In re E.G.L.

• Decision Date: 04 October 2012
• Docket Number: No. 05–11–00854–CV.,05–11–00854–CV.
• Citation: 378 S.W.3d 542
• Parties: In the Interest of E.G.L., a Child.
• Court: Texas Court of Appeals

378 S.W.3d 542

In the Interest of E.G.L., a Child.

No. 05–11–00854–CV.

Court of Appeals of Texas, Dallas.

Aug. 20, 2012.

Rehearing Overruled Oct. 4, 2012.

James S. Latimer, Southlake, TX, for Appellant.

Lon L. Garner, The Garner Firm, McKinney, TX, M. Michael Mowla, M. Michael Mowla, PLLC, Duncanville, TX, for Appellee.

Before Justices O'NEILL, MARTIN RICHTER, and LANG–MIERS.

OPINION

Opinion By Justice LANG–MIERS.

Tasha S. (Mother) and James L. (Father) lived together for a time and had a child, E.G.L. (E.), in 2002. Around 2005, Mother and Father's relationship ended and Mother and Devin H. (Stepfather) moved in together. Mother and Stepfather also had a child, A.F.H. (A.). In 2009, Mother and Stepfather separated, and Stepfather filed this suit to adjudicate his parentage of A., to adjudicate Father's parentage of E., and to seek appointment as both A.'s and E.'s sole managing conservator.

Mother initially contested Stepfather's petition seeking conservatorship of A. and E., but soon thereafter she and Stepfather agreed to become “co-parents” of the children. Father contested Stepfather's petition seeking conservatorship of E. and asked for a jury trial. Before trial, Mother and Stepfather agreed to be appointed joint managing conservators of both children, with Stepfather as the conservator with the exclusive right to designate the primary residence of both children. The only issue submitted to the jury was whether Stepfather or Father should be designated as the conservator with the exclusive right to designate E.'s primary residence. The jury found in favor of Stepfather, and the trial court rendered an order appointing Mother and Stepfather as joint managing conservators of A. and E., with Stepfather having the exclusive right to designate the primary residence of the children, and Father as possessory conservator of E. Father appeals, raising several issues in his pro se brief. We affirm the trial court's order.

Does the Indian Child Welfare Act Apply?

In issue one with multiple sub-issues, Father argues that the Indian Child Welfare Act (ICWA) applies to this custody proceeding and that the trial court erred by not applying its provisions. We disagree.

In 1978, Congress passed the ICWA to address the “rising concern in the mid–1970's [sic] 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, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). Accord Doty–Jabbaar v. Dallas Cnty. Child Servs., 19 S.W.3d 870, 874 (Tex.App.-Dallas 2000, pet. denied). The ICWA was primarily intended to “apply only to situations involving the attempts of public and private agencies to remove children from their Indian families, not to inter-family disputes or divorce proceedings.” Comanche Nation v. Fox, 128 S.W.3d 745, 753 (Tex.App.-Austin 2004, no pet.).

The ICWA states that it applies to a “child custody proceeding,” which it defines as:

(i) “foster care placement” which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;

(ii) “termination of parental rights” which shall mean any action resulting in the termination of the parent-child relationship;

(iii) “preadoptive placement” which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and

(iv) “adoptive placement” which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.

25 U.S.C. § 1903(1) (2001).

Whether the ICWA applies to this proceeding is a matter of statutory interpretation. We review a trial court's interpretation of a statute de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 655–56 (Tex.1989); see Doty–Jabbaar, 19 S.W.3d at 874. In construing a federal statute, federal law mandates that we look first to the statute's language to determine whether the language is plain and unambiguous. Omnibus Int'l, Inc. v. AT & T, Inc., 111 S.W.3d 818, 821 (Tex.App.-Dallas 2003, pet. granted, judgm't. vacated w.r.m.). If the language is clear, we interpret the statute according to its plain language. See id.;Doty–Jabbaar, 19 S.W.3d at 874.

