in the Interest of Y.J., a Child

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00235-CV
___________________________
IN THE INTEREST OF Y.J., A CHILD
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-107644-18
Before Sudderth, C.J.; Gabriel and Birdwell, JJ.
Memorandum Opinion by Justice Birdwell
Chief Justice Sudderth and Justice Gabriel concur without opinion.
MEMORANDUM OPINION
This unusual appeal is from an order terminating parental rights, but neither
parent has appealed, the Department of Family and Protective Services (Department)
was dismissed and has not appealed, and no appealing party challenges the
termination. Instead, three intervenors––the Navajo Nation, the Office of the
Attorney General of the State of Texas (AG), and two of the nonparents the trial
court named as joint managing conservators for the child, C.B. and J.B. (the Bs)––
appeal the part of the trial court’s order naming the Bs and the child’s Navajo
maternal great-aunt A.J. the child’s joint managing conservators.
At trial and on appeal, the majority of the parties’ arguments have centered on
the constitutionality of the federal Indian Child Welfare Act (ICWA) and its
applicability to this case. If constitutional, ICWA applies to certain aspects of this case
because the child at issue is Navajo through her biological mother (Mother). See 25
U.S.C.A. §§ 1901–63. At the heart of the dispute is whether ICWA’s post-termination
placement preferences––which favor placement of an Indian child with Indian
families––control, or whether the trial court should apply solely Texas law regarding
the child’s best interest. Id. § 1915 (mandating that Indian child be placed in a
preadoptive or adoptive placement with Indian relatives, the child’s tribe, or any other
Indian family absent good cause not to do so); Tex. Fam. Code Ann. § 153.002 (“The
best interest of the child shall always be the primary consideration of the court in
determining the issues of conservatorship and possession of and access to the child.”).
2
The Navajo Nation contends that ICWA is constitutional and mandates placing
the child solely with A.J.1 The AG and the Bs claim that ICWA is unconstitutional
under both the United States and Texas Constitutions, that it does not pre-empt
Texas law and therefore cannot be applied to these proceedings, and that the trial
court abused its discretion under Texas law by naming A.J. as one of the child’s joint
managing conservators along with the Bs.
The trial judge purported not to determine ICWA’s constitutionality under the
United States Constitution. Instead, he held that even if ICWA does not violate the
United States Constitution, it nevertheless does not apply to this proceeding because
(1) ICWA violates the anticommandeering doctrine and therefore cannot validly pre-
empt Texas law and (2) Family Code Section 152.104, which the judge concluded
attempts to engraft ICWA into Texas law, violates the Texas constitution.
After considering the record and procedural posture of this case––taking into
account the ultra-accelerated nature of this appeal––we conclude we need not decide
at this time whether ICWA is constitutional; regardless of ICWA’s application, the
trial court committed reversible error requiring a new trial on conservatorship. We
therefore reverse only the part of the trial court’s order naming the Bs and A.J. joint
managing conservators for the child, and we remand the case for a new trial on that
issue.
Alternatively, the Navajo Nation argues that if ICWA does not apply, the trial
1
court did not abuse its discretion by naming A.J. a joint managing conservator along
with the Bs.
3
Pretrial Factual and Procedural Background
Removal and initial placement efforts
On June 13, 2018, the Department filed a petition seeking conservatorship of
Y.J. or termination of her parents’ rights because Y.J. had tested positive for
marijuana, amphetamines, and methamphetamines at birth. In the attached affidavit, a
Department caseworker averred that Mother had told Texas Child Protective Services
(CPS) workers that she is a member of the Navajo tribe and that the workers had
contacted the tribe to seek Navajo tribal members for foster placement. Mother
named more than one man as a possible father; at least one of those men requested
DNA testing and was excluded as Y.J.’s biological father. The Department alleged
that it had attempted to contact some of Mother’s suggested placements, but none
were suitable. It also alleged that Mother had an extensive history with New Mexico
CPS, that seven of her other children had been removed from her care, and that “the
Tribal Council” had placed four of those children with relatives. The caseworker
stated further in the affidavit that one of Mother’s other children had been removed
in Texas when the maternal grandmother––who allegedly had a New Mexico CPS
history and with whom Mother had left the child––had tested positive for
methamphetamine use. The affidavit also stated that the Navajo Nation was “working
to locate a potential Navajo foster home for placement.”
An associate judge signed an order naming the Department Y.J.’s temporary
sole managing conservator.
4
Mother waived service of citation. After the statutory temporary adversary
hearing, see Tex. Fam. Code Ann. § 262.201, the trial court ordered Mother and the
child’s alleged fathers to submit the Section 261.3072 Child Placement Resources
Form and specifically found, “the Department . . . does not have the option of placing
the child with a relative [or] other designated caregiver.” The order also noted that the
“inquiry regarding the child or family’s possible Indian ancestry [was] not complete
due to ex parte proceedings or similar circumstances.” The Department placed Y.J. in
a non-Indian foster home.
Four days after the adversary hearing, the Navajo Nation sent a letter stating
that Y.J. was eligible for “ICWA[] service” and that the Navajo Nation would assign
an ICWA social worker to the case to coordinate services with the Department.
Identification of first ICWA-compliant home
Although a caseworker noted in the child’s June 2018 service plan, “Worker
will engage with the Navajo Nation to discuss possible placements,” she also stated
that the Navajo Nation had not contacted the Department about what it could do to
preserve the child’s heritage. In a July 2018 status report, a CPS specialist told the trial
court that the Navajo Nation had identified an ICWA-compliant home as a possible
placement.
See Tex. Fam. Code Ann. § 261.307(a)(2) (describing form’s contents,
2
including instruction that parent list at least three persons who could be relative
caregivers or designated caregivers), § 264.751 (defining types of caregivers).
5
Around the same time, the Department filed a Motion for Expedited
Placement Under the Interstate Compact for the Placement of Children (ICPC),3 in
which it sought an expedited placement of the child with a Colorado family identified
by the Navajo Nation. The Navajo Nation had also sent the Department a “favorable
Navajo Adoption Home Study” on the family. The nine-page, detailed report
discusses the suitability of the couple and the man’s Navajo heritage and family ties. It
further notes that although the man had a “finding” on an Arizona background check,
the offense was over twenty years old (i.e., when he was twenty-one or younger) and
his lifestyle had changed for the better.
The trial court approved the placement in late July 2018 and ordered the
Department to expedite its compliance with the ICPC to effectuate the placement.
But the Department’s attempts to comply with the ICPC for this placement were
repeatedly rejected for administrative reasons, such as missing records and lack of a
social security number for Y.J. After a second failed attempt in October 2018, the
Department stopped trying to comply with the trial court’s order because, by that
time, a Texas federal judge had held ICWA unconstitutional in a case in which the
State of Texas is a party. See Brackeen v. Zinke, 338 F. Supp. 3d 514, 536–46 (N.D. Tex.
See id. §§ 162.101–.107 (adopting the ICPC, by which states cooperate to place
3
children across state lines with the goal of placing children “in a suitable environment
and with persons or institutions having appropriate qualifications and facilities” while
giving authorities in the state where the child resides and the state where the child is
to be placed an adequate opportunity and the necessary information to evaluate the
placement’s suitability).
6
2018), rev’d, 937 F.3d 406 (5th Cir. 2019), reh’g en banc granted, 942 F.3d 287 (5th Cir.
2019). The Department never placed Y.J. with the Colorado family,4 and she stayed
with her Texas, non-ICWA-compliant foster placement.
