, 2018, the Department filed a petition seeking conservatorship of

Y.J. or termination of her parents’ rights because Y.J. had tested positive for

marijuana, amphetamines, and methamphetamines at birth. In the attached affidavit, a

Department caseworker averred that Mother had told Texas Child Protective Services

(CPS) workers that she is a member of the Navajo tribe and that the workers had

contacted the tribe to seek Navajo tribal members for foster placement. Mother

named more than one man as a possible father; at least one of those men requested

DNA testing and was excluded as Y.J.’s biological father. The Department alleged

that it had attempted to contact some of Mother’s suggested placements, but none

were suitable. It also alleged that Mother had an extensive history with New Mexico

CPS, that seven of her other children had been removed from her care, and that “the

Tribal Council” had placed four of those children with relatives. The caseworker

stated further in the affidavit that one of Mother’s other children had been removed

in Texas when the maternal grandmother––who allegedly had a New Mexico CPS

history and with whom Mother had left the child––had tested positive for

methamphetamine use. The affidavit also stated that the Navajo Nation was “working

to locate a potential Navajo foster home for placement.”

An associate judge signed an order naming the Department Y.J.’s temporary

sole managing conservator.

4 Mother waived service of citation. After the statutory temporary adversary

hearing, see Tex. Fam. Code Ann. § 262.201, the trial court ordered Mother and the

child’s alleged fathers to submit the Section 261.3072 Child Placement Resources

Form and specifically found, “the Department . . . does not have the option of placing

the child with a relative [or] other designated caregiver.” The order also noted that the

“inquiry regarding the child or family’s possible Indian ancestry [was] not complete

due to ex parte proceedings or similar circumstances.” The Department placed Y.J. in

a non-Indian foster home.

Four days after the adversary hearing, the Navajo Nation sent a letter stating

that Y.J. was eligible for “ICWA[] service” and that the Navajo Nation would assign

an ICWA social worker to the case to coordinate services with the Department.

Identification of first ICWA-compliant home

Although a caseworker noted in the child’s June 2018 service plan, “Worker

will engage with the Navajo Nation to discuss possible placements,” she also stated

that the Navajo Nation had not contacted the Department about what it could do to

preserve the child’s heritage. In a July 2018 status report, a CPS specialist told the trial

court that the Navajo Nation had identified an ICWA-compliant home as a possible

placement.

See Tex. Fam. Code Ann. § 261.307(a)(2) (describing form’s contents, 2

including instruction that parent list at least three persons who could be relative caregivers or designated caregivers), § 264.751 (defining types of caregivers).

5 Around the same time, the Department filed a Motion for Expedited

Placement Under the Interstate Compact for the Placement of Children (ICPC),3 in

which it sought an expedited placement of the child with a Colorado family identified

by the Navajo Nation. The Navajo Nation had also sent the Department a “favorable

Navajo Adoption Home Study” on the family. The nine-page, detailed report

discusses the suitability of the couple and the man’s Navajo heritage and family ties. It

further notes that although the man had a “finding” on an Arizona background check,

the offense was over twenty years old (i.e., when he was twenty-one or younger) and

his lifestyle had changed for the better.

The trial court approved the placement in late July 2018 and ordered the

Department to expedite its compliance with the ICPC to effectuate the placement.

But the Department’s attempts to comply with the ICPC for this placement were

repeatedly rejected for administrative reasons, such as missing records and lack of a

social security number for Y.J. After a second failed attempt in October 2018, the

Department stopped trying to comply with the trial court’s order because, by that

time, a Texas federal judge had held ICWA unconstitutional in a case in which the

State of Texas is a party. See Brackeen v. Zinke, 338 F. Supp. 3d 514, 536–46 (N.D. Tex.

See id. §§ 162.101–.107 (adopting the ICPC, by which states cooperate to place 3

children across state lines with the goal of placing children “in a suitable environment and with persons or institutions having appropriate qualifications and facilities” while giving authorities in the state where the child resides and the state where the child is to be placed an adequate opportunity and the necessary information to evaluate the placement’s suitability).

6 2018), rev’d, 937 F.3d 406 (5th Cir. 2019), reh’g en banc granted, 942 F.3d 287 (5th Cir.

2019). The Department never placed Y.J. with the Colorado family,4 and she stayed

with her Texas, non-ICWA-compliant foster placement.

Interventions related to Y.J.’s placement

In late November 2018, the Navajo Nation intervened in the Department’s suit

and immediately sought removal of the case to a tribal court under ICWA. The Bs,

who by that time had adopted Y.J.’s three-year-old half sibling Alan, 5 also intervened

seeking termination of Y.J.’s parents’ rights, adoption of Y.J., and appointment as

Y.J.’s permanent managing conservators. The Bs, along with Mother,6 opposed

removal of the case to a tribal court. The Navajo Nation opposed placement of Y.J.

with the Bs.

After the Bs intervened, Mother signed an affidavit that was filed in the clerk’s

record; the affidavit contains a certificate of service from Mother’s appointed counsel.

In the affidavit, Mother asked the trial court to place Y.J. with the Bs “as soon as

possible . . . [to] allow her to be placed with her sibling (who is also a Navajo

4 The Department began reconsidering this family in January 2019, and they were approved in February 2019, but by that time the Navajo Nation had notified the Department about A.J., who as a family member is a preferred placement under ICWA. 5 Alan is a pseudonym. See Tex. Fam. Code Ann. § 109.002(d). Mother has seven other children, but Alan is the closest in age to Y.J. Because Y.J.’s father is unknown, we refer to all of Mother’s other children as half siblings.

The Department had lost track of Mother, but the Bs found her in the Tarrant 6

County Jail. Mother’s appointed counsel filed the objection to removal to tribal court.

7 member).” Mother averred that placement with the Bs allowed Y.J. “reasonable

proximity to [Mother], her home, [and] extended family and siblings.” Mother also

signed a Section 261.307 form naming the Bs as “relatives or close family friends”

who could take care of Y.J.

On December 3, 2018, the Fifth Circuit Court of Appeals stayed enforcement

of the Northern District trial judge’s order determining that ICWA is

unconstitutional.

Later that month, the Navajo Nation filed a Motion for Placement of the

Child, urging the trial court to place Y.J. with the Colorado family that the Navajo

Nation had originally identified and complaining that the Department had not

complied with the July 2018 order requiring it to do so. The Bs responded by moving

to have Y.J. placed with them. They also opposed the Navajo Nation’s motion,

arguing that if ICWA does not apply, Texas law favors placement with them because

they had adopted Alan. Cf. 40 Tex. Admin. Code § 700.1309(3) (setting forth factors

Department considers in placing children in substitute care and including as a factor

that “[s]iblings removed from their home should be placed together unless such

placement would be contrary to the safety or well-being of any of the siblings”). They

argued alternatively that good cause existed to depart from ICWA’s placement

preferences.

Thus began a course of briefing in the trial court on ICWA’s constitutionality,

with the Bs challenging its constitutionality and the Navajo Nation advocating its

8 constitutionality. The AG filed an amicus curiae brief in support of the Bs, challenging

the constitutionality of ICWA on the same grounds and also urging placement of Y.J.

