in the Interest of D. C. B., a Child ( 2022 )

NO. 12-21-00175-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 349TH
IN THE INTEREST OF D.C.B.,
§ JUDICIAL DISTRICT COURT
A CHILD
§ HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
C.J.H. appeals the termination of her parental rights. In one issue, she argues that the
trial court erred in failing to comply with the Indian Child Welfare Act (ICWA). We affirm.
BACKGROUND
C.J.H. is the mother and L.A.B., Jr. 1 is the father of D.C.B. On November 12, 2019, the
Department of Family and Protective Services (the Department) filed an original petition for
protection of D.C.B., for conservatorship, and for termination of C.J.H.’s and L.A.B., Jr.’s
parental rights. The Department was appointed temporary managing conservator of the child,
and C.J.H. and L.A.B., Jr. were allowed limited access to and possession of the child.
At the conclusion of a jury trial on the merits, the trial court found, by clear and
convincing evidence, that C.J.H. engaged in one or more of the acts or omissions necessary to
support termination of her parental rights under subsections (D), (E), (N), (O), and (P) of Texas
Family Code Section 161.001(b)(1). The trial court also found that termination of the parent-
child relationship between C.J.H. and D.C.B. is in the child’s best interest. Based on these
1
On February 25, 2020, L.A.B., Jr. was adjudicated as the father of D.C.B., and a parent-child relationship
was established between L.A.B., Jr. and D.C.B. On April 19, 2021, L.A.B., Jr. signed an affidavit of voluntary
relinquishment of parental rights to D.C.B. Consequently, the trial court found, by clear and convincing evidence,
that L.A.B., Jr. executed before or after the suit was filed an unrevoked or irrevocable affidavit of relinquishment to
D.C.B. and found that termination of the parent-child relationship between L.A.B., Jr. and D.C.B. was in the child’s
best interest. The trial court ordered that the parent-child relationship between L.A.B., Jr. and D.C.B. be terminated.
L.A.B., Jr. is not a party to this appeal.
findings, the trial court ordered that the parent-child relationship between C.J.H. and D.C.B. be
terminated. This appeal followed.
INDIAN CHILD WELFARE ACT
In her sole issue, C.J.H. argues the trial court erred by failing to comply with the
requirements of the ICWA. Specifically, she contends that the Department failed to send notices
to the appropriate regional directors and the Secretary of the Interior, notify the Cherokee Nation,
and determine whether D.C.B. is an Indian child under the ICWA.
Applicable Law
Congress passed the ICWA 2 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)
(Westlaw current through PL 117-80); 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) (Westlaw current through PL 117-80). “Foster care placement” means any action
removing an Indian child from its parent or Indian custodian for temporary placement in a foster
home or institution or the home of a guardian or conservator where the parent or Indian
custodian cannot have the child returned upon demand, but where parental rights have not been
terminated. Id. § 1903(1)(i). An Indian child is defined by the ICWA as an “unmarried person
who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian tribe.” Id.
2
In Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019), the Fifth Circuit reversed the federal district
court’s ruling that declared provisions of ICWA and the 2016 administrative rule implementing it unconstitutional.
Id. at 416. The Fifth Circuit found that ICWA was constitutional and, therefore, the 2016 administrative rule
implementing ICWA was valid. Id. at 441. On November 7, 2019, the Fifth Circuit granted rehearing en banc. See
Brackeen v. Bernhardt, 942 F.3d 287 (5th Cir. 2019).
2
§ 1903(4). The ICWA, however, does not define what constitutes being a “member” or “being
eligible for membership.” See id. § 1903(4). Each tribe has its own criteria for determining tribe
membership. See In re R.R., Jr., 294 S.W.3d at 217-18.
The Bureau of Indian Affairs created guidelines for state courts to use in Indian child
welfare proceedings implementing the ICWA. See BUREAU OF INDIAN AFFAIRS GUIDELINES FOR
STATE COURTS AND AGENCIES IN INDIAN CHILD CUSTODY PROCEEDINGS, 80 FED. REG. 10146-02
(Feb. 25, 2015). 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.). “State courts, in every child custody proceeding, must ask whether the child is or
could be an Indian child and conduct an investigation into whether the child is an Indian child.”