Interventions related to Y.J.’s placement
In late November 2018, the Navajo Nation intervened in the Department’s suit
and immediately sought removal of the case to a tribal court under ICWA. The Bs,
who by that time had adopted Y.J.’s three-year-old half sibling Alan, 5 also intervened
seeking termination of Y.J.’s parents’ rights, adoption of Y.J., and appointment as
Y.J.’s permanent managing conservators. The Bs, along with Mother,6 opposed
removal of the case to a tribal court. The Navajo Nation opposed placement of Y.J.
with the Bs.
After the Bs intervened, Mother signed an affidavit that was filed in the clerk’s
record; the affidavit contains a certificate of service from Mother’s appointed counsel.
In the affidavit, Mother asked the trial court to place Y.J. with the Bs “as soon as
possible . . . [to] allow her to be placed with her sibling (who is also a Navajo
4
The Department began reconsidering this family in January 2019, and they
were approved in February 2019, but by that time the Navajo Nation had notified the
Department about A.J., who as a family member is a preferred placement under
ICWA.
5
Alan is a pseudonym. See Tex. Fam. Code Ann. § 109.002(d). Mother has
seven other children, but Alan is the closest in age to Y.J. Because Y.J.’s father is
unknown, we refer to all of Mother’s other children as half siblings.
The Department had lost track of Mother, but the Bs found her in the Tarrant
6
County Jail. Mother’s appointed counsel filed the objection to removal to tribal court.
7
member).” Mother averred that placement with the Bs allowed Y.J. “reasonable
proximity to [Mother], her home, [and] extended family and siblings.” Mother also
signed a Section 261.307 form naming the Bs as “relatives or close family friends”
who could take care of Y.J.
On December 3, 2018, the Fifth Circuit Court of Appeals stayed enforcement
of the Northern District trial judge’s order determining that ICWA is
unconstitutional.
Later that month, the Navajo Nation filed a Motion for Placement of the
Child, urging the trial court to place Y.J. with the Colorado family that the Navajo
Nation had originally identified and complaining that the Department had not
complied with the July 2018 order requiring it to do so. The Bs responded by moving
to have Y.J. placed with them. They also opposed the Navajo Nation’s motion,
arguing that if ICWA does not apply, Texas law favors placement with them because
they had adopted Alan. Cf. 40 Tex. Admin. Code § 700.1309(3) (setting forth factors
Department considers in placing children in substitute care and including as a factor
that “[s]iblings removed from their home should be placed together unless such
placement would be contrary to the safety or well-being of any of the siblings”). They
argued alternatively that good cause existed to depart from ICWA’s placement
preferences.
Thus began a course of briefing in the trial court on ICWA’s constitutionality,
with the Bs challenging its constitutionality and the Navajo Nation advocating its
8
constitutionality. The AG filed an amicus curiae brief in support of the Bs, challenging
the constitutionality of ICWA on the same grounds and also urging placement of Y.J.
with the Bs.
In January 2019, the Navajo Nation amended its placement request and instead
moved to have Y.J. placed with Mother’s great-aunt A.J.––a Navajo who lives on the
reservation in Arizona near Y.J.’s four oldest half siblings, 7 who live with another
great-aunt––and, alternatively, with the Colorado couple. The Navajo Nation also
moved to dismiss the Bs’ intervention for lack of standing. The trial court denied that
motion.
In March 2019, the trial court issued a ruling on ICWA’s applicability, making
the following findings:
The Court acknowledges multiple claims under the United States
Constitution, but is providing deference to the United States Court of
Appeals for the Fifth Circuit Stay Pending Appeal dated December 3,
2018, and conscientiously refraining from ruling on those matters in this
order of the court.
The Court finds . . . Texas Family Code §152.104(a) to be in
violation of Article I, Section 1 of the Texas Constitution and
inapplicable to the proceedings in this matter.
The Court finds . . . Texas Family Code § 152.104(a) to be in
violation of Article I, Section 3 of the Texas Constitution and
inapplicable to the proceedings in this matter.
7
Although Mother’s rights to these half siblings have not been terminated, she
does not see them.
9
The Court finds . . . Texas Family Code § 152.104(a) to be in
violation of Article I, Section 3a of the Texas Constitution and
inapplicable to the proceedings in this matter.
The Court finds . . . Texas Family Code § 152.104(a) to be in
violation of Article I, Section 19 of the Texas Constitution and
inapplicable to the proceedings in this matter.
The Court finds . . . Texas Family Code § 152.104(a) to be in
violation of Article I, Section 29 of the Texas Constitution and
inapplicable to the proceedings in this matter.
The court also held,
The Court, having reviewed the Motion to Declare ICWA Inapplicable
as Unconstitutional, any responses and reply thereto, the evidence
presented, the pleadings on file, the arguments of the parties, and the
applicable law, is of the opinion that the Motion to Declare ICWA
Inapplicable as Unconstitutional should be GRANTED.
IT IS HEREBY ORDERED that Texas Family Code 152.104,
is unconstitutional and inapplicable to these proceedings.
Despite this ruling, neither the Bs nor the Department moved to strike the
Navajo Nation’s intervention.
Final trial was set for May 3, 2019. Although A.J. intervened before final trial,
the trial court dismissed her intervention petition for lack of standing. 8
A little less than a month before trial, Mother signed a voluntary affidavit of
relinquishment of her parental rights; in it, she designated the Department as Y.J.’s
8
A.J.’s petition in intervention stated “that placement with her would provide
the child access to the four siblings and the child’s maternal grandmother.” [Emphasis
added.] Because the evidence showed that in Navajo society older maternal relatives
are referred to as grandmothers, it is unclear whether she was referring to herself or to
Y.J.’s actual maternal grandmother.
10
managing conservator and stated that she preferred that Y.J. be placed with the Bs for
adoption.
At trial, the Department, the Navajo Nation, and the Bs all supported
termination of Y.J.’s parents’ rights and appointment of the Department as Y.J.’s
permanent managing conservator. The Department and the Navajo Nation
recommended that Y.J. be placed with A.J., 9 but the Bs advocated placing Y.J. with
them and asked to be named possessory conservators so that the Department would
not place Y.J. with A.J. after being named permanent managing conservator. The trial
court ordered on the record that Mother’s and all alleged fathers’ rights be terminated,
but instead of naming the Department Y.J.’s permanent managing conservator, the
trial court named the Bs and A.J. joint managing conservators and designated the Bs
as the primary persons to designate Y.J.’s residence, so long as Y.J. was living within
9
The Department’s recommendation was different than the AG’s amicus
recommendation. The record does not indicate why these two State agencies
disagreed on the proper placement for Y.J., but the record does show that the
Department had dealt with the Bs in connection with Alan’s adoption and that
Department workers were aware of the Bs when Y.J. came into care because of the
federal court litigation. Y.J.’s caseworker could not explain why the Department never
considered the Bs even for a temporary placement because other Department workers
made that decision; she admitted the Department did not follow its own policy about
placing removed children in care with siblings. Additionally, C.B. testified that he had
asked Y.J.’s caseworker––also Alan’s caseworker––on the date the Department
removed Y.J. from Mother’s care whether she knew anything about Y.J.’s being in
care, and she told them she did not know and said, “[I]f there was a baby in care, I
think I would know about it.” The caseworker at first did not admit that she had
talked to C.B., but when given the date of the phone call, she explained, “I believe at
that time I didn’t feel comfortable with giving him any information of that case”
because she could not disclose a child’s personal information to a nonparty.
11
two states of Arizona (including Texas). The trial court stated its intention to treat the
Bs and A.J. as if they were divorced parents residing more than 100 miles apart, but
with a stair-step schedule for A.J.’s possession, beginning with one week in summer
2019, two weeks in summer 2020, and so on until Y.J. turned five, when A.J. would
have extended summer possession. The trial court dismissed the Department from
the suit. 10
After trial, the AG also intervened in the suit and filed a motion for new trial.