In January 2019, the Navajo Nation amended its placement request and instead

moved to have Y.J. placed with Mother’s great-aunt A.J.––a Navajo who lives on the

reservation in Arizona near Y.J.’s four oldest half siblings, 7 who live with another

great-aunt––and, alternatively, with the Colorado couple. The Navajo Nation also

moved to dismiss the Bs’ intervention for lack of standing. The trial court denied that

motion.

In March 2019, the trial court issued a ruling on ICWA’s applicability, making

the following findings:

The Court acknowledges multiple claims under the United States Constitution, but is providing deference to the United States Court of Appeals for the Fifth Circuit Stay Pending Appeal dated December 3, 2018, and conscientiously refraining from ruling on those matters in this order of the court.

The Court finds . . . Texas Family Code §152.104(a) to be in violation of Article I, Section 1 of the Texas Constitution and inapplicable to the proceedings in this matter.

The Court finds . . . Texas Family Code § 152.104(a) to be in violation of Article I, Section 3 of the Texas Constitution and inapplicable to the proceedings in this matter.

7 Although Mother’s rights to these half siblings have not been terminated, she does not see them.

9 The Court finds . . . Texas Family Code § 152.104(a) to be in violation of Article I, Section 3a of the Texas Constitution and inapplicable to the proceedings in this matter.

The Court finds . . . Texas Family Code § 152.104(a) to be in violation of Article I, Section 19 of the Texas Constitution and inapplicable to the proceedings in this matter.

The Court finds . . . Texas Family Code § 152.104(a) to be in violation of Article I, Section 29 of the Texas Constitution and inapplicable to the proceedings in this matter.

The court also held,

The Court, having reviewed the Motion to Declare ICWA Inapplicable as Unconstitutional, any responses and reply thereto, the evidence presented, the pleadings on file, the arguments of the parties, and the applicable law, is of the opinion that the Motion to Declare ICWA Inapplicable as Unconstitutional should be GRANTED.

IT IS HEREBY ORDERED that Texas Family Code 152.104, is unconstitutional and inapplicable to these proceedings.

Despite this ruling, neither the Bs nor the Department moved to strike the

Navajo Nation’s intervention.

Final trial was set for May 3, 2019. Although A.J. intervened before final trial,

the trial court dismissed her intervention petition for lack of standing. 8

A little less than a month before trial, Mother signed a voluntary affidavit of

relinquishment of her parental rights; in it, she designated the Department as Y.J.’s

8 A.J.’s petition in intervention stated “that placement with her would provide the child access to the four siblings and the child’s maternal grandmother.” [Emphasis added.] Because the evidence showed that in Navajo society older maternal relatives are referred to as grandmothers, it is unclear whether she was referring to herself or to Y.J.’s actual maternal grandmother.

10 managing conservator and stated that she preferred that Y.J. be placed with the Bs for

adoption.

At trial, the Department, the Navajo Nation, and the Bs all supported

termination of Y.J.’s parents’ rights and appointment of the Department as Y.J.’s

permanent managing conservator. The Department and the Navajo Nation

recommended that Y.J. be placed with A.J., 9 but the Bs advocated placing Y.J. with

them and asked to be named possessory conservators so that the Department would

not place Y.J. with A.J. after being named permanent managing conservator. The trial

court ordered on the record that Mother’s and all alleged fathers’ rights be terminated,

but instead of naming the Department Y.J.’s permanent managing conservator, the

trial court named the Bs and A.J. joint managing conservators and designated the Bs

as the primary persons to designate Y.J.’s residence, so long as Y.J. was living within

9 The Department’s recommendation was different than the AG’s amicus recommendation. The record does not indicate why these two State agencies disagreed on the proper placement for Y.J., but the record does show that the Department had dealt with the Bs in connection with Alan’s adoption and that Department workers were aware of the Bs when Y.J. came into care because of the federal court litigation. Y.J.’s caseworker could not explain why the Department never considered the Bs even for a temporary placement because other Department workers made that decision; she admitted the Department did not follow its own policy about placing removed children in care with siblings. Additionally, C.B. testified that he had asked Y.J.’s caseworker––also Alan’s caseworker––on the date the Department removed Y.J. from Mother’s care whether she knew anything about Y.J.’s being in care, and she told them she did not know and said, “[I]f there was a baby in care, I think I would know about it.” The caseworker at first did not admit that she had talked to C.B., but when given the date of the phone call, she explained, “I believe at that time I didn’t feel comfortable with giving him any information of that case” because she could not disclose a child’s personal information to a nonparty.

11 two states of Arizona (including Texas). The trial court stated its intention to treat the

Bs and A.J. as if they were divorced parents residing more than 100 miles apart, but

with a stair-step schedule for A.J.’s possession, beginning with one week in summer

2019, two weeks in summer 2020, and so on until Y.J. turned five, when A.J. would

have extended summer possession. The trial court dismissed the Department from

the suit. 10

After trial, the AG also intervened in the suit and filed a motion for new trial.

The AG continued to support placement of Y.J. with the Bs.

The trial judge did not sign an order of termination until almost two months

after trial. The order is consistent with the trial judge’s ruling on the record and

provides a detailed possession schedule, which until 2023 gives A.J. exclusive

possession of Y.J. only during the stair-stepped weeks in the summer. Beginning in

2023, when Y.J. turns five, the order provides for possession by A.J. one weekend

each month, one week every spring, and extended summer possession. The order

provides that the Bs have the right of possession of Y.J. “at all other times not

specifically designated” for A.J.

The only parties that appealed the trial court’s judgment are the Bs, the AG,

and the Navajo Nation. Because the Department did not file a notice of appeal, and

no party has argued that just cause exists for rendering a judgment that the

Department be named managing conservator, we do not consider that as a choice for

10 The Department did not file a notice of appeal from the trial court’s ruling.

12 our disposition. See Tex. R. App. P. 25.1(c); see also Tex. Fam. Code Ann. § 161.207(a)

(requiring trial court to appoint “suitable, competent adult” as managing conservator

after termination if not appointing the Department). Thus, the only dispute before

this court is whether the trial court’s awarding joint managing conservatorship to the

Bs and A.J. should stand. The Navajo Nation asks us to reverse and render a

judgment that Y.J. be placed in accordance with ICWA preferences (or in the

alternative, to remand for ICWA-compliant proceedings); the Bs and the AG ask us

to hold ICWA unconstitutional, reverse the trial court’s order, and render judgment

that the Bs be named Y.J.’s sole managing conservators so that they may adopt her.

Because we determine that the trial court abused its discretion in making its joint-

managing-conservatorship ruling, necessitating a remand for a new trial, regardless of

whether ICWA applies, we do not reach the constitutionality of ICWA. But we do not

foreclose the trial court’s reconsidering the issue and ruling on it in the remanded

proceedings.

The Bs Have Standing In This Suit

In its fifth issue,11 the Navajo Nation argues that the Bs lacked standing to seek

placement of Y.J. with them or appointment as managing conservators. According to

the Navajo Nation, Family Code Section 102.005(4), on which the Bs relied to

intervene in the suit, allows a party to seek only adoption or termination and

adoption, not placement or appointment as a managing conservator. The Navajo

11 We address the issues out of order for ease of discussion.

13 Nation also argues that Section 102.005 allows a party to file only an original suit, not

an intervention, because the statute does not specifically say that it allows

intervention.

