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requiring strict compliance with ICWA in adoption situations because ICWA permits adoption to later be invalidated if procedures were not followed
Summary of this case from M. Y. v. Tex. Dep't of Family & Protective Servs.Opinion
NO. 12-15-00192-CV
02-29-2016
IN THE INTEREST OF D. D., A CHILD
APPEAL FROM THE 392ND JUDICIAL DISTRICT COURT HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION AND ABATEMENT ORDER
A.J. appeals the termination of her parental rights. On appeal, she presents two issues. We abate this appeal and remand the case to the trial court with instructions.
BACKGROUND
A.J. is the mother and D.C.D. is the father of D.D., born December 20, 2013. On January 31, 2014, the Department of Family and Protective Services (the Department) filed an original petition for protection of D.D., for conservatorship, and for termination of A.J.'s and D.C.D.'s parental rights. The Department was appointed temporary managing conservator of the child, and both parents were appointed temporary possessory conservators with limited rights and duties.
D.C.D. has appealed the termination of his parental rights to D.D. D.C.D.'s appellate counsel concluded that the appeal is frivolous and filed an Anders brief. We address D.C.D.'s appeal by separate memorandum opinion and abatement order.
At the conclusion of the trial on the merits, the jury found, by clear and convincing evidence, that A.J.'s parental rights should be terminated. Thereafter, the trial court found, by clear and convincing evidence, that A.J. had engaged in one or more of the acts or omissions necessary to support termination of her parental rights under subsections (D), (E), and (O) of Texas Family Code Section 161.001(b)(1). The trial court also found that termination of the parent-child relationship between A.J. and D.D. is in the child's best interest. Based on these findings, the trial court ordered that the parent-child relationship between A.J. and D.D. be terminated. This appeal followed.
A.J. and D.C.D. had separate jury trials regarding termination of their parental rights.
TERMINATION OF PARENTAL RIGHTS
Involuntary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.-Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.-Texarkana 1995, writ denied). Because a termination action "permanently sunders" the bonds between a parent and child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.-El Paso 1998, no pet.).
Section 161.001 of the family code permits a court to order termination of parental rights if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2015); In re J.M.T., 39 S.W.3d 234, 237 (Tex. App.-Waco 1999, no pet.). First, the parent must have engaged in any one of the acts or omissions itemized in the second subsection of the statute. TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2015); Green v. Tex. Dep't of Protective & Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.-El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2015); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and convincing evidence, and proof of one element does not alleviate the petitioner's burden of proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.
The clear and convincing standard for termination of parental rights is both constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911 S.W.2d at 439. Clear and convincing evidence means "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. FAM. CODE ANN. § 101.007 (West 2014). The burden of proof is upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.
STANDARD OF REVIEW
When confronted with both a legal and factual sufficiency challenge, an appellate court must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.-Amarillo 1999, no pet.). In conducting a legal sufficiency review, we must look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible. Id.
The appropriate standard for reviewing a factual sufficiency challenge to the termination findings is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the petitioner's allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In determining whether the fact finder has met this standard, an appellate court considers all the evidence in the record, both that in support of and contrary to the trial court's findings. Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.-Houston [1st Dist.] 1997, pet. denied).
TERMINATION OF A.J.'S PARENTAL RIGHTS
As part of her first issue, A.J. contends the evidence is legally and factually insufficient to terminate her parental rights pursuant to Texas Family Code Section 161.001(b)(1), subsection (E). Applicable Law
The court may order termination of the parent-child relationship if it finds by clear and convincing evidence that the parent has engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangers the physical or emotional well being of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (West Supp. 2015). The specific danger to the child's well being need not be established as an independent proposition, but may instead be inferred from parental misconduct. Tex. Dep't of Human Svcs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.J., 911 S.W.2d at 440. Scienter is not required for an appellant's own acts under Section 161.001(b)(1)(E), although it is required when a parent places her child with others who engage in endangering acts. In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Finally, the need for permanence is a paramount consideration for the child's present and future physical and emotional needs. In re N.K., 99 S.W.3d 295, 301 n.9 (Tex. App.—Texarkana 2003, no pet.); In re M.D.S., 1 S.W.3d at 200.
"Endanger" means to expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533; In re D.M., 58 S.W.3d 801, 811 (Tex. App.—Fort Worth 2001, no pet.). It is not necessary that the conduct be directed at the child or that the child actually suffers injury. Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d at 440. Subsection (E) requires us to look at the parent's conduct alone, including actions, omissions, or the parent's failure to act. In re D.J., 100 S.W.3d 658, 662 (Tex. App.—Dallas 2003, pet. denied); In re D.M., 58 S.W.3d at 811. Termination under subsection (E) must be based on more than a single act or omission. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied). A voluntary, deliberate, and conscious "course of conduct" by the parent that endangers the child's physical and emotional well being is required. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634.
