Opinion
01-23-00078-CV
06-06-2023
In re D.D.D., A Child
Trial court: 315th District Court of Harris County No. 2019-04085J
ORDER OF ABATEMENT
APRIL L. FARRIS JUDGE
In this case, the trial court signed an order terminating the parental rights of R.L.H.J. ("Mother") and D.D.D. ("Father") to their minor son, D.D.D. ("David"). Only Mother filed a notice of appeal. Mother and the Department of Family and Protective Services ("the Department" or "DFPS") have filed appellate briefs.
In this order, we use pseudonyms for Mother, Father, and their son to protect their privacy.
The Indian Child Welfare Act ("ICWA") is a federal law that applies in state court when a court knows or has reason to know that an Indian child is involved in a child custody proceeding. See 25 U.S.C. § 1912(a); In re A.W., 590 S.W.3d 68, 71 (Tex. App.-Texarkana 2019, pet. denied); In re J.J.C., 302 S.W.3d 896, 900 (Tex. App.-Waco 2009, no pet.). A "child custody proceeding" includes "any action resulting in the termination of the parent-child relationship." 25 U.S.C. § 1903(1)(ii); In re V.L.R., 507 S.W.3d 788, 792 (Tex. App.-El Paso 2015, no pet.). Pursuant to ICWA, "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify" the parent and the relevant tribal authorities "by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." 25 U.S.C. § 1912(a).
ICWA defines "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." Id. § 1903(4); In re J.J.C., 302 S.W.3d at 900. ICWA does not, however, define what constitutes being a "member" or being "eligible for membership." In re J.J.C., 302 S.W.3d at 900. Instead, each tribe has its own criteria for determining tribal membership. Id.; In re R.R., 294 S.W.3d 213, 217-18 (Tex. App.-Fort Worth 2009, no pet.).
Here, the proceedings began in November 2019 when the Department filed an original petition seeking conservatorship of David and termination of Mother's and Father's parental rights. The trial court signed a "Temporary Order Following Adversary Hearing" on December 16, 2019. Under a heading entitled "Indian Child Welfare Act," the order stated that the trial court "has inquired whether the child's family has Native American heritage and identified any Native American Tribe with which the child may be associated." Handwritten underneath that statement is a notation that "[p]arents denied all Native American heritage."
On July 23, 2020, and again on August 11, 2020, counsel for the Department filed a "Notice of Pending Custody Proceeding Involving Indian Child." This notice was addressed to the Eastern Band of Cherokee Indians, the Cherokee Nation, and the United Keetoowah Band of Cherokee Indians in Oklahoma. The notice was also addressed to federal authorities, including the Southern Plains Regional Director, the Eastern Regional Director, and the Eastern Oklahoma Regional Director of the Bureau of Indian Affairs. The notice reflects that it was sent to the tribal and federal authorities by fax. The appellate record does not contain any documentation reflecting that the notices were sent by certified or registered mail. See 25 U.S.C. § 1912(a) (requiring notice of pending child custody proceeding to be sent to tribal authorities by "registered mail with return receipt requested"); 25 C.F.R. § 23.11(a) (regulation promulgated by Bureau of Indian Affairs requiring notice to be sent by "registered or certified mail with return receipt requested"); 25 C.F.R. § 23.111 (setting out required contents of notice and stating that while notice may be sent via personal service or electronically, this does not replace requirement for notice to be sent by registered or certified mail); In re R.R., 294 S.W.3d at 224-25 (stating that substantial compliance with ICWA's notice provisions "will not suffice" and that "proper notice in compliance with the ICWA and the statutory notice provisions is a prerequisite to a state court's determination of whether to apply the ICWA").
The notice informed the tribal and federal authorities that a child custody proceeding involving David had been filed and that David "is believed to be a member of, or eligible for membership in a federally recognized Indian tribe." The notice identified David and his birthdate; Mother, her birthdate, her address, and her "Tribal Affiliation"; and another woman and her "Tribal Affiliation" listed under a heading entitled "Grandparents or Indian Tribe Members." The notice requested a response from each tribe confirming or denying David's "Indian child status."
The notice also informed tribal and federal authorities that a hearing was scheduled before the trial court via Zoom on September 1, 2020. The appellate record does not reflect whether this hearing occurred or whether any determinations concerning David's Indian child status were made on this date. The appellate record contains no information from the tribal authorities confirming or denying David's Indian child status.