Section 102.005 provides that “[a]n original suit requesting only an adoption or

for termination of the parent–child relationship joined with a petition for adoption

may be filed by . . . an adult who has adopted, or is the foster parent of and has

petitioned to adopt, a sibling of the child.” Tex. Fam. Code Ann. § 102.005(4). The

Navajo Nation does not dispute that the Bs have adopted Alan.

As a general rule, an individual’s standing to intervene is commensurate with

that individual’s standing to file an original lawsuit. In re A.C., Nos. 10-15-00192-CV,

10-15-00193-CV, 2015 WL 6437843, at *9 (Tex. App.—Waco Oct. 22, 2015, no pet.)

(mem. op.); Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex. App.—Houston [1st

Dist.] 2007, no pet.) (op. on reh’g) (“Generally, an intervenor must show standing to

maintain an original suit in order to intervene.”). A party’s standing to file an original

suit affecting the parent–child relationship is typically governed by Family Code

Sections 102.003, 102.004, and 102.005. Tex. Fam. Code Ann. §§ 102.003–.005; A.C.,

2015 WL 6437843, at *9; see In re Smith, 262 S.W.3d 463, 467 (Tex. App.—Beaumont

2008, orig. proceeding [mand. denied]). A party who has standing to file an original

suit under Section 102.005 may also file an intervention under that same statute. A.C.,

2015 WL 6437843, at *8–9.

14 The Navajo Nation acknowledges the holdings of A.C. and Whitworth but

argues that by not specifically mentioning intervention, the plain language of Section

102.005 allows only the filing of an original suit, not an intervention. The Navajo

Nation cites no authority supporting this proposition, and we have not found any. It

discusses the holding in Whitworth––in which the court discussed Family Code Section

102.004(b), which specifies which parties can intervene in a suit affecting the parent–

child relationship––but Whitworth does not support the Navajo Nation’s argument.

222 S.W.3d at 621–22. Section 102.004(b) provides standing to intervene to certain

parties who do not have standing under another Family Code provision to file an

original suit. See Tex. Fam. Code Ann. § 102.004(b); In re N.L.G., 238 S.W.3d 828, 830

(Tex. App.––Fort Worth 2007, no pet.); In re A.M., 60 S.W.3d 166, 169 (Tex. App.—

Houston [1st Dist.] 2001, no pet.). But the Bs do have standing to file an original suit

under Section 102.005(4), and that section does not expressly prohibit a party with

original standing from intervening in a suit. Nor does any other Family Code

provision. But cf. Tex. Fam. Code Ann. § 102.006 (limiting standing of certain parties

who would otherwise have standing to file an original suit affecting the parent–child

relationship). Therefore, we conclude that the plain language of Section 102.005(4)

permits the Bs to intervene rather than bars them from intervening.

The Navajo Nation argues, alternatively, that the Bs’ standing was limited to

seeking adoption only, or termination and adoption, and that the Bs have no standing

to seek placement of Y.J. or managing conservatorship because Section 102.005 limits

15 the relief they can ask for. The Bs’ focus in their pleadings and at trial was for the

parents’ rights to be terminated so that the Bs could adopt Y.J., which is what Section

102.005 gives them standing to seek. See Turner v. Robinson, 534 S.W.3d 115, 123 (Tex.

App.—Houston [14th Dist.] 2017, pet. denied) (“Standing is determined at the time

suit is filed in the trial court.”). Their requests for conservatorship were in response to

the Department’s apparent unwillingness to consider them as a placement and

potential adoption choice. Additionally, because Y.J. had not been placed with them,

she had not lived with them for at least six months––a prerequisite to adoption unless

the trial court waives that requirement when it is in the child’s best interest. See Tex.

Fam. Code Ann. § 162.009. Absent the trial court’s waiver, the only way the Bs could

fulfill the residency prerequisite was by obtaining conservatorship and possession of

Y.J.

Here, the trial court ordered termination but not adoption in a suit in which the

Bs had standing to seek them jointly. Nothing in Section 102.005 limits their standing

to seek post-termination conservatorship as against the Department or any other

nonparent in this instance. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,

446 (Tex. 1993) (noting that because standing—in terms of a party’s right to initiate a

lawsuit and the trial court’s power to hear it—is determined when suit is filed,

subsequent events do not deprive the court of subject matter jurisdiction).

We therefore overrule the Navajo Nation’s fifth issue.

16 Constitutionality of ICWA and Family Code Section 152.104(a)

In its first and second issues, the Navajo Nation contends that the trial judge

erred by not holding ICWA constitutional and by holding that Section 152.104(a) of

the Family Code violates the Texas constitution. The AG’s first and second issues,

and the Bs’ first through third issues, urge the opposite contention: they argue that

ICWA is unconstitutional, that Family Code Section 152.104(a) engrafts all of ICWA

into Texas law, and that Section 152.104(a) violates the Texas constitution. Although

we hold that the trial court made two errors in its legal reasoning, we do not sustain

any of the parties’ issues related to the constitutionality question because we need not

decide their merits.

First, although the trial judge stated that he declined to decide ICWA’s

constitutionality under the United States Constitution, he determined that ICWA

could not validly pre-empt Texas law because it violates the anticommandeering

doctrine, as explained in Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018): “The

anticommandeering doctrine . . . is simply the expression of a fundamental structural

decision incorporated into the Constitution, i.e., the decision to withhold from

Congress the power to issue orders directly to the States.” In describing the doctrine,

the Supreme Court explained that a statute that violates the anticommandeering

doctrine is unconstitutional because no provision in the Constitution gives Congress the

power to pass such a law. Id. at 1479. Although Murphy discussed whether a statute

that violates the anticommandeering doctrine could validly pre-empt state law, the

17 Court determined that such a statute could not because pre-emption flows from the

Supremacy Clause, which is not an independent grant of congressional power. Id. In

other words, pre-emption under the Supremacy Clause will not save a statute that

violates the anticommandeering doctrine because such a law still exceeds Congress’s

power under the United States Constitution, and otherwise unconstitutional statutes

cannot pre-empt state law. See id. Thus, by determining that ICWA violates the

anticommandeering doctrine under Murphy and cannot pre-empt Texas state law, the

trial court actually determined that ICWA is unconstitutional under the United States

Constitution, even though it purported not to do so.

Second, the trial court then held that Texas Family Code Section 152.104(a)

purports to independently apply all provisions of ICWA to all aspects of a Texas child

custody proceeding involving an Indian child. See 25 U.S.C.A. § 1903(4) (defining

“Indian child”). Section 152.104(a) provides that “[a] child custody proceeding that

pertains to an Indian child as defined in the Indian Child Welfare Act of 1978 (25

U.S.C. Section 1901 et seq.) is not subject to this chapter to the extent that it is governed

by the Indian Child Welfare Act.” Tex. Fam. Code Ann. § 152.104(a) (emphasis

added). “[T]his chapter” is Chapter 152, which adopted the Uniform Child Custody

Jurisdiction and Enforcement Act (UCCJEA). Id. § 152.101. Chapter 152 deals

generally with the proper court in which custody disputes regarding a child are to be

heard and the authority to be given to child custody determinations of other courts.

See id. §§ 152.001–.317.

