Opinion
01-24-00817-CV
12-17-2024
In the Interest of H.M.Q., a Child
313th District Court of Harris County Trial court case number: 2023-02039J
ORDER OF ABATEMENT
GORDON GOODMAN JUDGE
Background
On October 7, 2024, the trial court signed a final decree terminating the parental rights of the father (J.Q.) and the mother (S.E.R.) as to their daughter (H.M.Q.). Both have appealed.
On October 31, 2024, Child Protective Services filed a Child's Plan of Service in the trial court. On page 3 of this document (which was filed as part of the clerk's record: CR 260), there is a section concerning Initial Family/Genetic History. In relevant part, this section states:
"[H.M.Q.] is of Latin heritage and has suspected Native American heritage on both parents' side of the family, reported by mother, father, maternal grandmother, and maternal grandfather. The Native American heritage comes from her maternal great grandmother's side."
Indian Child Welfare Act
The Indian Child Welfare Act is a federal law that applies in state court when a court knows or has reason to know 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.). "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).
The Act 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. But the Act does not 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.).
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 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 father's testimony that he was member of three tribes and Department's pleadings identifying child as suspected Indian child triggered the Act's presumption 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").
The Act "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 the Act 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)). The Act 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 the Act, 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 Child's Plan of Service indicates that Child Protective Services has received information concerning H.M.Q.'s possible status as an "Indian child," and this information is sufficient to trigger the Act's requirements for notification and a determination of H.M.Q.'s Indian child status. See In re J.J.C., 302 S.W.3d at 901 (stating that the Act's 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.) (mem. op.) (concluding that the Act's 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").
Abatement and Instructions
Compliance with the Act's notice and determination provisions was required in this case, but the appellate record does not show the required notice was sent in a manner that complies with statutory and regulatory requirements, nor does the record show that the trial court determined H.M.Q.'s Indian child status. We therefore ABATE this appeal with the following instructions:
(1) The Department of Family and Protective Services must immediately upon receipt of this order send notices to the applicable tribal and federal authorities in compliance with the Indian Child Welfare Act'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 January 3, 2025, to determine whether H.M.Q. is an Indian child under Indian Child Welfare Act;
(3) The trial court shall make written findings as to whether H.M.Q. 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 January 10, 2025; and
(5) The court reporter shall file a supplemental reporter's record of the trial court's hearing with this Court no later than January 17, 2025.[*]
The appeal is abated, treated as a closed case, and removed from this Court's active 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.
[*] Regarding these deadlines, 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).