A parent's use of narcotics and its effect on her ability to parent may qualify as an endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). A parent's repeated engagement in illegal drug activity or repeatedly associating with known criminals after agreeing not to do so in a service plan for reunification with her child may be considered in an analysis of whether clear and convincing proof exists of voluntary, deliberate, and conscious conduct that endangered the well being of her child. See In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.). As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well being of a child. In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d at 739.
A parent's failure to remove herself and her child from a violent relationship and exposing the child to an abusive partner endangers the physical or emotional wellbeing of the child. In re I.G., 383 S.W.3d 763, 770 (Tex. App.—Amarillo 2012, no pet.); In re M.V., 343 S.W.3d 543, 547 (Tex. App.—Dallas 2011, no pet.); In re M.N.G., 147 S.W.3d 521, 538-39 (Tex. App.—Fort Worth 2004, pet. denied). The Evidence
At trial, A.J. testified that she was nineteen years old and D.C.D. was forty-two years old when D.D. was born. She and D.C.D. were living in a mobile home and continued to live there after D.D. was born. According to A.J., the mobile home was "nasty" and a "danger zone." The mobile home had a "dangerous" heater and they used an open oven for heat. She, D.C.D., and D.D. slept in front of the open oven, and A.J. admitted that this was dangerous.
A.J. testified that D.C.D. treated D.D.'s circumcision by administering rubbing alcohol to the wound, contrary to the physician's instructions. D.D. screamed when this occurred, and A.J. knew this meant he was experiencing burning and stinging. A.J. said D.C.D. treated D.D.'s constipation by putting slivers of soap and warm, soapy water in D.D.'s rectum. She admitted that D.C.D.'s actions were "criminal" and could have killed the baby. She testified that she tried to intervene in each instance, but D.C.D. told her to shut up and mind her own business. A.J. testified that she and D.C.D. had violent relationship. She said that D.C.D. tried to cut off her leg to stop her from leaving him, tried to "ram" her head into a screw in a wall, choked her, and held both a gun and a sawed-off shotgun to her head. D.C.D. threatened to put a bomb under her mother's vehicle and "blow [her] family up."
The Department received an intake regarding A.J. and D.C.D. shortly after D.D. was born. The intake included allegations of neglectful supervision, physical abuse, and physical neglect. A worker from the Department requested that they submit to drug testing. D.C.D. tested positive, but A.J. tested negative. The caseworker put a safety plan in place, stating that there was to be no more domestic violence. Holly Farmer, a Department investigations worker, met the parents at a January 2014 doctor's appointment. The baby was small, his color was a little "off," and he was losing, not gaining, weight. Farmer returned with them to the mobile home and described it as "run-down," small, cramped, and chilly. She was concerned that A.J. and D.C.D. were not mixing the baby's formula correctly, and they told her they were unsure of how to properly mix it.
Farmer was also concerned that domestic violence was continuing because she saw bruises on A.J.'s arm. A.J. admitted the bruises were from D.C.D. and that she did not feel safe. Farmer took A.J. and D.D. to A.J.'s grandmother's house. She also initiated a safety plan that D.C.D. and A.J.'s mother were not to have unsupervised contact with D.D. Farmer stated that A.J.'s mother, who was also living with A.J.'s grandmother, had significant Department history and a pending criminal charge.
Later, Farmer removed D.D. from A.J.'s care because she believed the baby was in immediate danger. According to Farmer, A.J. admitted that she invited D.C.D. to the hospital when she was undergoing a minor surgery because she did not want to be alone and wanted a family. She also believed that A.J. had allowed unsupervised contact between D.D., D.C.D., and her mother. A.J. submitted to random drug testing and tested positive in February 2014, positive in November 2014, and negative in March 2015. She did not comply with three requests to submit to drug testing from March 2015 to the time of trial.
Two of A.J.'s caseworkers testified that during the case, a man appeared to be in A.J.'s house when they conducted home visits. This man was identified as being a registered sex offender. Likewise, D.C.D. was a convicted sex offender. Before her relationship with D.C.D., A.J. had been married to a man that was dangerous, beat her, and was in jail for "selling pills." D.C.D. was in federal custody for building pipe bombs.
