In re Interest of T.R.

• Decision Date: 04 April 2016
• Docket Number: No. 04–15–00639–CV,04–15–00639–CV
• Citation: 491 S.W.3d 847
• Parties: In the Interest of T.R.
• Court: Texas Court of Appeals

491 S.W.3d 847

In the Interest of T.R.¹

No. 04–15–00639–CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: April 4, 2016

Joe K. Bohac, Law Office of Joe K. Bohac, San Antonio, TX, for Appellant.

Mary Beth Welsh, Assistant Criminal District Attorney, Nicolas A. LaHood, District Attorney, Bexar County, San Antonio, TX, for Appellee.

Sitting: Sandee Bryan Marion, Chief Justice, Marialyn Barnard, Justice, Patricia O. Alvarez, Justice

OPINION

Patricia O. Alvarez, Justice

Appellant A.M.C.² appeals the trial court's order terminating her parental rights to her child, T.R. A.M.C. raises two issues on appeal: (1) the trial court erred in failing to comply with the Indian Child Welfare Act; and (2) the evidence is legally and factually insufficient to support the trial court's findings that termination of A.M.C.'s parental rights is in T.R.'s best interest. We conclude that, based on a review of the evidence, the trial court did not err in failing to provide notice under the Indian Child Welfare Act and that the evidence is both legally and factually sufficient to support the best interest determination. Accordingly, we affirm the trial court's order.

Factual and Procedural Background

Because the only child at issue in this appeal is T.R., we limit our discussion to the facts relating to T.R.

In February 14, 2012, following two attempted suicides by A.M.C. while her minor children were present, and A.M.C.'s positive drug tests, the Texas Department of Family and Protective Services was named temporary managing conservator of T.R. and his brother. The Department's original service plan and goal was to return the children to A.M.C. The caseworker's original progress report, filed on July 19, 2012, indicated that A.M.C. denied that either T.R. or his brother had American Indian status.

The case remained pending in different stages before the trial court for almost four years. During that time, A.M.C. participated, off and on, in different services offered by the Department. A.M.C.'s mental health issues and continued drug use were constant sources of concern for her caseworker and the trial court. On March 4, 2013, following a mediated settlement agreement, the trial court entered Final Orders appointing the Department as permanent managing conservator for both children and A.M.C. as possessory conservator. A.M.C. continued to deny American Indian Child status for both children. On February 26, 2014, T.R.'s brother aged out of foster care.

On January 14, 2015, for the first time since the children were removed in 2012, and in direct contradiction to all of the proceedings and status reports filed after T.R.'s removal, T.R.'s great-grandmother reported that T.R. had relatives that were full blooded Native Americans.

On March 3, 2015, the Department filed a Petition to Modify the trial court's March 4, 2013 Final Orders seeking termination of A.M.C.'s parental rights. After several more hearings and trial settings, the matter was called to trial on July 14, 2015, and testimony was presented by the Department. The matter was reset for August 28, 2015, and additional testimony was heard by the trial court.

On September 24, 2015, the trial court signed a termination order concluding that termination of A.M.C.'s parental rights was in T.R.'s best interest and further found that the Department's motion to terminate parental rights should be granted under Texas Family Code sections 161.001(b)(1)(E), (N), and (O). See Tex. Fam.Code Ann. § 161.001(b)(1)(E), (N), (O); (b)(2). This appeal ensued.

We first address A.M.C.'s contention that the trial court failed to comply with the Indian Child Welfare Act.

Indian Child Welfare Act

The Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 –63 (2012), applies to an involuntary child custody proceeding pending in a state court when “the court knows or has reason to know that an Indian child is involved” in a child custody proceeding. 25 U.S.C. § 1912(a) ; In re R.R. Jr., 294 S.W.3d 213, 217 (Tex.App.–Fort Worth 2009, no pet.) ; Doty – Jabbar v. Dall. Cty. Child Protective Servs., 19 S.W.3d 870, 874 (Tex.App.–Dallas 2000, pet. denied). The Act articulates a federal policy that, where possible, an Indian child should remain in the Indian community. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36–37, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). The ICWA's goal is to provide procedural and substantive standards for child custody proceeding; it includes a termination of parental rights action. 25 U.S.C. § 1903(1)(ii) ; Miss. Band of Choctaw Indians, 490 U.S. at 36, 109 S.Ct. 1597.

A. Standard of Review

The trial court's application of the ICWA is reviewed de novo. See In re J.J.C., 302 S.W.3d 896, 902 (Tex.App.–Waco 2009, order) ; In re W.D.H., 43 S.W.3d 30, 33 (Tex.App.–Houston [14th Dist.] 2001, pet. denied).