BIA GUIDELINES, 80 FED. REG. at 10152. Further, the Guidelines provide that “[a]n agency or
court has reason to believe a child involved in a child custody proceeding is an Indian child if:
(1) Any party to the proceeding ... informs the agency or court that the child is an Indian child
[or] (2) Any agency involved in child protection services or family support has discovered
information suggesting 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 (Westlaw current through Feb. 3, 2022 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), (c). Upon receiving the notice, the Secretary of the
Interior 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(c). A violation of the ICWA
notice provisions may be cause for invalidation of custody or termination proceedings at some
later, distant point in time. See 25 U.S.C.A. § 1914 (Westlaw current through PL 117-80)
(providing that “[a]ny Indian child who is the subject of any action for foster care placement or
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 38-9 (recognizing parent of
3
Indian child has standing to challenge adequacy of notice even though tribe declined to join suit).
Analysis
In the current case, on February 10, 2020, in the permanency report to the trial court, the
Department stated that D.C.B.’s “possible American Indian child status [was] reported by
[L.A.B., Jr.] and [C.J.H.], and is yet to be determined.” This was information discovered by a
state licensed agency involved in child protection services that suggested D.C.B. 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 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., Jr., 294
S.W.3d at 222-26 (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., Jr., 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, 80 FED. REG. at 10151-10154
(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).
In this case, on March 4, 2020, the Department sent a notice to the Bureau of Indian
Affairs that an involuntary child custody proceeding was pending regarding D.C.B. Along with
the pertinent family tree and genogram information, the ICWA notice was also sent certified
mail, return receipt requested to the following: Secretary of the Interior, ICWA; Eastern
Oklahoma Regional Director; Eastern Regional Director; Southwest Regional Director; Southern
Plains Regional Director; Mescalero Apache; Jicarilla Apache Nation; Apache Tribe of
Oklahoma; Cherokee Nation of Oklahoma; Eastern Band of Cherokee Indians; United
Keetoowah Band of Cherokee Indians; Mississippi Band of Choctaw Indians; and The Choctaw
Nation of Oklahoma. In summary, the Department sent the ICWA notice to the BIA, the
Secretary of the Interior, four regional directors, and eight tribes or nations. See 25 C.F.R.
§ 23.11.
Between March and September 2020, the Mississippi Band of Choctaw Indians and the
4
Jicarillo Apache Nation determined that D.C.B. was not eligible for enrollment with the tribe,
and the Cherokee Nation of Oklahoma determined that D.C.B. was not an “Indian child” in
relation to the Cherokee Nation. During the jury trial, C.J.H. testified that she has Native
American history, specifically Cherokee and Choctaw. However, the next day, she testified that
she is not a member of any Native American tribe because she did not have enough “native
blood” to be a member. Nor is she or her parents registered with any Native American tribe.
She believed she told the Department that there was Native American blood on “both parts,”
possibly meaning herself and D.C.B.’s father. She could not recall telling, or did not believe that
she told, the California child welfare workers that she did not have any Native American history.
Ashley Hardin, a conservatorship specialist with the Department, testified that during the initial
adversary hearing, C.J.H. said nothing to her or the trial court about having Native American
heritage. However, Hardin stated that C.J.H. later claimed Native American heritage.
On November 9, 2021, the trial court found that proper notice was sent to the tribes
identified by the parents pursuant to 25 U.S.C.A. § 1912 and 25 C.F.R. § 23.11. Further, the
evidence showed that the child, D.C.B., was not eligible for membership in those tribes. The trial
court found that the child, D.C.B., is not an Indian child within the meaning of 25 U.S.C.A.
§ 1903. Because the Department sent proper notices regarding the child custody proceeding
regarding D.C.B. to the BIA, Secretary of the Interior, regional directors, and appropriate tribes
or nations, and the trial court found that D.C.B. was not an Indian child, the trial court complied
with the ICWA requirements. Accordingly, we overrule C.J.H.’s sole issue. 3
DISPOSITION
Having overruled C.J.H.’s sole issue, we affirm the judgment of the trial court.
JAMES T. WORTHEN
Chief Justice
Opinion delivered February 9, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
We note that C.J.H. does not dispute the termination of her parental rights to D.C.B.
5
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 9, 2022
NO. 12-21-00175-CV
IN THE INTEREST OF D.C.B., A CHILD
Appeal from the 349th District Court
of Houston County, Texas (Tr.Ct.No. 19-0190)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.