A.J. stated that she was old enough to know what was a safe environment for D.D. and denied ever putting D.D. in "harm's way." One of her caseworkers believed that D.D. would be in danger if he were returned to A.J. The CASA volunteer did not believe that D.D. should be returned to A.J. because she had several failed drug tests, and had relationships with sex offenders and wife beaters. Conclusion
Viewing the evidence in the light most favorable to the finding, the jury could have determined that A.J. could not protect D.D. and demonstrated an inability to put D.D.'s needs before her own. Therefore, the jury could have concluded that A.J. engaged in conduct that endangered D.D.'s physical or emotional well being. See In re I.G., 383 S.W.3d at 770; In re T.N., 180 S.W.3d at 383.
A.J. denied abusing D.D. or ever putting him in "harm's way." But this evidence is not so significant that a reasonable trier of fact could not have reconciled the evidence in favor of its finding and formed a firm belief or conviction that A.J. engaged in conduct that endangered his physical or emotional well being. Therefore, we hold that the evidence is legally and factually sufficient to support termination of A.J.'s parental rights under Section 161.001(b)(1)(E). Accordingly, we overrule A.J.'s first issue regarding Section 161.001(b)(1)(E).
Because we have concluded that the evidence is legally and factually sufficient to support termination of A.J.'s parental rights under subsection (b)(1)(E), we need not address her first issue regarding subsections (b)(1)(D) and (b)(1)(O). See TEX. FAM. CODE ANN. § 161.001(b)(1); TEX. R. APP. P. 47.1. --------
BEST INTEREST OF THE CHILD
In A.J.'s second issue, she contends that the evidence is legally and factually insufficient to support a finding that termination of her parental rights is in the best interest of the child. In determining the best interest of the child, a number of factors have been considered, including (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
This list is not exhaustive, but simply indicates considerations that have been or could be pertinent. Id. However, the best interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors. In re D.M., 58 S.W.3d at 814. The Holley test focuses on the best interest of the child, not the parent's best interest. Dupree v. Texas Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). We apply the Holley factors below. The Evidence
At trial, the evidence showed that A.J. failed to demonstrate that she could adequately care for D.D. She did not have a bed, clothes, or toys for him. She was unable to tell the court how many scoops of formula she should put into his bottles, and could not accurately determine the proper amount of a hypothetical prescription medication that she should give D.D. Farmer said that A.J. had never taken care of D.D. alone. D.D. had been diagnosed with reactive airway disease, or a precursor to asthma, and was on medication. A.J. admitted that she smoked inside her house even though she was aware that smoke could harm D.D.
A.J. did not demonstrate adequate parenting skills as late as May 2015. One caseworker stated that A.J. failed to interact with D.D., became agitated and upset with him, cursed at D.D. in Spanish, and did not use any of the educational toys provided by the Department at her visitations. The CASA volunteer stated that A.J. behaved more as a babysitter than a mother, and that he did not see any bonding between mother and child. A.J. failed to attend all of her visitations, sometimes missing a month or two of visitations at a time.
Additionally, A.J. also failed to demonstrate that she could provide D.D. with a safe and stable environment. In December 2014, she moved into a rented home with her mother, and two caseworkers visited A.J.'s home. DeAnn Stewart, a courtesy caseworker with the Department for Nacogdoches County, stated that in March 2015, A.J. had a cat, three dogs, and approximately twelve puppies inside the house. The house had a "very strong, potent odor" of urine. Stewart described some safety issues with the house such a ripped screen door and a reptile cage on the front porch that contained feces and a mosquito infested bowl.
Emalie Wall, a Department caseworker, visited A.J.'s home in May and June 2015. She noted some safety concerns including a lack of underskirting around the house, windows without screens, a living room heater that was accessible to a child, and knives within reach of a toddler. A.J. stated that she had two dogs and one cat. Wall said that the house had a "very strong odor" of dog feces, cat urine, and tobacco. She testified that feces covered the wall and floor of the room that A.J. said would be D.D.'s bedroom. Wall testified that on her second visit, the smell of feces, urine, and cigarette smoke was not as strong. And D.D.'s room did not have feces on the wall. When she visited, Wall saw a man leaving A.J.'s home sited, and he appeared to be getting dressed as he left. A.J. told Wall that the man worked for the landlord. However, Wall identified the man as a person who was a registered sex offender. A.J. introduced pictures of her house at trial, and Wall stated that these pictures did not accurately depict A.J.'s house in June 2015.
A.J. also appeared to lack financial resources to care for a child. She received disability payments and some money from her mother's social security check. A.J. was unemployed, but hoped to get a job at a chicken factory. She did not have a vehicle or a driver's license and would have to ask her family to provide transportation.