When the Department amended its petition in December 2021, it listed David's Indian Status as "Unknown." The Department filed several "Permanency Reports" with the trial court throughout the pendency of the case, including after the trial court signed the order terminating Mother's parental rights and granting the Department managing conservatorship over David. In each of these reports, the following two boxes under "Native American Child Status" were both checked: "Child's possible American Indian child status reported by [Father], and is yet to be determined," and "Child's American Indian child status denied by Mother." The appellate record contains no written determination by the trial court on David's Indian child status. The decree terminating Mother's and Father's parental rights to David also makes no mention of Indian child status.
The Bureau of Indian Affairs has promulgated guidelines for state courts in Indian child custody proceedings. The guidelines provide "[s]pecific instructions" for "the determination of the status of an alleged Indian child." In re J.J.C., 302 S.W.3d at 900. The guidelines also place the burden on the trial court "to seek verification of the child's status through either the Bureau of Indian Affairs or the child's tribe." Id.; In re R.R., 294 S.W.3d at 219. If there is reason to know that the child is an Indian child but the court does not have sufficient evidence to determine the child's status, the court must:
(1) Confirm, by way of a report, declaration, or testimony included in the record that the agency or other party [seeking termination of parental rights] used due diligence to identify and work with all of the Tribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership); and
(2) Treat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an "Indian child" in this part.25 C.F.R. § 23.107(b); In re S.J.H., 594 S.W.3d 682, 688 (Tex. App.-El Paso 2019, no pet.) (stating that father's testimony that he was member of three tribes and Department's pleadings identifying child as suspected Indian child triggered presumption under ICWA that child was "Indian child" and that "[t]his presumption holds unless and until it is shown that [the child] is not an Indian child in fact").
ICWA "provides a variety of procedural and substantive protections in child custody proceedings involving an Indian child" and "sets out minimum requirements with which a state court must comply before terminating parental rights in a case involving an Indian child." In re R.R., 294 S.W.3d at 217. For example, when ICWA applies, the trial court may not order termination of parental rights "in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child." Id. (citing 25 U.S.C. § 1912(f)). ICWA also provides that the tribe is entitled to notice of a custody proceeding involving an Indian child and has the right to intervene at any stage of the proceeding. Id.; 25 U.S.C. §§ 1911(c), 1912(a). Importantly, if a child custody proceeding violates the provisions of ICWA, the child's parents and the child's tribe "may petition any court of competent jurisdiction to invalidate such action." 25 U.S.C. § 1914; In re R.R., 294 S.W.3d at 225 ("A violation of the ICWA notice provisions may be cause for invalidation of the termination proceedings at some later, distant point in time."); In re J.J.C., 302 S.W.3d at 902 (stating same).
In this case, the Department received information concerning David's possible status as an "Indian child," and this information was sufficient to trigger ICWA's requirements for notification and a determination of David's Indian child status. See In re J.J.C., 302 S.W.3d at 901 (stating that ICWA notice provisions were triggered when Department "discovered information that the children's maternal grandmother was alleged to be a member of the Chippewa Indian Nation"); In re D.C.B., No. 12-21-00175-CV, 2022 WL 399141, at *2 (Tex. App-Tyler Feb. 9, 2022, no pet. h.) (mem. op.) (concluding that ICWA requirements for "notification and determination of Indian status" were triggered when permanency report filed by Department stated that child's "possible American Indian child status" was reported by parents "and is yet to be determined").
Compliance with ICWA's notice and determination provisions was required in this case, but the appellate record does not demonstrate that the required notice was sent in a manner that complies with statutory and regulatory requirements, nor does the record demonstrate that the trial court determined David's Indian child status. We therefore abate this appeal with the following instructions:
(1) The Department must immediately upon receipt of this order send notices to the applicable tribal and federal authorities in compliance with ICWA's statutory notice requirements, see 25 U.S.C. § 1912(a), 25 C.F.R. § 23.11(a), 25 C.F.R. § 23.111;
(2) The trial court shall conduct a hearing no later than June 20, 2023, to determine whether David is an Indian child under ICWA;
(3) The trial court shall make written findings as to whether David is an Indian child;
(4) The trial court clerk shall file a supplemental clerk's record containing the trial court's findings with this Court no later than June 23, 2023; and
(5) The court reporter shall file a supplemental reporter's record of the trial court's hearing with this Court no later than June 27, 2023.
This is a priority appeal, and this Court strives to comply with the Legislature's and the Texas Supreme Court's directives in that regard. See Tex. Fam. Code § 263.405(c); Tex. R. Jud. Admin. 6.2(a) (stating that in appeal of suit for termination of parent-child relationship, appellate court should, as far as reasonably possible, ensure that appeal is brought to final disposition within 180 days of date notice of appeal is filed).
The appeal is removed from the Court's June 13, 2023 submission docket. The appeal will be reinstated in this Court following the filing of the supplemental clerk's record containing the trial court's findings.
It is so ORDERED.