18 By its plain language, Section 152.104(a) does not purport to apply all ICWA

provisions to all facets of Texas child custody proceedings. By limiting its scope to

“this chapter,” it defers to ICWA only in jurisdictional issues arising under the

UCCJEA. 12 No such issues occurred in this proceeding. Except for the Navajo

Nation’s attempt to remove the case to a tribal court––the denial of which the Navajo

Nation has not appealed13––all parties have agreed that the trial court is the court of

continuing, exclusive jurisdiction for this case. See id. § 152.202. Thus, the trial court

erred by holding that Section 152.104(a) of the Family Code purported to make all of

ICWA applicable to all facets of Texas child custody proceedings, independent of

federal law. The placement preferences of ICWA at the heart of this case are not

affected by whether Section 152.104(a) violates the Texas constitution; thus, that

ruling of law was unnecessary to the disposition of this case. 14

12 By comparison, other states have specifically incorporated ICWA into state proceedings. See, e.g., Cal. Welf. & Inst. §§ 224–224.6 (incorporating specific provisions of ICWA into California law); Okla. Stat. tit. 10, § 40.1 (stating that the Oklahoma Indian Child Welfare Act was intended to clarify “state policies and procedures regarding the implementation by the State of Oklahoma of the federal Indian Child Welfare Act”), § 40.6 (“The placement preferences specified in 25 U.S.C. Section 1915, shall apply to all . . . preadoptive, adoptive and foster care placements.”). 13 ICWA allows such a removal only if no parent objects. 25 U.S.C.A. § 1911(b). 14 We therefore agree with the Navajo Nation that Section 152.104(a)’s constitutionality has no bearing on this case. Accordingly, we also decline to address whether Section 152.104(a) violates the Texas constitution. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003).

19 To summarize, the trial court purported not to decide whether ICWA violates

the federal Constitution, but its ruling that ICWA violates the anticommandeering

doctrine is actually a determination that ICWA is unconstitutional. Although the trial

court purported not to apply ICWA to the proceedings, it allowed the Navajo Nation

to participate in the trial 15 and made A.J.––a nonparty whose interest is being

represented only by the Navajo Nation––a joint managing conservator. And, as an

alternative ruling, the trial court found that even if ICWA is constitutional and applied

to the proceedings, good cause existed to deviate from its preferred placement

scheme. See 25 U.S.C.A. § 1915(a)–(b) (providing placement preferences “in the

absence of good cause to the contrary”). Thus, the trial court applied ICWA while

purporting not to apply ICWA.

The trial judge understandably attempted to avoid squarely addressing whether

ICWA violates the United States Constitution. A federal district judge has held that it

does, a Fifth Circuit panel––with one judge dissenting––has held that it does not, and

the Fifth Circuit court has vacated the panel opinion and judgment and will be

rehearing the case en banc. Therefore, this exact issue has been––and will be––

extensively briefed and argued in the federal system in a case in which both the State

of Texas and the Bs are parties. But in his attempt to fashion a remedy that

15 See 25 U.S.C.A. § 1911(c) (giving Indian child’s tribe the right to intervene at any point in a state proceeding for the foster care placement of, or termination of parental rights to, an Indian child).

20 incorporates the important concerns of ICWA 16 and Texas law regarding the best

interest of the child,17 the trial judge made conflicting rulings in this case that are

difficult to harmonize. In attempting to address the interests of all parties and provide

alternative relief in the event the Fifth Circuit (or perhaps ultimately the United States

Supreme Court) decides ICWA is constitutional, 18 the trial judge reversibly erred.

Because, as we explain below, the trial judge’s sua sponte conservatorship ruling

necessitates a new trial regardless of the federal system’s conclusion regarding ICWA’s

constitutionality, we need not reach the federal constitutional issue 19 and therefore do

not grant any of the parties relief under their related issues.

See id. § 1901–02. 16

17 The Navajo Nation contends “that ICWA does not abandon––nor compel trial courts to abandon––the best interests of children. Instead, ICWA supplements the traditional best interest standards with a modified best interest standard and stated placement preferences, which are not absolute.” 18 Practically speaking, we do not quarrel with this approach. Failing to comply with certain provisions of ICWA can result in a challengeable, infirm judgment well after the trial court has made a ruling and the child has bonded with a caregiver, see id. § 1913(d) (allowing an Indian child’s parent who voluntarily consented to adoption to petition to vacate it on duress or fraud grounds), §1914 (allowing Indian child’s parent or tribe to petition to invalidate foster care placement or termination for violation of Sections 1911, 1912, 1913), a result which goes against bedrock principles underpinning Texas family law that are focused on promoting stability and permanence for children. Following the procedural requirements of ICWA for the termination––while recognizing the tension that can seemingly result in some cases between its stated goals and a child’s best interest––is an understandable approach until the federal constitutional question is settled.

Likewise, we need not address the Navajo Nation’s subargument that the AG 19

and the Bs are bound by issue preclusion, an argument which the Navajo Nation

21 Evidence Does Not Support Ruling Under Either Texas Law or ICWA

The Navajo Nation’s fourth issue, and the Bs’ fourth and fifth issues,20

advocate that the trial court’s joint managing conservatorship decision should be

reversed: the Navajo Nation because it contends ICWA requires placement with A.J.

only, in that the evidence is legally and factually insufficient to show that good cause

exists to deviate from ICWA’s Indian-centered placement preferences; and the Bs

because (1) they contend that the trial court’s decision is not in Y.J.’s best interest

under Texas law21 and (2) even if ICWA applies, the evidence shows that good cause

exists to deviate from ICWA’s placement preferences. Because both sides’ complaints

require an examination of the trial evidence, we review their issues together.

Standard of review

The parties agree that we review the trial court’s conservatorship decision for

an abuse of discretion. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.K.M.,

concedes has been rendered moot by the Fifth Circuit’s subsequent actions in the case pending in that court, except to the extent that the complaint must be raised for preservation purposes. 20 We do not reach the Navajo Nation’s third issue, which argues about alleged error in pre-termination placement of Y.J. Because both parents’ rights have been terminated and no party challenges the termination, even if error occurred in the pre- termination placements, the Navajo Nation would not be entitled to relief. See In re A.M., 570 S.W.3d 860, 866–67 (Tex. App.––El Paso 2018, no pet.) (citing, and agreeing with reasoning of, Montana and Iowa cases holding similarly); see also Tex. R. App. P. 47.1.

See generally Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (setting forth 21

nonexhaustive factors courts generally use in analyzing child’s best interest).

22 No. 02-12-00469-CV, 2013 WL 6564267, at *2 (Tex. App.––Fort Worth Dec. 12,

2013, no pet.) (mem. op.). A trial court abuses its discretion if it makes an erroneous

legal ruling even in an unsettled area of law. See In re Dawson, 550 S.W.3d 625, 628

(Tex. 2018) (orig. proceeding); In re United Scaffolding, Inc., 301 S.W.3d 661, 663 (Tex.

2010) (orig. proceeding). Thus, whether the evidence supporting the decision is legally

and factually sufficient is relevant in deciding whether the trial court abused its

discretion. See In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.––Fort Worth 2002, pet.

denied) (op. on reh’g).

Evidentiary review

Termination of parental rights was not the focus of the trial because Mother

relinquished her rights and a father could not be found; instead, the primary

consideration before the trial court was where to place Y.J. after termination. The Bs’

primary focus was on adoption, whether by immediate placement with them and

eventual adoption after a conservatorship or by waiver of the six-month requirement

and immediate adoption.