The AG continued to support placement of Y.J. with the Bs.
The trial judge did not sign an order of termination until almost two months
after trial. The order is consistent with the trial judge’s ruling on the record and
provides a detailed possession schedule, which until 2023 gives A.J. exclusive
possession of Y.J. only during the stair-stepped weeks in the summer. Beginning in
2023, when Y.J. turns five, the order provides for possession by A.J. one weekend
each month, one week every spring, and extended summer possession. The order
provides that the Bs have the right of possession of Y.J. “at all other times not
specifically designated” for A.J.
The only parties that appealed the trial court’s judgment are the Bs, the AG,
and the Navajo Nation. Because the Department did not file a notice of appeal, and
no party has argued that just cause exists for rendering a judgment that the
Department be named managing conservator, we do not consider that as a choice for
10
The Department did not file a notice of appeal from the trial court’s ruling.
12
our disposition. See Tex. R. App. P. 25.1(c); see also Tex. Fam. Code Ann. § 161.207(a)
(requiring trial court to appoint “suitable, competent adult” as managing conservator
after termination if not appointing the Department). Thus, the only dispute before
this court is whether the trial court’s awarding joint managing conservatorship to the
Bs and A.J. should stand. The Navajo Nation asks us to reverse and render a
judgment that Y.J. be placed in accordance with ICWA preferences (or in the
alternative, to remand for ICWA-compliant proceedings); the Bs and the AG ask us
to hold ICWA unconstitutional, reverse the trial court’s order, and render judgment
that the Bs be named Y.J.’s sole managing conservators so that they may adopt her.
Because we determine that the trial court abused its discretion in making its joint-
managing-conservatorship ruling, necessitating a remand for a new trial, regardless of
whether ICWA applies, we do not reach the constitutionality of ICWA. But we do not
foreclose the trial court’s reconsidering the issue and ruling on it in the remanded
proceedings.
The Bs Have Standing In This Suit
In its fifth issue,11 the Navajo Nation argues that the Bs lacked standing to seek
placement of Y.J. with them or appointment as managing conservators. According to
the Navajo Nation, Family Code Section 102.005(4), on which the Bs relied to
intervene in the suit, allows a party to seek only adoption or termination and
adoption, not placement or appointment as a managing conservator. The Navajo
11
We address the issues out of order for ease of discussion.
13
Nation also argues that Section 102.005 allows a party to file only an original suit, not
an intervention, because the statute does not specifically say that it allows
intervention.
Section 102.005 provides that “[a]n original suit requesting only an adoption or
for termination of the parent–child relationship joined with a petition for adoption
may be filed by . . . an adult who has adopted, or is the foster parent of and has
petitioned to adopt, a sibling of the child.” Tex. Fam. Code Ann. § 102.005(4). The
Navajo Nation does not dispute that the Bs have adopted Alan.
As a general rule, an individual’s standing to intervene is commensurate with
that individual’s standing to file an original lawsuit. In re A.C., Nos. 10-15-00192-CV,
10-15-00193-CV, 2015 WL 6437843, at *9 (Tex. App.—Waco Oct. 22, 2015, no pet.)
(mem. op.); Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (op. on reh’g) (“Generally, an intervenor must show standing to
maintain an original suit in order to intervene.”). A party’s standing to file an original
suit affecting the parent–child relationship is typically governed by Family Code
Sections 102.003, 102.004, and 102.005. Tex. Fam. Code Ann. §§ 102.003–.005; A.C.,
2015 WL 6437843, at *9; see In re Smith, 262 S.W.3d 463, 467 (Tex. App.—Beaumont
2008, orig. proceeding [mand. denied]). A party who has standing to file an original
suit under Section 102.005 may also file an intervention under that same statute. A.C.,
2015 WL 6437843, at *8–9.
14
The Navajo Nation acknowledges the holdings of A.C. and Whitworth but
argues that by not specifically mentioning intervention, the plain language of Section
102.005 allows only the filing of an original suit, not an intervention. The Navajo
Nation cites no authority supporting this proposition, and we have not found any. It
discusses the holding in Whitworth––in which the court discussed Family Code Section
102.004(b), which specifies which parties can intervene in a suit affecting the parent–
child relationship––but Whitworth does not support the Navajo Nation’s argument.
222 S.W.3d at 621–22. Section 102.004(b) provides standing to intervene to certain
parties who do not have standing under another Family Code provision to file an
original suit. See Tex. Fam. Code Ann. § 102.004(b); In re N.L.G., 238 S.W.3d 828, 830
(Tex. App.––Fort Worth 2007, no pet.); In re A.M., 60 S.W.3d 166, 169 (Tex. App.—
Houston [1st Dist.] 2001, no pet.). But the Bs do have standing to file an original suit
under Section 102.005(4), and that section does not expressly prohibit a party with
original standing from intervening in a suit. Nor does any other Family Code
provision. But cf. Tex. Fam. Code Ann. § 102.006 (limiting standing of certain parties
who would otherwise have standing to file an original suit affecting the parent–child
relationship). Therefore, we conclude that the plain language of Section 102.005(4)
permits the Bs to intervene rather than bars them from intervening.
The Navajo Nation argues, alternatively, that the Bs’ standing was limited to
seeking adoption only, or termination and adoption, and that the Bs have no standing
to seek placement of Y.J. or managing conservatorship because Section 102.005 limits
15
the relief they can ask for. The Bs’ focus in their pleadings and at trial was for the
parents’ rights to be terminated so that the Bs could adopt Y.J., which is what Section
102.005 gives them standing to seek. See Turner v. Robinson, 534 S.W.3d 115, 123 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied) (“Standing is determined at the time
suit is filed in the trial court.”). Their requests for conservatorship were in response to
the Department’s apparent unwillingness to consider them as a placement and
potential adoption choice. Additionally, because Y.J. had not been placed with them,
she had not lived with them for at least six months––a prerequisite to adoption unless
the trial court waives that requirement when it is in the child’s best interest. See Tex.
Fam. Code Ann. § 162.009. Absent the trial court’s waiver, the only way the Bs could
fulfill the residency prerequisite was by obtaining conservatorship and possession of
Y.J.
Here, the trial court ordered termination but not adoption in a suit in which the
Bs had standing to seek them jointly. Nothing in Section 102.005 limits their standing
to seek post-termination conservatorship as against the Department or any other
nonparent in this instance. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
446 (Tex. 1993) (noting that because standing—in terms of a party’s right to initiate a
lawsuit and the trial court’s power to hear it—is determined when suit is filed,
subsequent events do not deprive the court of subject matter jurisdiction).
We therefore overrule the Navajo Nation’s fifth issue.
16
Constitutionality of ICWA and Family Code Section 152.104(a)
In its first and second issues, the Navajo Nation contends that the trial judge
erred by not holding ICWA constitutional and by holding that Section 152.104(a) of
the Family Code violates the Texas constitution. The AG’s first and second issues,
and the Bs’ first through third issues, urge the opposite contention: they argue that
ICWA is unconstitutional, that Family Code Section 152.104(a) engrafts all of ICWA
into Texas law, and that Section 152.104(a) violates the Texas constitution. Although
we hold that the trial court made two errors in its legal reasoning, we do not sustain
any of the parties’ issues related to the constitutionality question because we need not
decide their merits.
