in the Interest of W.L., a Child

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
Nos. 06-22-00011-CV &
06-22-00012-CV
IN THE INTEREST OF M.A. AND A.A., CHILDREN
&
IN THE INTEREST OF W.L., A CHILD
On Appeal from the 76th District Court
Camp County, Texas
Trial Court Nos. CPS-20-03563 & CPS-18-03104
Before Morriss, C.J., Stevens and van Cleef, JJ.
ORDER
As a result of petitions filed by the Texas Department of Family and Protective Services,
the trial court terminated Father’s parental rights to M.A., A.A., and W.L.1 Father appeals. We
abate these appeals to allow the trial court the opportunity to comply with the Indian Child
Welfare Act (ICWA).
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. & abatement order) (citing 25 U.S.C.A.
§ 1912(a)); 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)). “The
ICWA, however, does not define what constitutes being a ‘member’ or ‘being eligible for
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Father’s parental rights to M.A. and A.A. were terminated in the trial court’s cause number CPS-20-03563, which
is on appeal under our cause number 06-22-00011-CV. His parental rights to W.L. were terminated in the trial
court’s cause number CPS-18-03104, which is on appeal under our cause number 06-22-00012-CV. The two cases
were consolidated for trial.
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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)). Under the BIA Guidelines, “[p]roceedings 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
[BIA] 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’”)). “Circumstances under which a state court has
reason to believe a child involved in a child custody proceeding is an Indian include [when] . . .
(i) [a]ny party to the case . . . informs the court that the child is an Indian child . . . [and]
(ii) [a]ny 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
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Department to send notice in any involuntary proceeding ‘where the court knows or has reason
to know that an Indian child is involved.’” Id. (quoting 25 C.F.R. § 23.11). “Section 23.11 also
requires that the notice be sent to the ‘appropriate Regional Director’ and the Secretary of the
Interior.”2 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)).
Here, the Department’s petition stated for M.A. and A.A. that “[a]n inquiry regarding the
child or family’s possible Indian ancestry is not complete.” In status reports to the court, the
Department stated that M.A. and A.A. had possible American Indian child status as reported by
Mother and Father and that W.L. had “possible American Indian child status as reported by”
Father. The Department further acknowledged, in six permanency reports, that Mother and
Father reported that the children had possible American Indian child status. Mother’s and
Father’s reports and the Department’s knowledge of their reports 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
2
The appropriate regional director is determined by application of the BIA Guidelines and the ICWA. Section 23.11
of the Code of Federal Regulations states:
Notice must include the requisite information identified in § 23.111, consistent with the
confidentiality requirement in § 23.111(d)(6)(ix). Copies of these notices must be sent to the
appropriate Regional Director listed in paragraphs (b)(1) through (12) of this section by registered
or certified mail with return receipt requested or by personal delivery and must include the
information required by § 23.111.
25 C.F.R. § 23.11. Notices must comply with Section 23.111, including the requirement to list “[a]ll names known
(including maiden, married, and former names or aliases) of the parents.” 25 C.F.R. § 23.111(d).
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“seek verification of the child[ren]’s status from either the Bureau of Indian Affairs or the
child[ren]’s tribe.” BIA Guidelines, 44 Fed. Reg. at 67,586. “The notice provisions are . . .
mandatory.” In re C.C., 2017 WL 2822518, at *3.
“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(“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’”)).
Notices must comply with Section 23.111 and must include:
(1) The child’s name, birthdate, and birthplace;
(2) All names known (including maiden, married, and former names or
aliases) of the parents, the parents’ birthdates and birthplaces, and Tribal
enrollment numbers if known;
(3) If known, the names, birthdates, birthplaces, and Tribal enrollment
information of other direct lineal ancestors of the child, such as grandparents; and
....
(5) A copy of the petition, complaint, or other document by which the child-
custody proceeding was initiated . . . .
25 C.F.R. § 23.111(d).
Thus, because the inquiry required by the ICWA is necessary here, we abate the appeals
in cause numbers 06-22-00011-CV and 06-22-00012-CV, with the following instructions:
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(1) the trial court shall provide, no later than August 30, 2022, proper notices that
comply with the ICWA’s statutory notice requirements discussed herein;
(2) the trial court shall thereafter conduct a hearing in each of these matters, no later
than September 27, 2022, to determine whether any or all of M.A., A.A., or W.L.
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 any or all of M.A., A.A., or W.L. are
Indian children;
(4) the reporter’s record from the hearing shall be filed in each appeal pending in this
Court no later than October 4, 2022; and
(5) a supplemental clerk’s record (including any orders and findings resulting from
the ICWA hearing) shall be filed in each appeal pending in this Court no later
than October 4, 2022.
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.
These appeals will be reinstated in this Court following the filing of the supplemental clerk’s
records.
IT IS SO ORDERED.
BY THE COURT
DATE: August 17, 2022
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