The Department’s caseworker

As stated before, the Department advocated placement of Y.J. solely with A.J.

The caseworker testified that although delays in the Department’s IT system had

prevented the completion of an ICPC home study for A.J.,22 she had no concerns

22 The Department had sent the request to Arizona, who then had to send the request to the Navajo Nation. Once the Navajo Nation had completed its home study

23 about placement with A.J. after speaking with her on the phone. According to a

representative from the Navajo Nation, the ICPC home study for A.J. would have

been fully completed less than a week after trial. A.J. lives close to Y.J.’s four oldest

half siblings and sees them at least once a week. A.J. had not visited Y.J. while the case

was pending. When asked why, the caseworker responded, “Just financially and she’s

out of state. It’s hard to come to Texas.”

Y.J. was very bonded to the foster family she was living with at the time of trial,

and the Department had no concerns about that home. The Department planned for

Y.J. to stay there pending completion of A.J.’s home study. According to the

caseworker, the Department would have recommended A.J. for placement even if

ICWA did not apply because A.J. is a family member. According to the caseworker,

Y.J.’s best interest was to be placed with A.J. instead of the Bs because of “family

ties,” which includes extended family. A.J. and Y.J.’s oldest half sibling had visited

with Y.J. the day before trial.

The caseworker stated that the Bs had offered Mother an open adoption,23 in

which Mother would continue to have contact with Y.J. The Department did not

think an open adoption was in Y.J.’s best interest. But the caseworker testified that it

and other requirements, it would send the materials back to Arizona, which would then send the final approval to Texas. At the time of trial, Texas had sent the original request to Arizona, but Arizona had not yet forwarded it to the Navajo Nation.

The caseworker was never asked to explain how she knew the Bs had offered 23

an open adoption, but she said that she had become concerned because she had heard about a “possible” open adoption.

24 was in Y.J.’s best interest to stay in her then-current foster placement “for up to . . .

two weeks” until the ICPC approval was finished, “knowing it can be finished with[in]

less than a week.” The Department intended to place Y.J. with A.J. upon Arizona’s

ICPC approval.

According to the caseworker, from September 2018 to the time of trial, the Bs

had possession of and access to Y.J. for at least one visit per month, anywhere from

overnight to a full day. Y.J.’s foster mother set up these visits. When asked whether

the sibling contact between Y.J. and Alan would be maintained if Y.J. were to be

placed with A.J., the caseworker responded, “I believe [Y.J.] will know where to

contact her brother and how that initial -- initial bond that she created when she met

him here.”

Although the foster parent was adoption motivated, the foster family was not

ICWA compliant.

CASA representative

Stacey Main, the CASA representative for Y.J., had also been Alan’s advocate.

Main recommended placing Y.J. with the Bs because of the relationship they already

had with her and to minimize “trauma.”24 She also acknowledged that naming the

Department as Y.J.’s managing conservator would facilitate financial subsidies for Y.J.

24 Main said that CASA had trained her in trauma, utilizing a continuing series of two-hour lectures from a doctor who specializes in childhood trauma.

25 According to Main, Y.J. already had an attachment to her foster mother and to

the Bs. But Main agreed it was important for Y.J. to bond with her oldest half siblings

and extended family in Arizona. As to placement with A.J., Main opined, “I look at it

as a win-win either way. If she goes with the [Bs], she wins. If she goes with [A.J.], she

wins. If she stays with the foster home, she wins. I like them all.” According to Main,

keeping Y.J. “with family” was the main goal, and Y.J. would have contact with her

family with any of those placements.

Y.J. had normal, sibling-type interactions with the Bs’ children. Her then-

current foster parents “adore[d]” her and were bonded to her.

Navajo Nation expert

Celeste Smith, a senior social worker with Navajo Children and Family Services

Indian Child Welfare Act, testified as an expert on the Navajo Nation. Smith is an

enrolled member of the tribe who lives on the reservation. Although Smith agreed

that termination of the parents’ rights was in Y.J.’s best interest, she recommended

placement of Y.J. with A.J.

Smith had initiated a home study for A.J., but she had not received it by the

time of trial because the ICPC request with Arizona had not been completed.

Nevertheless, she had no concerns about A.J. based on background checks. 25 Smith

estimated that when she received the ICPC request from Arizona, she could finish the

25 State and federal background checks, and Navajo Department of Family Services background checks, for A.J. and her adult son living with her showed “no findings.”

26 home study within a week. The only remaining items were for A.J. to obtain a Navajo

Nation foster care license and for Smith to check two additional references. A.J. had

already completed the foster care “trainings,” and Y.J. could be fully placed with A.J.

before A.J. was officially licensed as a foster parent.

Additionally, according to Smith, A.J.’s home was clean, safe, and appropriate

for Y.J. A.J. lived with her adult son in a two-bedroom home with an addition in back

for which a doorway needed to be cut. Y.J. would sleep in A.J.’s bedroom with her,

which is not uncommon for Navajo. A.J. is a homemaker, which is a traditional

Navajo role, and her children help support her and take care of her bills, which is also

Navajo custom. A.J. receives food stamps and her monthly income varies. Her thirty-

three-year-old son and other family members would provide Y.J.’s care when she

could not, such as when she was helping care for her chronically ill mother and

brother. According to A.J., Y.J. will take the bus to school when she gets older.

Smith testified that the references she contacted for A.J. acknowledge that she

is a good candidate for placement. A.J.’s family, including the family living on the

reservation, are “very close” and were supportive of A.J.’s decision to seek placement

of Y.J. with her. Y.J.’s maternal grandmother, A.J.’s sister-in-law, communicates with

A.J. and has contact with Mother. According to Smith, Y.J.’s maternal grandmother

returns to the reservation “on and off.”26

This evidence renders somewhat curious the Department caseworker’s 26

concern that the Bs would seek an open adoption. Although the trial court could not

27 Smith further testified about the importance of the Navajo culture to Y.J.:

“[I]t’s her whole identity. It’s going to help . . . to know where she comes from, what

her clans are, what . . . Navajo culture traditions there are for her. From . . . birth . . .

to [her] elderly age, she could have the ceremonies, the teachings, in order to . . .

[have] a balance[d] life for her.” Smith explained that children are sacred to the

Navajo and that the tribe is always looking to its children’s future. Smith explained

that contact with Y.J.’s oldest half siblings, especially the oldest who understands the

Navajo language and traditional Navajo foods and customs, would help Y.J.’s cultural

understanding of what it means to be a Navajo girl and woman. It is especially

important to hand down the Navajo language. The Navajo Nation’s concerns about

non-Navajo placement were the loss of cultural and institutional knowledge of the

Navajo Nation and the difficulty for children living outside the reservation to

participate in Navajo ceremonies because they generally are not open to the public.

But Navajo children who do not live on the reservation may participate in traditional

ceremonies with their family. Smith acknowledged that Y.J. would not receive benefits

for being a tribal member but would receive free medical care.

have judicially noticed for its truth the Department’s statement in the affidavit attached to its removal petition that Y.J.’s maternal grandmother had a CPS history in New Mexico, see In re R.A., No. 02-18-00185-CV, 2018 WL 5832148, at *8 (Tex. App.—Fort Worth Nov. 8, 2018, no pet.) (mem. op.), it could have judicially noticed that the Department had made such an allegation. Nevertheless, it is undisputed that A.J. does not have contact with Mother.