First, although the trial judge stated that he declined to decide ICWA’s
constitutionality under the United States Constitution, he determined that ICWA
could not validly pre-empt Texas law because it violates the anticommandeering
doctrine, as explained in Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018): “The
anticommandeering doctrine . . . is simply the expression of a fundamental structural
decision incorporated into the Constitution, i.e., the decision to withhold from
Congress the power to issue orders directly to the States.” In describing the doctrine,
the Supreme Court explained that a statute that violates the anticommandeering
doctrine is unconstitutional because no provision in the Constitution gives Congress the
power to pass such a law. Id. at 1479. Although Murphy discussed whether a statute
that violates the anticommandeering doctrine could validly pre-empt state law, the
17
Court determined that such a statute could not because pre-emption flows from the
Supremacy Clause, which is not an independent grant of congressional power. Id. In
other words, pre-emption under the Supremacy Clause will not save a statute that
violates the anticommandeering doctrine because such a law still exceeds Congress’s
power under the United States Constitution, and otherwise unconstitutional statutes
cannot pre-empt state law. See id. Thus, by determining that ICWA violates the
anticommandeering doctrine under Murphy and cannot pre-empt Texas state law, the
trial court actually determined that ICWA is unconstitutional under the United States
Constitution, even though it purported not to do so.
Second, the trial court then held that Texas Family Code Section 152.104(a)
purports to independently apply all provisions of ICWA to all aspects of a Texas child
custody proceeding involving an Indian child. See 25 U.S.C.A. § 1903(4) (defining
“Indian child”). Section 152.104(a) provides that “[a] child custody proceeding that
pertains to an Indian child as defined in the Indian Child Welfare Act of 1978 (25
U.S.C. Section 1901 et seq.) is not subject to this chapter to the extent that it is governed
by the Indian Child Welfare Act.” Tex. Fam. Code Ann. § 152.104(a) (emphasis
added). “[T]his chapter” is Chapter 152, which adopted the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA). Id. § 152.101. Chapter 152 deals
generally with the proper court in which custody disputes regarding a child are to be
heard and the authority to be given to child custody determinations of other courts.
See id. §§ 152.001–.317.
18
By its plain language, Section 152.104(a) does not purport to apply all ICWA
provisions to all facets of Texas child custody proceedings. By limiting its scope to
“this chapter,” it defers to ICWA only in jurisdictional issues arising under the
UCCJEA. 12 No such issues occurred in this proceeding. Except for the Navajo
Nation’s attempt to remove the case to a tribal court––the denial of which the Navajo
Nation has not appealed13––all parties have agreed that the trial court is the court of
continuing, exclusive jurisdiction for this case. See id. § 152.202. Thus, the trial court
erred by holding that Section 152.104(a) of the Family Code purported to make all of
ICWA applicable to all facets of Texas child custody proceedings, independent of
federal law. The placement preferences of ICWA at the heart of this case are not
affected by whether Section 152.104(a) violates the Texas constitution; thus, that
ruling of law was unnecessary to the disposition of this case. 14
12
By comparison, other states have specifically incorporated ICWA into state
proceedings. See, e.g., Cal. Welf. & Inst. §§ 224–224.6 (incorporating specific
provisions of ICWA into California law); Okla. Stat. tit. 10, § 40.1 (stating that the
Oklahoma Indian Child Welfare Act was intended to clarify “state policies and
procedures regarding the implementation by the State of Oklahoma of the federal
Indian Child Welfare Act”), § 40.6 (“The placement preferences specified in 25 U.S.C.
Section 1915, shall apply to all . . . preadoptive, adoptive and foster care
placements.”).
13
ICWA allows such a removal only if no parent objects. 25 U.S.C.A. § 1911(b).
14
We therefore agree with the Navajo Nation that Section 152.104(a)’s
constitutionality has no bearing on this case. Accordingly, we also decline to address
whether Section 152.104(a) violates the Texas constitution. See In re B.L.D., 113
S.W.3d 340, 349 (Tex. 2003).
19
To summarize, the trial court purported not to decide whether ICWA violates
the federal Constitution, but its ruling that ICWA violates the anticommandeering
doctrine is actually a determination that ICWA is unconstitutional. Although the trial
court purported not to apply ICWA to the proceedings, it allowed the Navajo Nation
to participate in the trial 15 and made A.J.––a nonparty whose interest is being
represented only by the Navajo Nation––a joint managing conservator. And, as an
alternative ruling, the trial court found that even if ICWA is constitutional and applied
to the proceedings, good cause existed to deviate from its preferred placement
scheme. See 25 U.S.C.A. § 1915(a)–(b) (providing placement preferences “in the
absence of good cause to the contrary”). Thus, the trial court applied ICWA while
purporting not to apply ICWA.
The trial judge understandably attempted to avoid squarely addressing whether
ICWA violates the United States Constitution. A federal district judge has held that it
does, a Fifth Circuit panel––with one judge dissenting––has held that it does not, and
the Fifth Circuit court has vacated the panel opinion and judgment and will be
rehearing the case en banc. Therefore, this exact issue has been––and will be––
extensively briefed and argued in the federal system in a case in which both the State
of Texas and the Bs are parties. But in his attempt to fashion a remedy that
15
See 25 U.S.C.A. § 1911(c) (giving Indian child’s tribe the right to intervene at
any point in a state proceeding for the foster care placement of, or termination of
parental rights to, an Indian child).
20
incorporates the important concerns of ICWA 16 and Texas law regarding the best
interest of the child,17 the trial judge made conflicting rulings in this case that are
difficult to harmonize. In attempting to address the interests of all parties and provide
alternative relief in the event the Fifth Circuit (or perhaps ultimately the United States
Supreme Court) decides ICWA is constitutional, 18 the trial judge reversibly erred.
Because, as we explain below, the trial judge’s sua sponte conservatorship ruling
necessitates a new trial regardless of the federal system’s conclusion regarding ICWA’s
constitutionality, we need not reach the federal constitutional issue 19 and therefore do
not grant any of the parties relief under their related issues.
See id. § 1901–02.
16
17
The Navajo Nation contends “that ICWA does not abandon––nor compel
trial courts to abandon––the best interests of children. Instead, ICWA supplements
the traditional best interest standards with a modified best interest standard and stated
placement preferences, which are not absolute.”
18
Practically speaking, we do not quarrel with this approach. Failing to comply
with certain provisions of ICWA can result in a challengeable, infirm judgment well
after the trial court has made a ruling and the child has bonded with a caregiver, see id.
§ 1913(d) (allowing an Indian child’s parent who voluntarily consented to adoption to
petition to vacate it on duress or fraud grounds), §1914 (allowing Indian child’s parent
or tribe to petition to invalidate foster care placement or termination for violation of
Sections 1911, 1912, 1913), a result which goes against bedrock principles
underpinning Texas family law that are focused on promoting stability and
permanence for children. Following the procedural requirements of ICWA for the
termination––while recognizing the tension that can seemingly result in some cases
between its stated goals and a child’s best interest––is an understandable approach
until the federal constitutional question is settled.
Likewise, we need not address the Navajo Nation’s subargument that the AG
19
and the Bs are bound by issue preclusion, an argument which the Navajo Nation
21
Evidence Does Not Support Ruling Under Either Texas Law or ICWA
The Navajo Nation’s fourth issue, and the Bs’ fourth and fifth issues,20
advocate that the trial court’s joint managing conservatorship decision should be
reversed: the Navajo Nation because it contends ICWA requires placement with A.J.
only, in that the evidence is legally and factually insufficient to show that good cause
exists to deviate from ICWA’s Indian-centered placement preferences; and the Bs
because (1) they contend that the trial court’s decision is not in Y.J.’s best interest
under Texas law21 and (2) even if ICWA applies, the evidence shows that good cause
exists to deviate from ICWA’s placement preferences. Because both sides’ complaints
require an examination of the trial evidence, we review their issues together.
