In re Interest of K.S.

• Decision Date: 21 August 2014
• Docket Number: No. 12–14–00061–CV.,12–14–00061–CV.
• Citation: 448 S.W.3d 521
• Parties: In the Interest of K.S., a Child.
• Court: Texas Court of Appeals

448 S.W.3d 521

In the Interest of K.S., a Child.

No. 12–14–00061–CV.

Court of Appeals of Texas, Tyler.

Aug. 21, 2014.

Marianne T. Warren, for Appellant.

Eric Tek Tai, for Appellee.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

OPINION

JAMES T. WORTHEN, Chief Justice.

D.S. appeals the termination of her parental rights to K.S. and raises seven issues on appeal. We affirm.

Background

D.S. is the mother of K.S., who was born on March 14, 2011; both are from Oklahoma City, Oklahoma.¹ D.S. and K.S. had been traveling through Texas when a report of neglectful supervision was reported at a Texas hospital, which led to the ultimate removal of K.S. from D.S.'s custody. On January 7, 2013, the Department of Family and Protective Services (the Department or CPS) filed a petition for protection of K.S., for conservatorship, and for termination in a suit affecting the parent-child relationship. That same day, the trial court signed an emergency order naming the Department as temporary sole managing conservator of K.S. On January 14, 2013, a representative from the Cherokee Nation advised the trial court that it was intervening in the case on K.S.'s behalf. The hearing concluded the next day, and the trial court ordered the Department to continue as temporary managing conservator of K.S.

On January 27, 2014, a jury was selected and the case proceeded to trial.² Ultimately, it was determined that the parent-child relationship between D.S. and K.S. should be terminated. This appeal followed.

Indian Child Welfare Act

At the time of trial, D.S. was a member of the Cherokee tribe. Thus, K.S. qualifies as an “Indian child” under the Indian Child Welfare Act (ICWA).³ See Indian Child Welfare Act of 1978, 25 U.S.C.A. §§ 1901 –1963 (West, Westlaw current through P.L. 113–125 (excluding P.L. 113–121 )).

In 1978, Congress recognized that the United States has a direct interest in protecting Indian children who are members of or are eligible for membership in an Indian tribe. Congress declared it this Nation's policy

to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in ... homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

See 25 U.S.C.A. § 1902.

The protection of the tribal interest is at the core of the ICWA, which recognizes that the tribe has an interest in the child that is distinct from, but on a parity with, the interest of the parents. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52, 109 S.Ct. 1597, 1610, 104 L.Ed.2d 29 (1989) (quoting In re Adoption of Halloway, 732 P.2d 962, 969–70 (Utah 1986) ).

D.S. raises seven issues relating to the trial court's application of the ICWA to this case.

Notice Requirements

In her first issue, D.S. contends that the trial court erred by failing to provide proper notification of the pending proceedings and right of intervention in accordance with the required notice procedures of the ICWA.⁴ The trial court's application of the ICWA is a question of law, which we review de novo. See also In re J.J.C., 302 S.W.3d 896, 902 (Tex.App.-Waco 2009, no pet.).

Applicable Law

Section 1912(a) requires that, in any involuntary proceeding in a state court involving an Indian child, “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.” 25 U.S.C.A. § 1912(a). An “Indian child's tribe” means “(a) the Indian tribe in which an Indian child is a member or eligible for membership or (b), in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts[.]” 25 U.S.C.A. § 1903(5).

Discussion

Although D.S. is a member of the Cherokee Nation, the record shows that she may have ties to the Choctaw Nation tribe because D.S. claimed that her father was affiliated in some way with that tribe. Cherokee Nation had actual notice of the proceedings involving K.S., but there is no evidence that Choctaw Nation was ever notified of the proceedings.

D.S. contends that the proceedings should be invalidated because Choctaw Nation did not receive notice and because the notice afforded to Cherokee Nation did not comply with Section 1912(a). Due to D.S.'s membership in Cherokee Nation and ties with Choctaw Nation, K.S. could be a member of or eligible for membership in both tribes, but the trial court did not determine which tribe was K.S.'s tribe. We abated the appeal for the trial court to conduct a hearing to determine K.S.'s tribe under the ICWA.⁵

The supplemental clerk's and reporter's records show that the trial court conducted the hearing to determine K.S.'s tribe on July 9, 2014. Both tribes received notice of the hearing to determine K.S.'s tribe by registered mail with return receipt requested. Choctaw Nation did not file a response or appear at the hearing.⁶ The Cherokee Nation representative, Kristi Crawford, appeared and testified that K.S. has contacts with Cherokee Nation through her mother, grandmother, and great grandparents. She testified that as a member of the Cherokee Nation tribe, D.S. has received assistance prior to and during the pendency of this case. Crawford further testified that a “cultural packet” had been sent to K.S.'s foster home so the foster mother could teach K.S. about her culture.

