In the Interest of T.A.B., a Child v. Texas Department of Family and Protective Services ( 2023 )

Affirmed and Majority and Dissenting Opinions filed September 14, 2023.
In The
Fourteenth Court of Appeals
NO. 14-23-00186-CV
NO. 14-23-00208-CV
IN THE INTEREST OF C.J.B., A CHILD
IN THE INTEREST OF T.A.B., A CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause Nos. 2021-01521J, 2021-01521J-B
DISSENTING OPINION
Based on my beliefs that W.D.H. controls and that the majority is not
following it, I respectfully dissent from the majority and would reverse and remand
with instructions that the trial court conduct its analysis and enter findings under
the Indian Child Welfare Act alone. While I agree with the majority that it is
generally appropriate for an appellate court to ignore a trial court’s erroneous
findings, I nonetheless conclude it is inappropriate to do so where (as here) such
findings are expressly prohibited by this court’s precedent. See In re W.D.H., 43
S.W.3d 30, 37 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“The
requirement under the Family Code that termination of the parent’s rights must be
in the best interest of the child is based on the ‘Anglo’ standard for determining the
best interest of the child . . . . When state courts make a determination regarding
the best interest of the child, ‘they obviously consider the factors from their own
perspective, that is, an Anglo-American point of view.’ . . . Therefore, we
conclude that it is not possible to comply with both the two-prong test of the
Family Code, which requires a determination of the best interest of the child under
the ‘Anglo’ standard, and the ICWA, which views the best interest of the Indian
child in the context of maintaining the child’s relationship with the Indian Tribe,
culture, and family . . . . Because, [sic] the best interest of the child, as required by
the Family Code, conflicts with the ICWA, the trial court erred in making its
determinations regarding the best interest of the child under state law.”) (internal
citations omitted); see also id. (quoting In re Custody of S.E.G., 521 N.W.2d 357,
363 (Minn. 1994) (“The best interests of the child standard, by its very nature
requires a subjective evaluation of a multitude of factors, many, if not all of which
are imbued with the values of majority culture.”)); In re Custody of S.E.G., 521
N.W.2d at 362 (“We believe, however, that a finding of good cause cannot be
based simply on a determination that placement outside the preferences would be
in the child’s best interests. The plain language of the Act read as a whole and its
legislative history clearly indicate that state courts are a part of the problem the
ICWA was intended to remedy.”); accord In re Adoption of Riffle, 922 P.2d 510,
515 (Mont. 1996) (holding the district court erred when it made a “best interests”
finding because it was “an unnecessary and inappropriate analysis under the
ICWA”).
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/s/ Meagan Hassan
Justice
Panel consists of Justices Jewell, Hassan, and Wilson (Wilson, J., majority).
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