Standard of review
The parties agree that we review the trial court’s conservatorship decision for
an abuse of discretion. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.K.M.,
concedes has been rendered moot by the Fifth Circuit’s subsequent actions in the case
pending in that court, except to the extent that the complaint must be raised for
preservation purposes.
20
We do not reach the Navajo Nation’s third issue, which argues about alleged
error in pre-termination placement of Y.J. Because both parents’ rights have been
terminated and no party challenges the termination, even if error occurred in the pre-
termination placements, the Navajo Nation would not be entitled to relief. See In re
A.M., 570 S.W.3d 860, 866–67 (Tex. App.––El Paso 2018, no pet.) (citing, and
agreeing with reasoning of, Montana and Iowa cases holding similarly); see also Tex. R.
App. P. 47.1.
See generally Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (setting forth
21
nonexhaustive factors courts generally use in analyzing child’s best interest).
22
No. 02-12-00469-CV, 2013 WL 6564267, at *2 (Tex. App.––Fort Worth Dec. 12,
2013, no pet.) (mem. op.). A trial court abuses its discretion if it makes an erroneous
legal ruling even in an unsettled area of law. See In re Dawson, 550 S.W.3d 625, 628
(Tex. 2018) (orig. proceeding); In re United Scaffolding, Inc., 301 S.W.3d 661, 663 (Tex.
2010) (orig. proceeding). Thus, whether the evidence supporting the decision is legally
and factually sufficient is relevant in deciding whether the trial court abused its
discretion. See In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.––Fort Worth 2002, pet.
denied) (op. on reh’g).
Evidentiary review
Termination of parental rights was not the focus of the trial because Mother
relinquished her rights and a father could not be found; instead, the primary
consideration before the trial court was where to place Y.J. after termination. The Bs’
primary focus was on adoption, whether by immediate placement with them and
eventual adoption after a conservatorship or by waiver of the six-month requirement
and immediate adoption.
The Department’s caseworker
As stated before, the Department advocated placement of Y.J. solely with A.J.
The caseworker testified that although delays in the Department’s IT system had
prevented the completion of an ICPC home study for A.J.,22 she had no concerns
22
The Department had sent the request to Arizona, who then had to send the
request to the Navajo Nation. Once the Navajo Nation had completed its home study
23
about placement with A.J. after speaking with her on the phone. According to a
representative from the Navajo Nation, the ICPC home study for A.J. would have
been fully completed less than a week after trial. A.J. lives close to Y.J.’s four oldest
half siblings and sees them at least once a week. A.J. had not visited Y.J. while the case
was pending. When asked why, the caseworker responded, “Just financially and she’s
out of state. It’s hard to come to Texas.”
Y.J. was very bonded to the foster family she was living with at the time of trial,
and the Department had no concerns about that home. The Department planned for
Y.J. to stay there pending completion of A.J.’s home study. According to the
caseworker, the Department would have recommended A.J. for placement even if
ICWA did not apply because A.J. is a family member. According to the caseworker,
Y.J.’s best interest was to be placed with A.J. instead of the Bs because of “family
ties,” which includes extended family. A.J. and Y.J.’s oldest half sibling had visited
with Y.J. the day before trial.
The caseworker stated that the Bs had offered Mother an open adoption,23 in
which Mother would continue to have contact with Y.J. The Department did not
think an open adoption was in Y.J.’s best interest. But the caseworker testified that it
and other requirements, it would send the materials back to Arizona, which would
then send the final approval to Texas. At the time of trial, Texas had sent the original
request to Arizona, but Arizona had not yet forwarded it to the Navajo Nation.
The caseworker was never asked to explain how she knew the Bs had offered
23
an open adoption, but she said that she had become concerned because she had heard
about a “possible” open adoption.
24
was in Y.J.’s best interest to stay in her then-current foster placement “for up to . . .
two weeks” until the ICPC approval was finished, “knowing it can be finished with[in]
less than a week.” The Department intended to place Y.J. with A.J. upon Arizona’s
ICPC approval.
According to the caseworker, from September 2018 to the time of trial, the Bs
had possession of and access to Y.J. for at least one visit per month, anywhere from
overnight to a full day. Y.J.’s foster mother set up these visits. When asked whether
the sibling contact between Y.J. and Alan would be maintained if Y.J. were to be
placed with A.J., the caseworker responded, “I believe [Y.J.] will know where to
contact her brother and how that initial -- initial bond that she created when she met
him here.”
Although the foster parent was adoption motivated, the foster family was not
ICWA compliant.
CASA representative
Stacey Main, the CASA representative for Y.J., had also been Alan’s advocate.
Main recommended placing Y.J. with the Bs because of the relationship they already
had with her and to minimize “trauma.”24 She also acknowledged that naming the
Department as Y.J.’s managing conservator would facilitate financial subsidies for Y.J.
24
Main said that CASA had trained her in trauma, utilizing a continuing series
of two-hour lectures from a doctor who specializes in childhood trauma.
25
According to Main, Y.J. already had an attachment to her foster mother and to
the Bs. But Main agreed it was important for Y.J. to bond with her oldest half siblings
and extended family in Arizona. As to placement with A.J., Main opined, “I look at it
as a win-win either way. If she goes with the [Bs], she wins. If she goes with [A.J.], she
wins. If she stays with the foster home, she wins. I like them all.” According to Main,
keeping Y.J. “with family” was the main goal, and Y.J. would have contact with her
family with any of those placements.
Y.J. had normal, sibling-type interactions with the Bs’ children. Her then-
current foster parents “adore[d]” her and were bonded to her.
Navajo Nation expert
Celeste Smith, a senior social worker with Navajo Children and Family Services
Indian Child Welfare Act, testified as an expert on the Navajo Nation. Smith is an
enrolled member of the tribe who lives on the reservation. Although Smith agreed
that termination of the parents’ rights was in Y.J.’s best interest, she recommended
placement of Y.J. with A.J.
Smith had initiated a home study for A.J., but she had not received it by the
time of trial because the ICPC request with Arizona had not been completed.
Nevertheless, she had no concerns about A.J. based on background checks. 25 Smith
estimated that when she received the ICPC request from Arizona, she could finish the
25
State and federal background checks, and Navajo Department of Family
Services background checks, for A.J. and her adult son living with her showed “no
findings.”
26
home study within a week. The only remaining items were for A.J. to obtain a Navajo
Nation foster care license and for Smith to check two additional references. A.J. had
already completed the foster care “trainings,” and Y.J. could be fully placed with A.J.
before A.J. was officially licensed as a foster parent.
Additionally, according to Smith, A.J.’s home was clean, safe, and appropriate
for Y.J. A.J. lived with her adult son in a two-bedroom home with an addition in back
for which a doorway needed to be cut. Y.J. would sleep in A.J.’s bedroom with her,
which is not uncommon for Navajo. A.J. is a homemaker, which is a traditional
Navajo role, and her children help support her and take care of her bills, which is also
Navajo custom. A.J. receives food stamps and her monthly income varies. Her thirty-
three-year-old son and other family members would provide Y.J.’s care when she
could not, such as when she was helping care for her chronically ill mother and
brother. According to A.J., Y.J. will take the bus to school when she gets older.
Smith testified that the references she contacted for A.J. acknowledge that she
is a good candidate for placement. A.J.’s family, including the family living on the
reservation, are “very close” and were supportive of A.J.’s decision to seek placement
of Y.J. with her. Y.J.’s maternal grandmother, A.J.’s sister-in-law, communicates with
A.J. and has contact with Mother. According to Smith, Y.J.’s maternal grandmother
returns to the reservation “on and off.”26
This evidence renders somewhat curious the Department caseworker’s
26
concern that the Bs would seek an open adoption. Although the trial court could not
27
Smith further testified about the importance of the Navajo culture to Y.J.:
“[I]t’s her whole identity. It’s going to help . . . to know where she comes from, what
her clans are, what . . . Navajo culture traditions there are for her. From . . . birth . . .
to [her] elderly age, she could have the ceremonies, the teachings, in order to . . .