Crawford had no knowledge about the extent to which D.S.'s father was affiliated with Choctaw Nation, and there is no evidence that K.S. has any significant contacts with Choctaw Nation. Ultimately, the trial court issued written findings and designated Cherokee Nation as K.S.'s tribe. Because Cherokee Nation is K.S.'s tribe for purposes of the ICWA, we limit our discussion of the notice requirements as they pertain to the Cherokee Nation.

Cherokee Nation's Actual Notice

Cherokee Nation became involved “very early” in this case, but there is no showing that the Department strictly complied with Section 1912(a)'s requirements.⁷ Cherokee Nation had a representative attend court hearings and transport D.S. to Texas for visits and services, and conducted home visits to D.S.'s apartment in Oklahoma City. However, Section 1914 provides that an order of termination may be invalidated for failing to comply with Section 1912. See 25 U.S.C.A. § 1914. Thus, the question before us is whether the trial court's order should be invalidated for failing to strictly comply with Section 1912(a)'s notice requirements when Cherokee Nation had actual notice of, and involvement in, these proceedings.

i. Texas Cases

The Fort Worth and Waco courts of appeals have held that strict compliance with the ICWA notice provisions is required. See In re J.J.C., 302 S.W.3d at 902 ; In re R.R., Jr., 294 S.W.3d 213, 224–25 (Tex.App.-Fort Worth 2009, no pet.). But in those cases, the children had not been determined to be “Indian children,” and the ultimate question was whether the ICWA applied to the termination proceedings. See In re J.J.C., 302 S.W.3d at 902 ; In re R.R., Jr., 294 S.W.3d at 227. The courts of appeals “conditionally affirmed” the termination orders, holding that they would affirm if, after proper notice and a hearing, the trial court determined that the children were not Indian children. In re J.J.C., 302 S.W.3d at 902 ; In re R.R., Jr., 294 S.W.3d at 227. But if the trial court determined that the children were Indian children, the courts of appeals would reverse the termination order and remand for a new trial. In re J.J.C., 302 S.W.3d at 902 ; In re R.R., Jr., 294 S.W.3d at 227.

We are unaware of any Texas cases involving the termination of parental rights under the ICWA where the Indian child's tribe received actual notice of the proceedings, but did not receive the notice required by Section 1912(a).

ii. The BIA Guidelines and Other Jurisdictions

After Congress passed the ICWA, 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. SeeBureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584 (Nov. 26, 1979). The Guidelines state that notice is necessary and that certain information in the notice is required “so the persons who receive notice will be able to exercise their rights in a timely manner.” Id., 44 Fed.Reg. 67,594. But the Guidelines do not address whether the policy interests of the ICWA can be realized upon a tribe's actual notice of, and involvement in, a proceeding without having received the notice specified in Section 1912(a). See generally id.

Courts from other jurisdictions have refused to invalidate termination orders for failure to satisfy Section 1912(a)'s requirements when the interested tribe had actual notice of the proceedings. See In re T.M., 245 Mich.App. 181, 628 N.W.2d 570, 575 (2001), overruled on other grounds by In re Morris, 491 Mich. 81, 815 N.W.2d 62 (2012) ; In re D.M., 685 N.W.2d 768, 771 (S.D.2004) ; Matter of Welfare of M.S.S., 86 Wash.App. 127, 936 P.2d 36, 40, review denied, 133 Wash.2d 1008, 943 P.2d 663 (1997), cert. denied sub nom., Sather v. Wash., 523 U.S. 1098, 118 S.Ct. 1564, 140 L.Ed.2d 798 (1998) (“Failure to provide the required notice mandates remand unless the tribe has participated in the proceedings or expressly indicated that it has no interest in the proceedings.”).

Most recently, the Supreme Court of Nevada determined that an order of termination could not be invalidated for failing to provide the notice required by Section 1912(a) of the ICWA because the parent and...