28 According to Smith, in January 2019, when Mother found out that A.J. was also

interested in placement, Mother told her that she would be satisfied with placement of

Y.J. with either the Bs or A.J. But Smith did not find out about Mother’s affidavit of

relinquishment, in which she again expressed a preference for the Bs, until the day

before trial.

C.B.

C.B. testified that the Bs had found out about Y.J.’s birth through Alan’s

biological paternal grandmother, who is a Cherokee. The Bs keep in touch with her

and the adoptive mother of Mother’s fifth and sixth children, who also have a

Cherokee birth father.

C.B. testified that the Bs had not promised Mother an open adoption but had

not closed the door to possible supervised visitation between Y.J. and Mother if

Mother were to stay sober and was consistent with her promises. In other words, they

were “open to being open.” But C.B. also said that the Bs would comply with any

court order that Mother have no contact with Y.J. Additionally, Mother had never

requested visitation nor had any contact with Alan.

According to C.B., Alan “understands that [Y.J.’s] his sister” and is excited to

see her. She “lights up” around him. All of the Bs’ children are “very playful” with

Y.J., and she likes the attention and interaction. The Bs “feel very strongly that [Y.J.

and Alan] should grow up together and support and love each other” because of their

important sibling bond. The Bs were concerned that if Y.J. were placed with A.J., she

29 might never see Alan again. Their plan was for Y.J. to sleep in a room with Alan until

“it was age appropriate necessary” for her to have her own room.

Although the Bs met with Mother after they found her in the county jail, they

did not ask her to request them for placement, nor did they discuss an open adoption.

C.B. was not present when Mother signed the affidavit of relinquishment, and he did

not ask her to sign it. He did not know where it was signed or created because “[a]ll of

that was handled through her attorney.”

The Bs were trying to learn Navajo culture. They had used age-appropriate

books for that purpose, but because Alan was only three and a half at the time of trial,

the books were more “lifestyle” books. To involve Alan in the Cherokee culture, they

maintained a relationship with his biological family, particularly his biological paternal

grandmother. They had “sought recommendations from her . . . [and] directions

[they] could point him in.” They had attended two public powwows in the

Dallas/Fort Worth area and were educating themselves, as C.B. put it, to “better

educate our child and our children, . . . as a family, what it means to be native, the

history, the culture. . . . [A]s an outsider looking in, as best as we can, that is difficult[,]

and we have always welcomed any resources that are there to help us in that process.”

C.B. acknowledged that because the Cherokee tribe has been more involved in Alan’s

life, he has a stronger connection to that tribe, but the Bs do not prefer one tribe over

another. Alan’s Navajo family had not attempted to contact him, but C.B. said the Bs

30 “would welcome any contact from [that] family to help” raise him. C.B. did not think

that Alan’s Navajo family’s lack of contact with him would change, though.

When asked, “You understand the conundrum here, that we have more than

just one sibling in this picture?” C.B. answered, “Yes.” He acknowledged that “the

problem of trying to prioritize which sibling is most important to have a relationship

with moving forward” was “very complicated.”

J.B.

J.B. acknowledged that the Bs did not know much about Navajo culture. J.B.

had tried to contact Y.J.’s maternal grandmother and had texted her pictures of Alan

at Mother’s request. J.B. testified that Y.J. had visited with the B family one day each

month between September 2018 and January 2019 and once each month for a forty-

eight-hour period between January 2019 and trial.

Summary of the Bs’ adoption report for Alan

The trial court admitted into evidence a favorable 2017 adoption report for the

Bs that CK Family Services had completed for Alan’s foster placement and adoption.

The Department placed Alan with the Bs the day he was removed from Mother’s

care. At the time of the report, the Bs were in their late thirties; they have two

biological children, who were both under the age of ten. C.B. was a college-educated

stay-at-home father, and J.B. was an employed in the medical field with a substantial

monthly income. The interviewer described their marriage as “stable and loving,” their

family as “loving and affectionate,” and their characters as “compassionate.” The

31 home environment was safe; they lived in a four-bedroom, three-bath home with their

children and a dog. Both Bs had passed criminal and child abuse background checks.

Regarding Alan’s biological family, the report stated that the Bs had maintained

phone contact with his paternal grandmother and that they were “open to . . . have

contact, as long as it is appropriate,” with biological family members to ensure he has

a “familial and cultural connection.” Additionally, it stated the Bs “want[ed] to ensure

they learn and implement [Alan’s] culture into their home and lives due to [his] being

Navajo and Cherokee Indian.” At the time, Alan had never met any of his oldest half

siblings.

CK Family Services updated the report in October 2018 after the Bs became

interested in adopting Y.J. The addendum was not as detailed as the original report

but showed no significant changes.

A.J.

A.J. testified that she lives on the Navajo reservation close to many family

members. Y.J.’s four oldest half siblings live with A.J.’s older sister about twenty-

seven miles from her. A.J. sees Y.J.’s oldest half siblings twice a week, but Y.J. would

see them probably every other day. A.J. has a lot of extended family members who

would help with Y.J.’s care and take care of anything she could not.

A.J. said she would follow any order that Y.J. have no contact with Mother;

A.J. had not heard from Mother for many years.

32 A.J. supplements her income by making and selling crafts, and her four sons

and her daughter help her financially, which is normal for Navajo families on the

reservation. A.J. testified that she would be able to support Y.J. financially.

A.J. did not know much about Alan, but Y.J.’s maternal grandmother had told

her “a little bit.” She did not know about Y.J.’s other children in the DFW area. When

asked, “When you were asked about coming out here to visit [Y.J.], has cost been a

consideration -- has cost been a problem for you to be able to come out here to visit

up until now?,” she answered “No.” [Emphasis added.]

Findings

The trial judge made extensive findings on the record and in written findings of

fact and conclusions of law.

On the record, the trial judge stated that he had applied the Holley factors in

deciding who should be Y.J.’s managing conservator. He ordered that Y.J. be enrolled

in a Navajo language class, which the Navajo Nation had a duty to identify, beginning

as soon as possible and continuing until she turned fourteen. The judge acknowledged

that “[w]hen a person leaves a [n]ation, there is an expectation that you will lose some

of your culture. . . . [A]nd there’s expectation your [descendants] will also slowly lose

some of their culture but that’s part of the decision that we make to immigrate to

other cultures and other countries.” He recognized that Y.J.’s Navajo culture is part of

her identity and that preserving culture and heritage can be a struggle. He stated that

“[t]he goals of ICWA are noble and most often what is best for the children.” As for

33 the dual joint managing conservatorship, he explained, “I’m trying to find that mix to

ensure that we give this child every chance possible to maintain ties with . . . her rich

Navajo history and culture, in the meantime, doing what I feel like is best for the child

at this point.” The judge indicated that “a large factor in this [ruling] was the

relationship that she would have with her biological brother who is the closest sibling

in age to her.”

Acknowledging the evidence about the importance of tribal rituals that occur

when a child reaches certain milestones, the trial court said that there is no way to

plan those and he “certainly wish[ed] there was a way for the Court to plan other

things out to make sure she’s in touch with her heritage and not lose sight of that.”

