in the Interest of N.N.G., a Child

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00076-CV
IN THE INTEREST OF M.M.W. AND N.N.G., A CHILDREN
No. 06-17-00080-CV
IN THE INTEREST OF N.N.G., A CHILD
On Appeal from the County Court at Law
Lamar County, Texas
Trial Court No. 85116
Before Morriss, C.J., Moseley and Burgess, JJ.
ORDER
As a result of a petition filed by the Texas Department of Family and Protective Services
(the Department), the trial court terminated Mother’s and Father’s parental rights to M.M.W. and
N.N.G. Mother and Father have each filed a separate appeal from the termination order. In
response, the Department has appropriately asked this Court to abate this appeal to allow the trial
court the opportunity to comply with the Indian Child Welfare Act (ICWA). We agree with the
Department’s contention that each of these cases must be abated.
Congress passed the ICWA 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 (1989). “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.” In re C.C., No. 12-17-00114-CV, 2017 WL 2822518, at *2 (Tex. App.—
Tyler June 30, 2017, no pet.) (mem. op.) (citing 25 U.S.C.A. § 1912(a) (Westlaw current through
PL 115–40); In re R.R., Jr., 294 S.W.3d 213, 217 (Tex. App.—Fort Worth 2009, no pet.)). “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. (quoting 25 U.S.C.A. § 1903(4) (Westlaw
current through PL 115–40)). “The ICWA, however, does not define what constitutes being a
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‘member’ or ‘being eligible for membership.’” Id. (citing 25 U.S.C.A. § 1903(4)). “Each tribe
has its own criteria for determining tribe membership.” Id.
“The Bureau of Indian Affairs created guidelines for state courts to use in Indian child
custody proceedings to assist with the interpretation of the ICWA.” Id. (citing Bureau of Indian
Affairs Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines), 44 Fed.
Reg. 67,584 (Nov. 26, 1979)). The BIA Guidelines state, “Proceedings in state courts involving
the custody of Indian children shall follow strict procedures and meet stringent requirements to
justify any result in an individual case contrary to these preferences.” Id. (quoting BIA Guidelines,
44 Fed. Reg. at 67,586). “Specific instructions are provided in the Guidelines for the determination
of the status of an alleged Indian child.” Id. (citing In re J.J.C., 302 S.W.3d 896, 900 (Tex. App.—
Waco 2009, no pet.)). “The burden is placed 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. (citing BIA Guidelines,
44 Fed. Reg. at 67,586 (stating that “the court shall seek verification of the child’s status”)).
“[C]ircumstances under which a state court has reason to believe a child involved in a child custody
proceeding is an Indian include [when] . . . (i) Any party to the case . . . informs the court that the
child is an Indian child . . . . (ii) Any public or state-licensed agency involved in child protection
services or family support has discovered information which suggests that the child is an Indian
child.” Id. (quoting BIA Guidelines, 44 Fed. Reg. at 67,586).
“Under the ICWA, an Indian tribe is entitled to notice of a custody proceeding involving
an Indian child.” Id. (citing 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
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know that an Indian child is involved.’” Id. (quoting 25 C.F.R. § 23.11 (Westlaw current through
June 22, 2017 issue)). “Section 23.11 also requires that the notice be sent to the ‘appropriate
Regional Director’ and the Secretary of the Interior.” Id. (quoting 25 C.F.R. § 23.11(a), (b), (c)).
On receipt of the notice, the Secretary of the Interior or his designee is required “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. (citing 25 C.F.R. § 23.11(c)).
“A violation of the ICWA notice provisions may be cause for invalidation of the
termination proceedings at some later, distant point in time.” Id. (citing 25 U.S.C.A. § 1914
(Westlaw current through PL 115–40) (providing that “[a]ny Indian child who is the subject of any
action for . . . 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”)).
Here, with respect to each child, the Department’s petition stated, “an inquiry regarding
the child or family’s possible Indian ancestry is not complete.” The Department further
acknowledged, in three permanency reports included in the clerk’s record, that Mother recently
reported that the children had Indian heritage. Both Mother’s report and the Department’s
knowledge of her report that the children may have Indian ancestry were “sufficient to trigger the
ICWA’s requirements for notification and determination of Indian status.” Id. at *3. Therefore,
the trial court was obligated to notify and “seek verification of the child’s status from either the
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Bureau of Indian Affairs or the child’s tribe.” BIA Guidelines, 44 Fed. Reg. at 67,586. These
notice provisions are mandatory. Id.
Thus, because the inquiry required by ICWA is necessary here, we abate the appeals in
cause numbers 06-17-00076-CV and 06-17-00080-CV, with the following instructions:
(1) the trial court shall provide proper notice that complies with the ICWA’s statutory
notice requirements discussed herein, no later than October 26, 2017;
(2) the trial court shall thereafter conduct a hearing to determine whether M.M.W. and
N.N.G. are Indian children under the ICWA;
(3) the trial court shall cause a record of the proceedings to be prepared and shall make
appropriate findings as to whether M.M.W. and N.N.G. are Indian children;
(4) the reporter’s record from the hearing shall be filed with this Court; and
(5) a supplemental clerk’s record in each appeal (including any orders and findings
resulting from the ICWA hearing) shall be filed with this Court.
See TEX. R. APP. P. 44.4. Due to the accelerated nature of parental-rights termination proceedings,
the trial court shall conduct these abatement proceedings in an expedited fashion. Both appeals
will be reinstated in this Court following the filing of the supplemental appellate records in each
appeal. Until such time, the current submission dates of November 1, 2017, in cause number 06-
17-00076-CV and November 2, 2017, in cause number 06-17-00080-CV are hereby withdrawn.
IT IS SO ORDERED.
BY THE COURT
Date: October 16, 2017
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