[have] a balance[d] life for her.” Smith explained that children are sacred to the
Navajo and that the tribe is always looking to its children’s future. Smith explained
that contact with Y.J.’s oldest half siblings, especially the oldest who understands the
Navajo language and traditional Navajo foods and customs, would help Y.J.’s cultural
understanding of what it means to be a Navajo girl and woman. It is especially
important to hand down the Navajo language. The Navajo Nation’s concerns about
non-Navajo placement were the loss of cultural and institutional knowledge of the
Navajo Nation and the difficulty for children living outside the reservation to
participate in Navajo ceremonies because they generally are not open to the public.
But Navajo children who do not live on the reservation may participate in traditional
ceremonies with their family. Smith acknowledged that Y.J. would not receive benefits
for being a tribal member but would receive free medical care.
have judicially noticed for its truth the Department’s statement in the affidavit
attached to its removal petition that Y.J.’s maternal grandmother had a CPS history in
New Mexico, see In re R.A., No. 02-18-00185-CV, 2018 WL 5832148, at *8 (Tex.
App.—Fort Worth Nov. 8, 2018, no pet.) (mem. op.), it could have judicially noticed
that the Department had made such an allegation. Nevertheless, it is undisputed that
A.J. does not have contact with Mother.
28
According to Smith, in January 2019, when Mother found out that A.J. was also
interested in placement, Mother told her that she would be satisfied with placement of
Y.J. with either the Bs or A.J. But Smith did not find out about Mother’s affidavit of
relinquishment, in which she again expressed a preference for the Bs, until the day
before trial.
C.B.
C.B. testified that the Bs had found out about Y.J.’s birth through Alan’s
biological paternal grandmother, who is a Cherokee. The Bs keep in touch with her
and the adoptive mother of Mother’s fifth and sixth children, who also have a
Cherokee birth father.
C.B. testified that the Bs had not promised Mother an open adoption but had
not closed the door to possible supervised visitation between Y.J. and Mother if
Mother were to stay sober and was consistent with her promises. In other words, they
were “open to being open.” But C.B. also said that the Bs would comply with any
court order that Mother have no contact with Y.J. Additionally, Mother had never
requested visitation nor had any contact with Alan.
According to C.B., Alan “understands that [Y.J.’s] his sister” and is excited to
see her. She “lights up” around him. All of the Bs’ children are “very playful” with
Y.J., and she likes the attention and interaction. The Bs “feel very strongly that [Y.J.
and Alan] should grow up together and support and love each other” because of their
important sibling bond. The Bs were concerned that if Y.J. were placed with A.J., she
29
might never see Alan again. Their plan was for Y.J. to sleep in a room with Alan until
“it was age appropriate necessary” for her to have her own room.
Although the Bs met with Mother after they found her in the county jail, they
did not ask her to request them for placement, nor did they discuss an open adoption.
C.B. was not present when Mother signed the affidavit of relinquishment, and he did
not ask her to sign it. He did not know where it was signed or created because “[a]ll of
that was handled through her attorney.”
The Bs were trying to learn Navajo culture. They had used age-appropriate
books for that purpose, but because Alan was only three and a half at the time of trial,
the books were more “lifestyle” books. To involve Alan in the Cherokee culture, they
maintained a relationship with his biological family, particularly his biological paternal
grandmother. They had “sought recommendations from her . . . [and] directions
[they] could point him in.” They had attended two public powwows in the
Dallas/Fort Worth area and were educating themselves, as C.B. put it, to “better
educate our child and our children, . . . as a family, what it means to be native, the
history, the culture. . . . [A]s an outsider looking in, as best as we can, that is difficult[,]
and we have always welcomed any resources that are there to help us in that process.”
C.B. acknowledged that because the Cherokee tribe has been more involved in Alan’s
life, he has a stronger connection to that tribe, but the Bs do not prefer one tribe over
another. Alan’s Navajo family had not attempted to contact him, but C.B. said the Bs
30
“would welcome any contact from [that] family to help” raise him. C.B. did not think
that Alan’s Navajo family’s lack of contact with him would change, though.
When asked, “You understand the conundrum here, that we have more than
just one sibling in this picture?” C.B. answered, “Yes.” He acknowledged that “the
problem of trying to prioritize which sibling is most important to have a relationship
with moving forward” was “very complicated.”
J.B.
J.B. acknowledged that the Bs did not know much about Navajo culture. J.B.
had tried to contact Y.J.’s maternal grandmother and had texted her pictures of Alan
at Mother’s request. J.B. testified that Y.J. had visited with the B family one day each
month between September 2018 and January 2019 and once each month for a forty-
eight-hour period between January 2019 and trial.
Summary of the Bs’ adoption report for Alan
The trial court admitted into evidence a favorable 2017 adoption report for the
Bs that CK Family Services had completed for Alan’s foster placement and adoption.
The Department placed Alan with the Bs the day he was removed from Mother’s
care. At the time of the report, the Bs were in their late thirties; they have two
biological children, who were both under the age of ten. C.B. was a college-educated
stay-at-home father, and J.B. was an employed in the medical field with a substantial
monthly income. The interviewer described their marriage as “stable and loving,” their
family as “loving and affectionate,” and their characters as “compassionate.” The
31
home environment was safe; they lived in a four-bedroom, three-bath home with their
children and a dog. Both Bs had passed criminal and child abuse background checks.
Regarding Alan’s biological family, the report stated that the Bs had maintained
phone contact with his paternal grandmother and that they were “open to . . . have
contact, as long as it is appropriate,” with biological family members to ensure he has
a “familial and cultural connection.” Additionally, it stated the Bs “want[ed] to ensure
they learn and implement [Alan’s] culture into their home and lives due to [his] being
Navajo and Cherokee Indian.” At the time, Alan had never met any of his oldest half
siblings.
CK Family Services updated the report in October 2018 after the Bs became
interested in adopting Y.J. The addendum was not as detailed as the original report
but showed no significant changes.
A.J.
A.J. testified that she lives on the Navajo reservation close to many family
members. Y.J.’s four oldest half siblings live with A.J.’s older sister about twenty-
seven miles from her. A.J. sees Y.J.’s oldest half siblings twice a week, but Y.J. would
see them probably every other day. A.J. has a lot of extended family members who
would help with Y.J.’s care and take care of anything she could not.
A.J. said she would follow any order that Y.J. have no contact with Mother;
A.J. had not heard from Mother for many years.
32
A.J. supplements her income by making and selling crafts, and her four sons
and her daughter help her financially, which is normal for Navajo families on the
reservation. A.J. testified that she would be able to support Y.J. financially.
A.J. did not know much about Alan, but Y.J.’s maternal grandmother had told
her “a little bit.” She did not know about Y.J.’s other children in the DFW area. When
asked, “When you were asked about coming out here to visit [Y.J.], has cost been a
consideration -- has cost been a problem for you to be able to come out here to visit
up until now?,” she answered “No.” [Emphasis added.]
Findings
The trial judge made extensive findings on the record and in written findings of
fact and conclusions of law.