But the judge went on to say that––without regard to any of the parties’ financial

resources––he thought it was in Y.J.’s best interest to live with her half sibling who

was closest to her in age while maintaining her cultural ties to the Navajo Nation. He

stated, “[T]here was no bad situation for [Y.J].”

The trial court signed findings of fact and conclusions of law consistent with its

verbal findings. Specifically, the trial court found and concluded that “it is in the

child’s best interest to enter into this joint managing conservatorship arrangement to

place her in a loving home with her half sibling who is closest to her in age by several

years, while still ensuring the child’s continued connection to Navajo culture and

family.” The trial court also found and concluded that the Bs would provide Y.J.

“with a stable and loving home environment that gives her the care, nurturance,

34 guidance, and supervision necessary for [her] safety and development” and that it was

in Y.J.’s best interest “to have her primary residence in the same home with her

sibling, [Alan], who lives with [them] as their adopted son.” The trial court further

found that it was in Y.J.’s best interest for A.J. to have “the right of possession . . . for

designated summer, weekend, and holiday periods.” Finally, the trial court concluded

that “the best interest of [Y.J.] provides good cause to place [her] with the [Bs]

pursuant to 25 U.S.C. § 1915(b).”

Best-interest determination without consideration of ICWA

The Bs contend that the trial court abused its discretion under Texas law,

without regard to ICWA’s placement preferences, by naming A.J. a joint managing

conservator and mandating a possession and access schedule akin to parents living

more than one hundred miles apart. Their argument discusses the Holley factors and

places great emphasis on Y.J.’s sibling relationship with Alan.

The nonexhaustive Holley factors include

(A) the [child’s] desires . . . ;

(B) the [child’s] emotional and physical needs[,] . . . now and in the

future;

(C) the emotional and physical danger to the child now and in the

(D) the parental abilities of the individuals seeking custody;

35 (E) the programs available to assist these individuals to promote the

[child’s] best interest . . . ;

(F) the plans for the child by these individuals or[, if applicable,] by

the agency seeking custody;

(G) the stability of the home or proposed placement;

(H) the [parent’s] acts or omissions . . . indicat[ing] that the existing

parent–child relationship is not a proper one; and

(I) any excuse for the [parent’s] acts or omissions . . . .

544 S.W.2d at 371–72 (citations omitted).27 We need not consider (H) and (I) because

whether Y.J. should be returned to her parents is not an issue.

Y.J. was too young to articulate her desires, and the evidence showed that she

had a normal, healthy infant’s response to caregivers and other children. We need not

compare the degree of bonding with Y.J.28 as between the Bs and A.J. because the

evidence showed that Y.J.’s primary bond at the time of trial was with her foster

mother, who had the primary care of and access to Y.J. by virtue of the foster care

placement. There was no evidence that she had any special emotional or physical

27 We employ the Holley factors in reviewing conservatorship orders, in addition to termination orders. See In re R.M., No. 02-18-00004-CV, 2018 WL 2293285, at *5 (Tex. App.––Fort Worth May 21, 2018, no pet.) (mem. op.). 28 If ICWA applies, federal rules implementing it provide that “[a] placement may not depart from the preferences based solely on ordinary bonding or attachment that flowed from time spent in a non-preferred placement that was made in violation of ICWA.” 25 C.F.R. § 23.132(e) (2016).

36 needs that could not be met by either the Bs or A.J. separately, nor was there any

evidence of a particular emotional or physical danger to her other than theoretical

contact with Mother. Both the Bs and A.J. expressed a willingness to protect Y.J.

from harmful contact with Mother.

The evidence showed that both the Bs were excellent parents. There was not

much evidence specific to A.J.’s parenting abilities, but the evidence showed that she

had her own adult children who helped support her and that she maintained close ties

to her family and extended family. There was not much evidence about any programs

available to assist the Bs and A.J. other than that Y.J. would be entitled to health care

on the reservation and would have access to Arizona Medicaid. She would also have

access to an early intervention program and Head Start. The evidence showed that

Navajo culture includes assisting older tribal members with their needs, and A.J.’s

family would help her with child care. There was also evidence that naming the

Department as managing conservator would have facilitated “financial subsidies” for

The Bs wanted to adopt Y.J. She would be raised in a home with continual

daily access to the half sibling that is closest to her in age, in a loving home with two

other children. The Bs intended to facilitate contact with her two half siblings in the

DFW area and expressed a willingness to provide contact with her other half siblings

and family on the reservation and to educate her in Navajo culture. The Navajo

Nation asked only for placement of Y.J. with A.J.; there was no evidence that A.J. had

37 any plans to adopt Y.J. if the child were to be placed with her. But Y.J. would be

immersed in her Navajo culture and heritage, have weekly visits with four of her

oldest half siblings, and have close contact with her extended Navajo family.

The evidence showed that both homes, individually, would be stable choices

for Y.J., and each would fulfill a different primary need: with the Bs, a home with

daily contact with her half sibling closest in age, the opportunity to see other half

siblings living close by (and possibly her half siblings living on the reservation), and

occasional interaction with the Navajo tribe directed by non-Indian parents; and with

A.J., a home without daily sibling interaction but with frequent contact with her four

oldest siblings and extended family and with immersion in Y.J.’s Navajo culture and

heritage (but with possibly little to no contact with her half siblings in Texas).

Considering the Holley factors separately, then, without considering the sibling-

attachment and contact evidence, the evidence is favorable for either the Bs or A.J. to

provide a home for Y.J. But we are reviewing the trial court’s decision to name all

three nonparent joint managing conservators. No evidence supports the trial court’s

decision that Y.J.’s stability and permanence would be best served by the arrangement

ordered. As the Bs note, the standard possession and access provisions generally exist

for when parents––with whom the child already has an existing relationship––divorce

or are not married and the trial court must order custody in a way that maintains an

already existing bond between the child and those two parents. That is not the case

here. And the arrangement seriously undermines the possibility that Y.J. could ever be

38 adopted. See Tex. Fam. Code Ann. § 162.009 (six-month residency requirement),29 §

162.010 (requiring written consent to adoption by “a managing conservator” unless

“the managing conservator” is a petitioner, but not specifically addressing consent

required when a child has more than one––nonaligned––joint managing conservator),

§ 263.3026 (including as only permanency goal after termination by Department,

“adoption of the child by a relative or other suitable individual”). Thus, here, the joint

managing conservator arrangement does little to promote a stable and permanent

solution for Y.J.

Based on the trial judge’s comments, it is clear that he was trying to place Y.J.

where she would develop and enjoy a daily sibling attachment, have the most access

to all of her half siblings, and still maintain her relationship with and access to her

Navajo culture and extended family. 30 But in doing so, the trial judge fashioned a

remedy that seriously undermines Y.J.’s stability and permanence, particularly in her

younger years.31 Not only is establishing a stable, permanent home for a child a

compelling state interest, the need for permanence is a paramount consideration for a

A.J. could not meet this requirement under the current order. 29

30 We also have no quarrel with the trial judge’s suggestion that this could be a proper best-interest consideration under Texas law, regardless of ICWA’s application, especially considering that the record includes expert testimony about the benefit to Y.J. of being a part of her heritage and culture. 31 For example, without stating why it would be in her best interest, the order provides that when Y.J. turns five, she may fly alone between the airport nearest the Bs’ residence and the airport nearest A.J.’s residence.