B. Arguments of the Parties

A.M.C. contends the record is void of any evidence of notice to either one of the tribes or the Bureau of Indian Affairs, as required by 25 C.F.R. § 23.11. The State counters that no evidence was ever presented that T.R. was an Indian child within the meaning of the ICWA.

C. Notice Requirements under the Indian Child Welfare Act

Under the ICWA, an Indian tribe is entitled to notice of a custody proceeding involving an Indian child. See 25 U.S.C. § 1912(a). It is the duty of the trial court and the Department to send notice in any involuntary proceeding “where the court knows or has reason to know that an Indian child is involved.” 25 C.F.R. § 23.11(a). A violation of the ICWA notice provisions may be cause for invalidation of the termination proceedings at some later, distant point in time. See 25 U.S.C. § 1914 (noting that Indian child's tribe may petition any court of competent jurisdiction to invalidate such action); In re W.D.H., 43 S.W.3d at 38–39 (recognizing a parent possesses standing under ICWA to challenge adequacy of notice even if tribe declined to join suit).

Because the termination proceeding here will likely result ultimately in T.R.'s adoption by his current placement, strict compliance with the notice provisions of the ICWA is required. See In re J.J.C., 302 S.W.3d at 902 (remanding because strict compliance to the notice requirement was not met); In re R.R. Jr., 294 S.W.3d 213, 224–25 (Tex.App.–Fort Worth 2009, no pet.) (stating substantial compliance with notice requirement insufficient).

D. Analysis

We, thus, turn to the information available to the trial court at the time of the termination proceedings.

1. Documentation Prior to July 14, 2015

The record before this court includes a multitude of progress reports filed by the Department caseworkers. From February of 2012 to January of 2015, each of these reports indicated “[T.R.]'s American Indian child status denied by [A.M.C.]” On January 28, 2015, the caseworker's report, for the first time, indicated the following:

According to great grandmother, [I.C.], she has two relatives that were full blooded Native Americans. One was from the Cherokee Nation and the other from the Choctaw Nation. [I.C.] reports that there is no registered member in her family under the Choctaw Nation. [I.C.] reports she is registered in the Cherokee tribe; however, this particular tribe is not recognized by Congress. The tribe is from Arkansas and it is a “no name” Cherokee tribe because it is not yet recognized. [I.C.] reports none of her children or grandchildren were registered for any tribe.

On June 29, 2015, A.M.C.'s attorney asserted, for the first time, a motion for continuance contending as follows:

[T.R.'s brother], is a child of Native American Heritage; that neither the Bureau of Indian Affairs nor the tribe to which the child claims as heritage [has] been notified, and none of the requirements set forth in the Indian Child Welfare Act have been followed, and this court therefore has no jurisdiction to hear this matter until the requirements of the Indian Child Welfare Act have been adhered to by the Petitioner.

We note the record before this court does not include a similar designation by A.M.C.'s attorney regarding T.R., the only child at issue in this appeal.

2. Trial Proceedings: July 14, 2015

On July 14, 2015, prior to the start of testimony, A.M.C.'s attorney requested a continuance based the trial court's failure to comply with the notice requirement under the ICWA. The Department responded as follows:

...the issue involving the Indian Child Welfare Act was looked into and researched. ICWA only applies when there is a case involving a federally recognized tribe, and a family member who is biologically connected to the tribe who is a registered member of that federally recognized tribe. Grandmother in this instance was unable to establish membership of the Choctaw Nation. Her children and grandchildren, therefore, would not be eligible.

Additionally, there had been discussions previously with mom and with the grandmother about this issue, and they do not qualify.

This issue was looked into in the past as well in this case. So it was not just recently investigated. I believe it was looked into many, many months ago as well.

The trial court acknowledged both the investigation performed by the Department and the previous discussions pertaining to whether ICWA was applicable

3. Recognized Indian Tribe

As noted above, beginning in January of 2015, the Department status reports indicated that T.R.'s great-grandmother was possibly from Chocktaw Nation descent. Importantly, however, the ICWA's requirements for notification and determination of Indian status apply only when “the court knows or has reason to know that an Indian child is involved.” 25 U.S.C. § 1912(a). The question before us, then, is whether the trial court correctly determined T.R. was not an Indian child pursuant to the ICWA. See In re Trever I., 973 A.2d 752, 758 (Me.2009) (noting that “the party asserting the applicability of the ICWA has the burden to provide sufficient information to at least put the court or Department on notice that...