in the Interest of A.M. and A.B., Children

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
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No. 02-21-00313-CV
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IN THE INTEREST OF A.M. AND A.B., CHILDREN
On Appeal from the 322nd District Court
Tarrant County, Texas
Trial Court No. 322-679210-20
Before Sudderth, C.J.; Wallach and Walker, JJ.
Supplemental Memorandum Opinion on Abatement by Justice Wallach
SUPPLEMENTAL MEMORANDUM OPINION ON ABATEMENT
The trial court rendered a judgment terminating the parent–child relationship
between Appellants T.B. (Mother) and B.B. (Father) and their child A.B. (Alan). 1 T.B.
and B.B. appealed the trial court’s order, claiming that the trial court erred by failing
to comply with the mandatory notice provisions of the Indian Child Welfare Act
(“ICWA”). This court and the Texas Department of Family and Protective Services
agreed with T.B. and B.B. In re A.M., No. 02-21-00313-CV, 2022 WL 325473, at
*1 (Tex. App.—Fort Worth Feb. 3, 2022, no pet.) (mem. op.). We consequently
abated these appeals to the trial court so that notice regarding Alan could be sent in
compliance with the ICWA. Id. at *4. We further directed the trial court to enter
findings of fact and conclusions of law regarding whether Alan is subject to the
ICWA. Id.
After holding a hearing, the trial court filed its findings of fact and conclusions
of law in this court. The trial court found that the Department properly notified the
Bureau of Indian Affairs and the six Indian tribes entitled to notification in
compliance with the ICWA. The trial court also found that five of the six tribes
responded to the Department’s ICWA notices and stated that Alan was not enrolled
nor eligible for enrollment in the respective tribe. Further, the trial court found that
the sixth tribe did not respond to the notice after receiving it by certified mail. The
We use aliases to refer to the child and his family members. See Tex. Fam.
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Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
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trial court did not find that T.B. or B.B. had produced any evidence showing that the
ICWA applies to Alan.
Accordingly, the trial court concluded that Alan is not an “Indian child” subject
to the ICWA. See In re R.R., 294 S.W.3d 213, 226 (Tex. App.—Fort Worth 2009, no
pet.) (holding that if a tribe fails to respond to the Department’s proper ICWA
notification, the burden shifts to the party asserting the child’s status as Indian to
show that the ICWA applies); In re Baby Boy Doe, 849 P.2d 925, 931 (Idaho 1993)
(explaining that if, after proper notice, the state court does not receive a conclusive
determination from the tribe or the BIA regarding a child’s eligibility for tribal
membership, the trial court must make its own determination, and the burden of
producing the necessary evidence on this issue is on the party asserting the
applicability of the ICWA).
Because neither T.B. nor B.B. disputes the trial court’s findings, we overrule
T.B.’s first issue and B.B.’s second issue claiming that the trial court erred in rendering
its termination order because the Department failed to comply with the ICWA notice
requirements. See R.R., 294 S.W.3d at 217, 219–21. Additionally, we overrule B.B.’s
first issue claiming that the evidence is legally insufficient to support the termination
order because the trial court did not meet the ICWA requirements.
Having overruled T.B.’s and B.B.’s issues, we affirm the trial court’s judgment.
See id. at 237–38.
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/s/ Mike Wallach
Mike Wallach
Justice
Delivered: March 31, 2022
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