On the record, the trial judge stated that he had applied the Holley factors in
deciding who should be Y.J.’s managing conservator. He ordered that Y.J. be enrolled
in a Navajo language class, which the Navajo Nation had a duty to identify, beginning
as soon as possible and continuing until she turned fourteen. The judge acknowledged
that “[w]hen a person leaves a [n]ation, there is an expectation that you will lose some
of your culture. . . . [A]nd there’s expectation your [descendants] will also slowly lose
some of their culture but that’s part of the decision that we make to immigrate to
other cultures and other countries.” He recognized that Y.J.’s Navajo culture is part of
her identity and that preserving culture and heritage can be a struggle. He stated that
“[t]he goals of ICWA are noble and most often what is best for the children.” As for
33
the dual joint managing conservatorship, he explained, “I’m trying to find that mix to
ensure that we give this child every chance possible to maintain ties with . . . her rich
Navajo history and culture, in the meantime, doing what I feel like is best for the child
at this point.” The judge indicated that “a large factor in this [ruling] was the
relationship that she would have with her biological brother who is the closest sibling
in age to her.”
Acknowledging the evidence about the importance of tribal rituals that occur
when a child reaches certain milestones, the trial court said that there is no way to
plan those and he “certainly wish[ed] there was a way for the Court to plan other
things out to make sure she’s in touch with her heritage and not lose sight of that.”
But the judge went on to say that––without regard to any of the parties’ financial
resources––he thought it was in Y.J.’s best interest to live with her half sibling who
was closest to her in age while maintaining her cultural ties to the Navajo Nation. He
stated, “[T]here was no bad situation for [Y.J].”
The trial court signed findings of fact and conclusions of law consistent with its
verbal findings. Specifically, the trial court found and concluded that “it is in the
child’s best interest to enter into this joint managing conservatorship arrangement to
place her in a loving home with her half sibling who is closest to her in age by several
years, while still ensuring the child’s continued connection to Navajo culture and
family.” The trial court also found and concluded that the Bs would provide Y.J.
“with a stable and loving home environment that gives her the care, nurturance,
34
guidance, and supervision necessary for [her] safety and development” and that it was
in Y.J.’s best interest “to have her primary residence in the same home with her
sibling, [Alan], who lives with [them] as their adopted son.” The trial court further
found that it was in Y.J.’s best interest for A.J. to have “the right of possession . . . for
designated summer, weekend, and holiday periods.” Finally, the trial court concluded
that “the best interest of [Y.J.] provides good cause to place [her] with the [Bs]
pursuant to 25 U.S.C. § 1915(b).”
Best-interest determination without consideration of ICWA
The Bs contend that the trial court abused its discretion under Texas law,
without regard to ICWA’s placement preferences, by naming A.J. a joint managing
conservator and mandating a possession and access schedule akin to parents living
more than one hundred miles apart. Their argument discusses the Holley factors and
places great emphasis on Y.J.’s sibling relationship with Alan.
The nonexhaustive Holley factors include
(A) the [child’s] desires . . . ;
(B) the [child’s] emotional and physical needs[,] . . . now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
35
(E) the programs available to assist these individuals to promote the
[child’s] best interest . . . ;
(F) the plans for the child by these individuals or[, if applicable,] by
the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the [parent’s] acts or omissions . . . indicat[ing] that the existing
parent–child relationship is not a proper one; and
(I) any excuse for the [parent’s] acts or omissions . . . .
544 S.W.2d at 371–72 (citations omitted).27 We need not consider (H) and (I) because
whether Y.J. should be returned to her parents is not an issue.
Y.J. was too young to articulate her desires, and the evidence showed that she
had a normal, healthy infant’s response to caregivers and other children. We need not
compare the degree of bonding with Y.J.28 as between the Bs and A.J. because the
evidence showed that Y.J.’s primary bond at the time of trial was with her foster
mother, who had the primary care of and access to Y.J. by virtue of the foster care
placement. There was no evidence that she had any special emotional or physical
27
We employ the Holley factors in reviewing conservatorship orders, in addition
to termination orders. See In re R.M., No. 02-18-00004-CV, 2018 WL 2293285, at *5
(Tex. App.––Fort Worth May 21, 2018, no pet.) (mem. op.).
28
If ICWA applies, federal rules implementing it provide that “[a] placement
may not depart from the preferences based solely on ordinary bonding or attachment
that flowed from time spent in a non-preferred placement that was made in violation
of ICWA.” 25 C.F.R. § 23.132(e) (2016).
36
needs that could not be met by either the Bs or A.J. separately, nor was there any
evidence of a particular emotional or physical danger to her other than theoretical
contact with Mother. Both the Bs and A.J. expressed a willingness to protect Y.J.
from harmful contact with Mother.
The evidence showed that both the Bs were excellent parents. There was not
much evidence specific to A.J.’s parenting abilities, but the evidence showed that she
had her own adult children who helped support her and that she maintained close ties
to her family and extended family. There was not much evidence about any programs
available to assist the Bs and A.J. other than that Y.J. would be entitled to health care
on the reservation and would have access to Arizona Medicaid. She would also have
access to an early intervention program and Head Start. The evidence showed that
Navajo culture includes assisting older tribal members with their needs, and A.J.’s
family would help her with child care. There was also evidence that naming the
Department as managing conservator would have facilitated “financial subsidies” for
Y.J.
The Bs wanted to adopt Y.J. She would be raised in a home with continual
daily access to the half sibling that is closest to her in age, in a loving home with two
other children. The Bs intended to facilitate contact with her two half siblings in the
DFW area and expressed a willingness to provide contact with her other half siblings
and family on the reservation and to educate her in Navajo culture. The Navajo
Nation asked only for placement of Y.J. with A.J.; there was no evidence that A.J. had
37
any plans to adopt Y.J. if the child were to be placed with her. But Y.J. would be
immersed in her Navajo culture and heritage, have weekly visits with four of her
oldest half siblings, and have close contact with her extended Navajo family.
The evidence showed that both homes, individually, would be stable choices
for Y.J., and each would fulfill a different primary need: with the Bs, a home with
daily contact with her half sibling closest in age, the opportunity to see other half
siblings living close by (and possibly her half siblings living on the reservation), and
occasional interaction with the Navajo tribe directed by non-Indian parents; and with
A.J., a home without daily sibling interaction but with frequent contact with her four
oldest siblings and extended family and with immersion in Y.J.’s Navajo culture and
heritage (but with possibly little to no contact with her half siblings in Texas).
Considering the Holley factors separately, then, without considering the sibling-
attachment and contact evidence, the evidence is favorable for either the Bs or A.J. to
provide a home for Y.J. But we are reviewing the trial court’s decision to name all
three nonparent joint managing conservators. No evidence supports the trial court’s
decision that Y.J.’s stability and permanence would be best served by the arrangement
ordered. As the Bs note, the standard possession and access provisions generally exist
for when parents––with whom the child already has an existing relationship––divorce
or are not married and the trial court must order custody in a way that maintains an
already existing bond between the child and those two parents. That is not the case
here. And the arrangement seriously undermines the possibility that Y.J. could ever be
38
adopted. See Tex. Fam. Code Ann. § 162.009 (six-month residency requirement),29 §
162.010 (requiring written consent to adoption by “a managing conservator” unless
“the managing conservator” is a petitioner, but not specifically addressing consent
required when a child has more than one––nonaligned––joint managing conservator),
§ 263.3026 (including as only permanency goal after termination by Department,
“adoption of the child by a relative or other suitable individual”). Thus, here, the joint
managing conservator arrangement does little to promote a stable and permanent
solution for Y.J.
Based on the trial judge’s comments, it is clear that he was trying to place Y.J.
where she would develop and enjoy a daily sibling attachment, have the most access
to all of her half siblings, and still maintain her relationship with and access to her
Navajo culture and extended family. 30 But in doing so, the trial judge fashioned a
remedy that seriously undermines Y.J.’s stability and permanence, particularly in her
younger years.31 Not only is establishing a stable, permanent home for a child a
compelling state interest, the need for permanence is a paramount consideration for a
A.J. could not meet this requirement under the current order.
