In the Interest of W.D.H. , 2001 Tex. App. LEXIS 981 ( 2001 )

My colleagues competently and accurately describe the predominance of the Indian Child Welfare Act over certain standards of the Texas Family Code. However, I would more narrowly construe the federal preemption in accordance with, and because of, the in pari materia doctrine. When two statutes address the same matter or subject, they should be construed, to the extent possible, in harmony. Findlay v. State, 9 S.W.3d 397, 399 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Click v. Tyra,867 S.W.2d 406, 407 (Tex.App.-Houston [14th Dist.] 1993, orig. proceeding).

The courts and practitioners cannot escape the majority's studied conclusion that the Indian Child Welfare Act requires-for involuntary termination of parental rights (1) a determination beyond a reasonable doubt that (2) the continued custody of the child is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(f). Similarly, the courts and practitioners must be alerted to other provisions of the Act requiring, for example, (3) expert testimony concerning the serious emotional or physical damage to the child. Id.;Dody-Jabbarr v. Dallas County Child Protective Serv.,19 S.W.3d 870, 877 (Tex.App.-Dallas 2000, pet. denied). However, I would not hold, as does the majority, that it was error for the trial court to make findings under separate Texas statutory grounds or that (all) Family Code provisions, are in conflict with the ICWA.

Clearly, it is sufficient for us to hold that the Indian Child Welfare Act heightened standard of serious emotional or physical damage, proven beyond a reasonable doubt, trumps the lesser Family Code standard of "best interests of the child" proven by clear and convincing evidence. But for this court to hold that a factfinder could not ever conclude that indefinite imprisonment (over two years to life without parole or even capital punishment), and inability to care for a child could never meet the heightened Indian standard is incorrect. Likewise, to hold, as the trial court here did, that endangerment of the physical or emotional well-being of the child could never meet the heightened ICWA standard is likewise incorrect. The "best interests" Texas standard is simply lower than the "serious emotional or physical damage" standard. If the heightened Indian standard is met, beyond a reasonable doubt, a factfinder could logically and correctly include other aspects of the Family Code as grounds for termination.

The majority discusses, at footnote 10, sister states that concurrently apply state law and the ICWA. This, I believe is the correct approach, so long as the application of state criteria meet or exceed the heightened ICWA requirements. State law and federal law should be read in pari materia.