Moreover, A.J. failed to complete her family plan of service. She did not complete parenting classes or one-on-one parenting with her caseworkers, complete a drug abuse assessment, or participate in a domestic violence victim group program. And she did not follow the recommendations of the psychological assessment, submit to every random drug test requested by the Department, or attend counseling, including substance abuse counseling. Her preferred counselor failed to provide the Department her notes or confirm that A.J. attended counseling. At trial, A.J. stated that she had an appointment to see a Department-approved counselor and planned to attend parenting classes.
Robert M. Sperry, Jr., Ph.D. completed a psychological evaluation of A.J. He stated that she had a "pretty low" intelligence quotient and had trouble with reading comprehension. Sperry believed that A.J. would have problems with frustration tolerance, the ability to do complex tasks, organization, and impulsivity. Her child abuse potential inventory test was invalidated, showing that she had a rigid attitude toward parenting. His recommendations included parenting classes and supervised visitation. Sperry was concerned about A.J.'s ability to care for a baby and said he would not trust her to care for his grandchild.
A.J. reported some mental health issues including diagnoses of depression, bipolar disorder, oppositional defiant disorder, and attention deficit hyperactivity disorder. She testified that she was ready to parent D.D., and hoped that he went to school and became "somebody." The Department's plans for D.D. were for him to be adopted. Conclusion
Viewing the above evidence relating to the Holley factors in the light most favorable to the finding, we hold that a reasonable fact finder could have formed a firm belief or conviction that termination of A.J.'s parental rights is in the best interest of the child.
A.J. stated in her brief that this court "need not be concerned of future threats of violence on her or on her child" because D.C.D. is in prison. Moreover, she asserts that she was not responsible for her counselor's failure to communicate with the Department, that she was able to take care of D.D., that she had been protecting D.D., and that she was a victim of domestic violence. But this evidence is not so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its finding and formed a firm belief or conviction that termination of A.J.'s parental rights is in the best interest of the child. Therefore, we hold that the evidence is legally and factually sufficient to support the jury's finding that termination of A.J.'s parental rights is in the best interest of the child. Accordingly, we overrule A.J.'s second issue regarding the best interest of the child.
INDIAN CHILD WELFARE ACT
In our review of the record, we observed that in notes taken during a family group conference on April 3, 2014, A.J. told a Department caseworker that her father had "Indian Heritage," and D.C.D. stated that his father was Cherokee and Comanche. In a permanency plan and progress report from the Department to the trial court dated July 17, 2014, the "box" indicating the child's Native American status was checked. The report explained the "Child's possible American Indian child status reported by [A.J.]; [D.C.D.], and is yet to be determined. Neither parent [has] provided a tribe name or proof of affiliation." The permanency plan and progress reports to the trial court dated August 31, 2014, and February 27, 2015, repeated the language quoted above. The record does not show that the child's Native American status was determined prior to trial, and the order of termination makes no reference to the issue.
Congress passed the Indian Child Welfare Act (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, 109 S. Ct. 1597, 1599-1600, 104 L. Ed. 2d 29 (1989); see also In re W.D.H., 43 S.W.3d 30, 34 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). 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. 25 U.S.C.A. § 1912(a) (West, Lexis current through PL 114-115, approved Dec. 28, 2015); In re R.R., Jr., 294 S.W.3d 213, 217 (Tex. App.—Fort Worth 2009, no pet.). "Child custody proceeding" means, and includes, foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. 25 U.S.C.A. § 1903(1) (West, Lexis current through PL114-115, approved Dec. 28, 2015). 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." 25 U.S.C.A. § 1903(4) (West, Lexis current through PL 114-115, approved Dec. 28, 2015). The ICWA, however, does not define what constitutes being a "member" or "being eligible for membership." See 25 U.S.C.A. § 1903(4). Each tribe has its own criteria for determining tribe membership. See In re R.R., 294 S.W.3d at 217-18.
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. See BUREAU OF INDIAN AFFAIRS GUIDELINES FOR STATE COURTS; INDIAN CHILD CUSTODY PROCEEDINGS (BIA GUIDELINES), 44 FED. REG. 67,584 (Nov. 26, 1979). The Guidelines state that "[p]roceedings 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." 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. See 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. BIA GUIDELINES, 44 FED. REG. at 67,586 (stating that "the court shall seek verification of the child's status"). Further, the Guidelines provide that "[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 . . . . (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.
Under the ICWA, an Indian tribe is entitled to notice of a custody proceeding involving an Indian child. See 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." 25 C.F.R. § 23.11 (Lexis current through Feb. 24, 2016 issue). Section 23.11 also requires that the notice be sent to the "appropriate Regional Director" and the Secretary of the Interior. Id. § 23.11(a), (b), (f). Upon receiving the notice, the Secretary of the Interior or his designee is obliged 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. § 23.11(f).