39 child’s present and future physical and emotional needs. In re J.W., No. 10-18-00344-

CV, 2019 WL 5078678, at *8 (Tex. App.—Waco Oct. 9, 2019, no pet. h.) (mem. op.

on reh’g); see Tex. Fam. Code Ann. § 153.001(a)(2); In re A.B., 412 S.W.3d 588, 609

n.15 (Tex. App.––Fort Worth 2013) (en banc op. on reh’g), aff’d, 437 S.W.3d 498

(Tex. 2014). Accordingly, we hold––without reference to ICWA––that the trial court

abused its discretion by naming the Bs and A.J. the child’s joint managing

conservators with a possession and access schedule akin to parents living more than

100 miles apart.

We sustain the Bs’ fifth issue.

Good cause under ICWA

The trial court likewise abused its discretion in making its alternative good

cause finding under ICWA because the evidence is factually insufficient to support it.

A party seeking to establish good cause for not following ICWA’s placement

preferences for adoptive or preadoptive placement––here, with a member of the

Indian child’s extended family––must bring forth clear and convincing evidence of

good cause. See 25 C.F.R. § 23.132(b) (2016). 32 That good cause must be based on at

32 This standard is set forth in the Bureau of Indian Affairs’ Final Rule, which clarifies the “minimum Federal standards governing implementation of . . . ICWA to ensure that ICWA is applied in all States consistent with the Act’s express language, Congress’s intent in enacting the statute, and to promote the stability and security of Indian tribes and families.” Id. § 23.101 (2016). The Bs do not raise independent constitutional challenges to ICWA and the current version of the Final Rule. Thus, in assuming ICWA’s application for purposes of this part of our analysis, we also presume––without deciding––the constitutionality of the Final Rule.

40 least one of several considerations; here, the two possible considerations are “[t]he

request of one or both of the Indian child’s parents, if they attest that they have

reviewed the placement options, if any, that comply with the order of preference” and

“[t]he presence of a sibling attachment that can be maintained only through a

particular placement.” Id. § 23.132(c)(1), (3).

To determine if evidence is legally sufficient under the clear-and-convincing

standard, we look at all the evidence in the light most favorable to the challenged

finding to determine whether a reasonable factfinder could form a firm belief or

conviction that the finding is true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

Evidence is factually insufficient under the clear-and-convincing standard if, in light of

the entire record, the disputed evidence that a reasonable factfinder could not have

credited in favor of the finding is so significant that a factfinder could not reasonably

have formed a firm belief or conviction that the finding is true. Id.

Mother’s placement preference

In Mother’s first affidavit stating her preference that Y.J. be placed with the Bs,

she averred that she had reviewed the potential placement with the Colorado couple

and preferred the Bs so that Y.J. would be “placed with[] her brother and his adoptive

family rather than with strangers who live several hundred miles away.” A.J. had not

been identified as a potential placement at that time. Although this evidence is legally

sufficient to meet the clear-and-convincing standard, Mother’s affidavit of voluntary

relinquishment––which also stated her preference for Y.J.’s placement with the Bs but

41 which she signed after A.J. had been identified as a potential placement––did not state

that Mother had reviewed A.J. as a potential placement. And Smith testified that

Mother had indicated at one time that she preferred placement with either the Bs or

A.J. Thus, the evidence is factually insufficient under the clear-and-convincing

standard to support the trial court’s finding of good cause based on a parent’s

preference.

Sibling attachment maintainable only with a particular placement

Y.J. has seven half siblings: Alan who lives with the Bs, the four oldest who live

in Arizona on the reservation, and two who live close to the Bs in the DFW area. The

trial court was clearly concerned with how best to foster all of those sibling

attachments and was faced with an incredibly difficult decision as to how to prioritize

the importance of each of those attachments to Y.J.

The evidence showed that Y.J. was the closest in age to Alan, that she had

visited with him, and that Alan had formed an attachment to her. Although Y.J. was

by all accounts a happy infant with no discernable attachment problems––and

therefore could be expected to “light[] up” when around other small children such as

Alan––the evidence of Alan’s attachment to her shows a benefit of that relationship to

Y.J. 33 as she ages. She would also be living in a home with, and have daily interaction

33 The Navajo Nation attempts to minimize this evidence, arguing that preservation of sibling attachments should be a guiding concern only when two siblings had been living together before being removed from a home. We do not

42 with, two nonbiological older siblings. The evidence also shows that the Bs have

cultivated contact with Y.J.’s other two half siblings that do not live in Arizona and

desire to continue that contact. C.B. testified that the Navajo family had not

attempted to contact Alan and that he did not think Y.J. would have much contact

with Alan if she were to be placed with A.J. Although A.J. testified that it had been no

problem to come to Texas up until the time of trial, she had only attended trial and

visited with Y.J. once. There was no evidence she or the family could afford to

maintain cross-country visits with Alan or her other two DFW-area siblings. And Y.J.

would not be living in a home with any of her half siblings in Arizona.

But the evidence also showed that A.J. and Y.J.’s oldest half sibling had visited

with her once before trial and that her close Navajo family was excited at the prospect

of having Y.J. live with A.J. Although the trial court found that the Bs could best

maintain the sibling relationships, it ordered A.J. to pay the cost of Y.J.’s travel to

Arizona after the age of five and to accompany her on all flights during summer

2022. 34 The evidence also showed that even though the oldest half siblings lived about

half an hour from A.J., she saw them frequently and anticipated that Y.J. would see

them every other day. This is in keeping with Smith’s testimony about the importance

agree that the trial court’s consideration of the importance of sibling relationships to a child when making a best-interest determination is so limited. 34 This provision appears to conflict with another provision in the order requiring the Bs to deliver Y.J. to A.J.’s residence, and for A.J. to surrender Y.J. at her residence, for the “four continuous week[]” summer 2022 possession.

43 of family in Navajo culture. Finally, the evidence showed that the Bs wanted to

maintain a relationship between Alan and Y.J. and likely have the financial means to

travel to facilitate visits. Thus, there is conflicting evidence of a sibling attachment that

could be maintained only through a particular placement.

We hold that the evidence regarding sibling attachment conflicts such that the

trial court’s finding that good cause existed to deviate from Section 1915’s placement

preferences is factually insufficient.35 Because the evidence is factually insufficient to

support the trial court’s good cause finding under either of the possible considerations

set forth in the Final Rule, we conclude that the trial court abused its discretion in

making that finding. We thus sustain the Navajo Nation’s fourth issue and overrule

the Bs’ fourth issue.

Conclusion

Having sustained the Navajo Nation’s fourth issue and the Bs’ fifth issue, we

reverse only the part of the trial court’s June 28, 2019 order appointing the Bs and

A.J. joint managing conservators of Y.J., and we remand the case for a new decision

on conservatorship, or adoption, as the case may be. Although we limit remand to the

conservatorship/adoption decision, we do not limit the trial court’s reconsideration of

previously raised legal issues that we have not ruled on, such as ICWA’s

35 Because we determined that the evidence supporting parental consent is legally sufficient, we need not address the legal sufficiency of the sibling-attachment factor.

44 constitutionality, or the trial court’s consideration of new issues or evidence raised

regarding conservatorship.

/s/ Wade Birdwell

Wade Birdwell Justice

Delivered: December 19, 2019