in the Interest of X. E. v. a Child

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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No. 08-20-00160-CV
IN THE INTEREST OF §
Appeal from the
§
X.E.V., 65th District Court
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of El Paso County, Texas
A CHILD. §
(TC# 2019DCM2502)
§
MEMORANDUM OPINION
Appellant X.Y. (Mother) has appealed a judgment terminating her parental rights to child
X.E.V. The parties agree that X.E.V. is an Indian child for purposes of the Indian Child Welfare
Act (ICWA)1 and that X.E.V. is of purported Cherokee and Ketchikan ancestry. Mother raises
seven issues on appeal. Four issues concern alleged ICWA procedural violations.
The ICWA is a federal law that applies in state court termination cases when a court knows
or has reason to know that an Indian child is involved in a child custody proceeding. 25 U.S.C.A.
§ 1912(f). Congress enacted the ICWA in 1978 in response to a rising concern over the
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25 U.S.C.A. §§ 1901 – 1963.
consequences to Indian tribes, Indian families, and children of abusive child welfare practices that
resulted in the separation of Indian children from their families and tribes, and the Act is based on
a policy that, where possible, an Indian child should remain in the Indian community See In the
Interest of V.L.R., 507 S.W.3d 788, 792 (Tex.App.—El Paso 2015, no pet.) (citing Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989)).
Substantively, the ICWA resets the standard of proof in termination cases from clear and
convincing evidence to beyond a reasonable doubt. 25 U.S.C.A. § 1912(f); see also In the Interest
of V.L.R., 507 S.W.3d at 795 (holding that the beyond a reasonable doubt standard applicable in
criminal and juvenile delinquency proceedings applies in ICWA termination proceedings). The
ICWA also sets out certain procedural steps that must be followed in a custody proceeding
involving a presumptive Indian child2 before a judgment terminating parental rights may be
entered. See In the Interest of S.J.H., 594 S.W.3d 682, 686–87 (Tex.App.—El Paso 2019, no pet.).
As is relevant to this appeal, the ICWA requires the parental rights termination movant—
here, the Texas Department of Family and Protective Services (the Department)—to notify
relevant tribal authorities when it seeks to terminate the parental rights in the case of a known or
suspected Indian child:
In any involuntary proceeding in a State court, where the court knows or has reason
to know that an Indian child is involved, the party seeking the foster care placement
of, or termination of parental rights to, an Indian child shall notify the parent or
Indian custodian and the Indian child’s tribe, by registered mail with return receipt
requested, of the pending proceedings and of their right of intervention. If the
identity or location of the parent or Indian custodian and the tribe cannot be
determined, such notice shall be given to the Secretary in like manner, who shall
have fifteen days after receipt to provide the requisite notice to the parent or Indian
2
When the record is inconclusive as to whether a child is an Indian child under the ICWA, a court must treat the child
as an Indian child unless or until it is determined on the record that the child does not meet the definition. In the
Interest of S.J.H., 594 S.W.3d at 688. The ICWA does not establish which persons are considered to be members of a
tribe or eligible for membership in a tribe; that determination lies solely with the tribe itself based on the tribe’s internal
laws and criteria. In re J.J.C., 302 S.W.3d 896, 900 (Tex.App.—Waco 2009, no pet.).
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custodian and the tribe. No foster care placement or termination of parental rights
proceeding shall be held until at least ten days after receipt of notice by the parent
or Indian custodian and the tribe or the Secretary: Provided, That the parent or
Indian custodian or the tribe shall, upon request, be granted up to twenty additional
days to prepare for such proceeding.
25 U.S.C.A. § 1912(a).
In its Appellee’s Brief, the Department has conceded there is reversible error because the
record does not indicate that required ICWA notices were ever sent to Cherokee and Ketchikan
tribal authorities, meaning that the trial court’s judgment must be reversed and a final termination
judgment withheld until notice is given to Cherokee and Ketchikan authorities and those
authorities determine whether X.E.V. meets membership eligibility requirements under internal
tribal law and whether intervention in these proceedings is necessary.
In accordance with our previous decision in In the Interest of S.J.H., 594 S.W.3d at 691-
92, we reverse the trial court’s judgment based on the failure to notify relevant tribal authorities
under the ICWA and remand for further proceedings consistent with this opinion.
GINA M. PALAFOX, Justice
November 23, 2020
Before Rodriguez, J., Palafox, J., and Chew, C.J. (Senior Judge)
Chew, C.J. (Senior Judge), sitting by assignment
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