A violation of the ICWA notice provisions may be cause for invalidation of the termination proceedings at some later, distant point in time. See 25 U.S.C.A. § 1914 (West, Lexis current through PL 114-115, approved Dec. 28, 2015) (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"); see also In re W.D.H., 43 S.W.3d at 38-39 (recognizing parent of Indian child has standing to challenge adequacy of notice even though tribe declined to join suit). Consequently, because the termination proceeding here will likely result ultimately in the adoption of D.D., strict compliance with the notice provisions of the ICWA and the regulations implementing it in the Code of Federal Regulations is especially important, or "the State could offer prospective adoptive parents no assurance this termination and a subsequent adoption could not be invalidated." See In re J.W., 498 N.W.2d 417, 419-22 (Iowa Ct. App. 1993) (disapproved on other grounds by In re N.N.E., 752 N.E.2d 1 (Iowa 2008)) (recognizing that notice provisions of the ICWA are to be strictly construed and reversing order terminating parental rights because of inadequate notice and remanding for new hearing after proper notice).
As noted above, A.J. stated during a family group conference that her father had "Indian Heritage," and D.C.D. stated that the child's paternal grandfather was of "Cherokee and Comanche" descent. Moreover, three permanency plan and progress reports indicated that D.D.'s mother and father reported that the child was of possible "American Indian status." This was information discovered by a state licensed agency involved in child protection services that suggested D.D. may be an Indian child, and it was sufficient to trigger the ICWA's requirements for notification and determination of Indian status. See In re J.J.C., 302 S.W.3d at 901 (holding that the trial court had reason to believe that the children were Indian because DFPS discovered that their maternal grandmother was alleged to be a member of the Chippewa Indian Nation); In re R.R., 294 S.W.3d at 222 (holding that the trial court had reason to believe the children were Indian when mother testified that her grandmother was a registered member of the Kiowa Indian Nation). Therefore, the trial court was obligated to notify the Indian tribe or tribes for an inquiry into the child's Indian status. See In re R.R., 294 S.W.3d at 219 (noting that the Guidelines' listed circumstances "shall trigger an inquiry by the court and petitioners"). The notice provisions of the ICWA are mandatory. See BIA GUIDELINES, 44 FED. REG. at 67,586 (providing that when a state court has reason to believe a child involved in a child custody proceeding is an Indian, the court shall seek verification of the child's status from either the BIA or the child's tribe).
CONCLUSION
Because the inquiry required by ICWA is necessary here, we abate this appeal and remand the case to the trial court. Proper notice that complies with ICWA's notice requisites shall be provided, and then the trial court shall conduct a hearing to determine whether D.D. is an Indian child under the ICWA. See TEX. R. APP. P. 44.4 (providing that appellate court shall not reverse or affirm judgment if trial court can correct erroneous failure to act, and authorizing appellate court to direct trial court to correct erroneous failure to act and to then proceed as if erroneous failure to act had not occurred). The trial court shall cause a record of the proceedings to be prepared and make appropriate findings as to whether D.D. is an Indian child. The trial court also shall cause a supplemental clerk's record (including any orders and findings resulting from the ICWA hearing) to be filed with the clerk of this court. After we receive the supplemental clerk's record, this appeal will be reinstated.
If, after proper notice and hearing, the trial court has determined that D.D. is not an Indian child, we will issue a judgment affirming the trial court's termination judgment. See TEX. R. APP. P. 43.2(a). If, after notice and hearing, the trial court determines that D.D. is an Indian child, we will issue a judgment reversing the trial court's termination judgment, and remanding the cause to the trial court for a new trial applying the ICWA. See TEX. R. APP. P. 43.2(d); R.R., Jr., 294 S.W.3d at 238.
JAMES T. WORTHEN
Chief Justice Opinion delivered February 29, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
ABATEMENT ORDER Appeal from the 392nd District Court of Henderson County, Texas (Tr.Ct.No. 2014B-0084)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, because it is the opinion of this Court that there was error in the trial court below, it is ORDERED, ADJUDGED and DECREED by this court that this appeal be abated and the cause remanded to the trial court with instructions to give proper notification pursuant to the ICWA and determine D.D.'s status as defined by ICWA and for further proceedings in accordance with this opinion; and that this decision be certified to the court below for observance.
It is THEREFORE ORDERED that the appeal be abated and administratively removed from this court's docket until the supplemental clerk's record containing the trial court's order and findings is filed with the clerk of this court.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.