In re J.S.

Decision Date17 September 2021
Docket Number07-21-00110-CV
PartiesIN THE INTEREST OF J.S., G.S., AND I.F., CHILDREN
CourtCourt of Appeals of Texas

On Appeal from the County Court at Law Number 2 Potter County Texas Trial Court No. 93, 891-2-FM; Honorable Carry Baker Presiding

Before PIRTLE and PARKER and DOSS, JJ.

MEMORANDUM OPINION

Patrick A. Pirtle Justice

Appellant S.F., the mother of J.S., G.S., and I.F., appeals from the trial court's order terminating her parental rights to her children.[1] Through four issues, she argues (1) the case must either be reversed or remanded for failure to comply with the notice requirements of the ICWA[2] and because the evidence was legally and factually insufficient to support termination of her parental rights pursuant to (2) subsection 161.001(b)(1)(D), (3) subsection 161.001(b)(1)(O), and (4) subsection 161.001(b)(1)(P) of the Texas Family Code. We will affirm.

Background

The underlying matter originally involved five children; however, only S.F., the mother of J.S., G.S., and I.F., has appealed. Three of the children, J.S., G.S., and I.F., share one mother (S.F.) and two of the children, E.F. and H.F., have another (B.O.).[3]I.F., E.F., and H.F. share the same father while J.S. and G.S. have a different father.[4] At the time of the final hearing, J.S. was fourteen years old, G.S. was eleven years old, and I.F. was ten years old. By the time of the hearing, the children were placed with fictive kin, F.L., a woman the children have known their "entire life, they consider her their sister."

On April 29, 2019, the Texas Department of Family and Protective Services received information alleging that S.F. and her husband were abusing methamphetamine. They were locking themselves in the bedroom of their home to use the drug. It was reported that the house was a mess and there were meth pipes in drawers in the home. There were also allegations of domestic violence during which S.F. called a family member to take the children from the home for their protection. The children did not want to return home due to the parental fighting and drug use. In mid-May, the Department received information that one of the children was afraid to be home and afraid to sleep because the parents were using methamphetamine and not protecting at least one of the younger children from one of the older children. A few days later, the Department received more information regarding these children, this time informing them that two of the children had an ongoing problem with lice and treatment was not being given. The Department discovered that the parents had a prior history regarding drug addiction, family violence, and non-compliance with the Department. A Department investigator also became aware that the children were removed from the care of S.F. and the father in 2009, following an injury to G.S. in which she sustained broken ribs and a skull fracture.

In December 2019, the Department filed an Original Petition for Protection of a Child, for Conservatorship, and in the Alternative, for Termination in Suit Affecting the Parent-Child Relationship. The court held a final hearing on the petition on January 28 and 29, 2021. Following the hearing, the court issued a final order terminating S.F.'s parental rights to J.S., G.S., and I.F. The court found that the Department established by clear and convincing evidence that S.F. (1) engaged in conduct or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being; (2) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the children; and (3) used a controlled substance, as defined by chapter 481 of the Texas Health and Safety Code, in a manner that endangered the health or safety of the children. Tex. Fam. Code Ann. § 161.001(b)(1)(D), (O), (P). The trial court also found that termination of S.F.'s parental rights was in the children's best interests. Tex. Fam. Code Ann. § 161.001(b)(2).

Analysis
Standard of Review

A trial court may terminate parental rights after finding by clear and convincing evidence that the parent's acts or omissions satisfy at least one predicate ground for termination and that termination is in the children's best interests. See Tex. Fam. Code Ann. § 161.001(b)(1), (2). "Clear and convincing evidence" is "proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. § 101.007.

The heightened burden of proof in parental termination cases "gives rise to a concomitantly heightened standard of appellate review." In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020) (per curiam). When the standard is clear and convincing, the distinction between legal and factual sufficiency "lies in the extent to which disputed evidence contrary to a finding may be considered." In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). When performing a legal sufficiency review, the reviewing court "cannot ignore undisputed evidence contrary to the finding" but "must otherwise assume the factfinder resolved disputed facts in favor of the finding." Id. at 630-31. Evidence is legally insufficient if, after conducting this review, the reviewing court concludes that no reasonable fact finder could form a firm belief or conviction that the matter that must be proven is true. In re Z.N., 602 S.W.3d at 545 (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).

However, a factual sufficiency review requires weighing disputed evidence contrary to the finding against all the evidence supporting the finding. In re A.C., 560 S.W.3d at 631. The reviewing court must consider whether the "disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding." Id. Evidence is factually insufficient if "the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true." Id. (citing In re J.F.C., 96 S.W.3d at 266). Under both standards, the reviewing court defers to the trier of fact's determinations on the credibility of the witnesses "so long as those determinations are not themselves unreasonable." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004)).

Issue One-Notice under ICWA

S.F.'s first issue is relevant only to one of her children, I.F I.F.'s father testified at the final hearing and stated, "I got real strong Indian blood in me, bro." The father said he believed he was affiliated with the Zuni Tribe. He later said his mother informed him his great-grandfather was Apache. He also said the family is waiting for the grandfather to register with the Tribe and then the children can be tested. On appeal, S.F. argues that while the Apache Tribe was notified and returned a letter stating that the father and I.F. are not members of the Tribe, no notice was sent to the Zuni Tribe. S.F. argues that under the ICWA proceedings and guidelines, notice must be given to each tribe in which the child is a member or is eligible for membership. Notice here was sent only to the Apache Tribe and accordingly, she asserts, this matter must be reversed or remanded for the proper notice to be provided. Under the circumstances of this case, we disagree.

The ICWA was passed to address the "rising concern . . . 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." In re A.E., No. 05-17-00425-CV, 2017 Tex.App. LEXIS 9883, at *7 (Tex. App.-Dallas Oct. 20, 2017, pet. denied) (mem. op.) (citing In re E.G.L., 378 S.W.3d 542, 545 (Tex. App.-Dallas 2012, pet. denied) (quoting Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)). The ICWA "articulates a federal policy that, where possible, an Indian child should remain in the Indian community." In re A.E., 2017 Tex.App. LEXIS 9883, at *8 (citing In re T.R., 491 S.W.3d at 850 (citing Miss. Band of Choctaw Indians, 490 U.S. at 36-37). Pursuant to the ICWA, an Indian tribe is entitled to notice of a custody proceeding involving an Indian child. In re A.E., 2017 Tex.App. LEXIS 9883, at *8 (citing In re D.D., No. 12-15-00192-CV, 2016 Tex.App. LEXIS 2091 (Tex. App.-Tyler Feb. 29, 2016, no pet.) (mem. op. & abatement order) (citing 25 U.S.C. § 1912(a)).

The ICWA applies to an involuntary child custody proceeding pending in state court when "the court knows or has reason to know that an Indian child is involved" in a child custody proceeding. In re A.E., 2017 Tex.App. LEXIS 9883, at *8 (citing 25 U.S.C. § 1912(a); Doty-Jabbaar v. Dallas Cty. Child Protective Servs., 19 S.W.3d 870, 874 (Tex. App.-Dallas 2000, pet. denied)). An "Indian child" is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." In re A.E., 2017 Tex.App. LEXIS 9883, at *8 (citing 25 U.S.C. § 1903(4)). "Reason to know," however, is not defined in the statute. In re A.E., 2017 Tex.App. LEXIS 9883, at *8.

In 1979, 2015, and 2016, the federal Bureau of Indian Affairs ("BIA") published guidelines to assist state courts in their implementation of the ICWA. Id. at *8-9. Texas courts have looked to these non-binding guidelines in construing the ICWA. Id. (citing In re R.R Jr., 294 S.W.3d...

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