29
30
We also have no quarrel with the trial judge’s suggestion that this could be a
proper best-interest consideration under Texas law, regardless of ICWA’s application,
especially considering that the record includes expert testimony about the benefit to
Y.J. of being a part of her heritage and culture.
31
For example, without stating why it would be in her best interest, the order
provides that when Y.J. turns five, she may fly alone between the airport nearest the
Bs’ residence and the airport nearest A.J.’s residence.
39
child’s present and future physical and emotional needs. In re J.W., No. 10-18-00344-
CV, 2019 WL 5078678, at *8 (Tex. App.—Waco Oct. 9, 2019, no pet. h.) (mem. op.
on reh’g); see Tex. Fam. Code Ann. § 153.001(a)(2); In re A.B., 412 S.W.3d 588, 609
n.15 (Tex. App.––Fort Worth 2013) (en banc op. on reh’g), aff’d, 437 S.W.3d 498
(Tex. 2014). Accordingly, we hold––without reference to ICWA––that the trial court
abused its discretion by naming the Bs and A.J. the child’s joint managing
conservators with a possession and access schedule akin to parents living more than
100 miles apart.
We sustain the Bs’ fifth issue.
Good cause under ICWA
The trial court likewise abused its discretion in making its alternative good
cause finding under ICWA because the evidence is factually insufficient to support it.
A party seeking to establish good cause for not following ICWA’s placement
preferences for adoptive or preadoptive placement––here, with a member of the
Indian child’s extended family––must bring forth clear and convincing evidence of
good cause. See 25 C.F.R. § 23.132(b) (2016). 32 That good cause must be based on at
32
This standard is set forth in the Bureau of Indian Affairs’ Final Rule, which
clarifies the “minimum Federal standards governing implementation of . . . ICWA to
ensure that ICWA is applied in all States consistent with the Act’s express language,
Congress’s intent in enacting the statute, and to promote the stability and security of
Indian tribes and families.” Id. § 23.101 (2016). The Bs do not raise independent
constitutional challenges to ICWA and the current version of the Final Rule. Thus, in
assuming ICWA’s application for purposes of this part of our analysis, we also
presume––without deciding––the constitutionality of the Final Rule.
40
least one of several considerations; here, the two possible considerations are “[t]he
request of one or both of the Indian child’s parents, if they attest that they have
reviewed the placement options, if any, that comply with the order of preference” and
“[t]he presence of a sibling attachment that can be maintained only through a
particular placement.” Id. § 23.132(c)(1), (3).
To determine if evidence is legally sufficient under the clear-and-convincing
standard, we look at all the evidence in the light most favorable to the challenged
finding to determine whether a reasonable factfinder could form a firm belief or
conviction that the finding is true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
Evidence is factually insufficient under the clear-and-convincing standard if, in light of
the entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction that the finding is true. Id.
Mother’s placement preference
In Mother’s first affidavit stating her preference that Y.J. be placed with the Bs,
she averred that she had reviewed the potential placement with the Colorado couple
and preferred the Bs so that Y.J. would be “placed with[] her brother and his adoptive
family rather than with strangers who live several hundred miles away.” A.J. had not
been identified as a potential placement at that time. Although this evidence is legally
sufficient to meet the clear-and-convincing standard, Mother’s affidavit of voluntary
relinquishment––which also stated her preference for Y.J.’s placement with the Bs but
41
which she signed after A.J. had been identified as a potential placement––did not state
that Mother had reviewed A.J. as a potential placement. And Smith testified that
Mother had indicated at one time that she preferred placement with either the Bs or
A.J. Thus, the evidence is factually insufficient under the clear-and-convincing
standard to support the trial court’s finding of good cause based on a parent’s
preference.
Sibling attachment maintainable only with a particular placement
Y.J. has seven half siblings: Alan who lives with the Bs, the four oldest who live
in Arizona on the reservation, and two who live close to the Bs in the DFW area. The
trial court was clearly concerned with how best to foster all of those sibling
attachments and was faced with an incredibly difficult decision as to how to prioritize
the importance of each of those attachments to Y.J.
The evidence showed that Y.J. was the closest in age to Alan, that she had
visited with him, and that Alan had formed an attachment to her. Although Y.J. was
by all accounts a happy infant with no discernable attachment problems––and
therefore could be expected to “light[] up” when around other small children such as
Alan––the evidence of Alan’s attachment to her shows a benefit of that relationship to
Y.J. 33 as she ages. She would also be living in a home with, and have daily interaction
33
The Navajo Nation attempts to minimize this evidence, arguing that
preservation of sibling attachments should be a guiding concern only when two
siblings had been living together before being removed from a home. We do not
42
with, two nonbiological older siblings. The evidence also shows that the Bs have
cultivated contact with Y.J.’s other two half siblings that do not live in Arizona and
desire to continue that contact. C.B. testified that the Navajo family had not
attempted to contact Alan and that he did not think Y.J. would have much contact
with Alan if she were to be placed with A.J. Although A.J. testified that it had been no
problem to come to Texas up until the time of trial, she had only attended trial and
visited with Y.J. once. There was no evidence she or the family could afford to
maintain cross-country visits with Alan or her other two DFW-area siblings. And Y.J.
would not be living in a home with any of her half siblings in Arizona.
But the evidence also showed that A.J. and Y.J.’s oldest half sibling had visited
with her once before trial and that her close Navajo family was excited at the prospect
of having Y.J. live with A.J. Although the trial court found that the Bs could best
maintain the sibling relationships, it ordered A.J. to pay the cost of Y.J.’s travel to
Arizona after the age of five and to accompany her on all flights during summer
2022. 34 The evidence also showed that even though the oldest half siblings lived about
half an hour from A.J., she saw them frequently and anticipated that Y.J. would see
them every other day. This is in keeping with Smith’s testimony about the importance
agree that the trial court’s consideration of the importance of sibling relationships to a
child when making a best-interest determination is so limited.
34
This provision appears to conflict with another provision in the order
requiring the Bs to deliver Y.J. to A.J.’s residence, and for A.J. to surrender Y.J. at her
residence, for the “four continuous week[]” summer 2022 possession.
43
of family in Navajo culture. Finally, the evidence showed that the Bs wanted to
maintain a relationship between Alan and Y.J. and likely have the financial means to
travel to facilitate visits. Thus, there is conflicting evidence of a sibling attachment that
could be maintained only through a particular placement.
We hold that the evidence regarding sibling attachment conflicts such that the
trial court’s finding that good cause existed to deviate from Section 1915’s placement
preferences is factually insufficient.35 Because the evidence is factually insufficient to
support the trial court’s good cause finding under either of the possible considerations
set forth in the Final Rule, we conclude that the trial court abused its discretion in
making that finding. We thus sustain the Navajo Nation’s fourth issue and overrule
the Bs’ fourth issue.
Conclusion
Having sustained the Navajo Nation’s fourth issue and the Bs’ fifth issue, we
reverse only the part of the trial court’s June 28, 2019 order appointing the Bs and
A.J. joint managing conservators of Y.J., and we remand the case for a new decision
on conservatorship, or adoption, as the case may be. Although we limit remand to the
conservatorship/adoption decision, we do not limit the trial court’s reconsideration of
previously raised legal issues that we have not ruled on, such as ICWA’s
35
Because we determined that the evidence supporting parental consent is
legally sufficient, we need not address the legal sufficiency of the sibling-attachment
factor.
44
constitutionality, or the trial court’s consideration of new issues or evidence raised
regarding conservatorship.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: December 19, 2019
45