The only definition that is implicated in this proceeding is “foster care placement,” which consists of four requirements: (1) the removal of an Indian child from the child's parent or Indian custodian, (2) temporarily placing the child in a foster home or institution or the home of a guardian or conservator, where (3) the parent or Indian custodian cannot have the child returned upon demand, and (4) parental rights have not been terminated. 25 U.S.C. § 1903(1)(i).

Father argues that “there is no question that this is a child custody proceeding.” But he does not argue how this proceeding satisfies the four prongs of “foster care placement” contained in the ICWA. Stepfather argues that this proceeding did not involve “foster care placement” because the “only issue before the trial court was who should be the conservator of [E.], which means that this case was a ‘custody’ proceeding between private parties.” He also contends that none of the ICWA's provisions are implicated because a parent of E. was appointed joint managing conservator of E.

In Stepfather's petition, he sought sole managing conservatorship of E., which, if granted, would satisfy prongs one, three, and four. But Father does not argue how appointing Stepfather as sole managing conservator of E. satisfies the second prong of “temporary placement in a foster home or institution or the home of a guardian or conservator.” The ICWA does not define “temporary placement.” The plain and ordinary meaning of “temporary” is “lasting for a time only: existing or continuing for a limited time: impermanent, transitory.” Webster's Third New International Dictionary 2353 (1981). And the plain and ordinary meaning of “placement” is “a transfer of custody (as of a minor ...).” Id. at 1728. Based on the common everyday meaning of temporary and placement, Stepfather's petition seeking sole managing conservatorship of E. did not seek “temporary placement” of E.

Other states have held that the ICWA does apply to proceedings between a parent and a nonparent, but those cases did not turn on the plain meaning of the statutory language “temporary placement.” See, e.g., J.W. v. R.J., 951 P.2d 1206, 1208 (Alaska 1998) (ICWA applied to dispute between father and stepfather over custody of Indian child where no question that stepfather was awarded temporary guardianship of child), overruled on other grounds by Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004); Empson–Laviolette v. Crago, 280 Mich.App. 620, 760 N.W.2d 793, 796 (Mich.Ct.App.2008) (ICWA applied to dispute between mother and nonparents where no question that nonparents were appointed temporary guardians of Indian child); In re Guardianship of Ashley Elizabeth R., 116 N.M. 416, 863 P.2d 451, 452–53 (N.M.Ct.App.1993) (ICWA applied to dispute over custody between Navajo Nation and deceased mother's aunt with no discussion of “temporary placement”).

Additionally, the petition sought to establish Father's status as E.'s father, not to remove E. from Father. And after the trial court adjudicated Father as E.'s father and appointed him possessory conservator of E., the court ordered and Texas law imposed certain legal rights and duties on Father with respect to E. SeeTex. Fam.Code Ann. §§ 153.071–.193 (West 2008 & Supp.2012) (setting out possessory conservator's legal rights and duties with respect to child). Consequently, we conclude that the proceeding was not an “action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a conservator.” See Fox, 128 S.W.3d at 753 (concluding ICWA did not apply to child custody modification proceeding in which grandparents sought removal of mother as joint managing conservator and appointment of grandparents as managing conservators and mother as possessory conservator of Indian child). Because we conclude that the ICWA does not apply to this proceeding, we do not need to consider Father's remaining arguments under issue one. We resolve issue one against appellant.

Did Stepfather Have Standing to Seek Custody of E.?

In issue two, Father challenges Stepfather's standing to seek conservatorship of E. We conclude that the trial court did not err when it found Stepfather had standing.

The family code defines who has standing to file an original suit affecting the parent-child relationship. SeeTex. Fam.Code Ann. § 102.003 (West Supp.2012). A party seeking relief “must plead and establish standing within the parameters of the language used in the code.” In re M.K.S.-V., 301 S.W.3d 460, 464 (Tex.App.-Dallas 2009, pet. denied). Because standing is a question of law, we review the trial court's decision on standing de novo. Id.

Stepfather contended that he has standing to file the suit under section 102.003(a)(9). Section 102.003(a)(9) states that an “original suit may be filed at any time by: ... a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition [.]”...