In re R.R., Jr.

• Decision Date: 19 March 2009
• Docket Number: No. 2-08-061-CV.,2-08-061-CV.
• Citation: 294 S.W.3d 213
• Parties: In the Interest of R.R., JR. and V.R., Children.
• Court: Texas Court of Appeals

294 S.W.3d 213

In the Interest of R.R., JR. and V.R., Children.

No. 2-08-061-CV.

Court of Appeals of Texas, Fort Worth.

March 19, 2009.

Dean M. Swanda, Swanda & Swanda, P.C., Arlington, TX, Marc F. Gault, Fort Worth, TX, for Appellants.

Tim Curry, Criminal District Attorney, Charles M. Mallin, Danielle A. Kennedy, Melissa Paschall, Asst. Criminal District Attorneys, for Appellee.

Panel: GARDNER, WALKER, and McCOY, JJ.

OPINION

SUE WALKER. Justice.

I. INTRODUCTION

Mother and Father appeal from a judgment terminating their parental rights to R.R. and V.R. Mother asserts as her sole issue, "Does the Indian Child Welfare Act [`ICWA' or `the Act'] apply to this case?" Father raises two issues: in his first issue, he challenges the factual sufficiency of the evidence to support the finding that termination of his parental rights was in the best interest of R.R. and V.R., and in his second issue, he argues that the trial court erred by not granting a new trial in light of evidence that the ICWA may apply. We will overrule Father's first issue. Because, according to published guidelines that we are to give great weight to, the trial court here had reason to know that Indian children were involved, specific statutory notices containing specific statutorily defined information were required to be sent to specific individuals. Although the Texas Department of Family and Protective Services ("TDFPS") sent out notices, those notices did not comply with the statutory requisites. Accordingly, we will abate this appeal and remand this case to the trial court so that proper notice may be provided to the proper individuals and so that, after such notice, the trial court may conduct a hearing and make a determination as to whether R.R. and V.R. are Indian children under the ICWA.

II. THE INDIAN CHILD WELFARE ACT

A. Purposes and Relevant Provisions of the Act

Congress enacted the ICWA in 1978. Indian Child Welfare Act of 1978, 25 U.S.C.A. §§ 1901-63 (2001). The federal legislation was passed in response to the "rising concern in the mid-1970's 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, 1599-1600, 104 L.Ed.2d 29 (1989); see also In re W.D.H., 43 S.W.3d 30, 34 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). The ICWA applies to all state child custody proceedings involving an Indian child when the court knows or has reason to know an Indian child is involved. 25 U.S.C.A. § 1912(a); Doty-Jabbaar v. Dallas County Child Protective Servs., 19 S.W.3d 870, 874 (Tex. App.-Dallas 2000, pet. denied). And an Indian child is defined by the Act as an "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." 25 U.S.C.A. § 1903(4).

The ICWA provides a variety of procedural and substantive protections in child custody proceedings involving an Indian child. It sets out minimum requirements with which a state court must comply before terminating parental rights in a case involving an Indian child. See id. § 1912; Doty-Jabbaar, 19 S.W.3d at 874. No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of a qualified expert witness, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. See 25 U.S.C.A. § 1912(f). Additionally, the tribe is entitled to notice of a custody proceeding involving an Indian child and has the right to intervene at any stage of the proceedings. See id. § 1912(a) (notice), § 1911(c) (intervention). But the tribe's failure to intervene does not mean that the ICWA does not apply; the ICWA applies when an Indian child is involved regardless of the tribe's participation in the proceeding. W.D.H., 43 S.W.3d at 34; Doty-Jabbaar, 19 S.W.3d at 874.

B. Membership or Eligibility for Membership in a Tribe

Although the Act defines an Indian child as an "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," the Act does not define what constitutes being a "member" or what constitutes being "eligible for membership." See 25 U.S.C.A. § 1903(4).

Case law makes it clear, however, that enrollment in a tribe or registration with a tribe is not the only way to establish membership. See, e.g., In re H.D., 11 Kan.App.2d 531, 535-36, 729 P.2d 1234, 1238 (1986). Under the ICWA, enrollment is not a necessary condition of tribal membership. Nelson v. Hunter, 132 Or.App. 361, 364, 888 P.2d 124, 125-26 (Ct.App.1995). "[M]embership may be established through proof of enrollment[;] enrollment is not the exclusive test of membership." Id.¹ "Enrollment is not always required in order to be a member of a tribe. Some tribes do not have written rolls. Others have rolls that list only persons that were members as of a certain date." Id., 888 P.2d at 125; accord In re Junious M., 144 Cal.App.3d 786, 791, 193 Cal.Rptr. 40, 42-43 (1983). Likewise, the ICWA contains no blood quantum requirement; rather, each tribe has its own criteria. See Thomas R. Myers & Jonathan J. Siebers, ICWA: Myths and Mistaken Application, 83 Mich. Bar. J. 12, 21 (2004).

The ICWA's failure to provide any statutory definition of the term "member of an Indian tribe" or of the term "eligible for membership" renders the ICWA ambiguous or unclear on exactly how membership or eligibility for membership is to be determined, especially in the absence of enrollment in or registration with a tribe. But following the enactment of the ICWA, the Department of the Interior issued guidelines for state courts in Indian child custody proceedings. See Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979) (hereinafter referred to as "Guidelines").² These Guidelines were not intended to have binding legislative effect. See id. But construction of a statute by the executive department charged with its administration is entitled to great weight. See Tex. Gov't Code Ann. § 311.023(6) (Vernon 2005); SWZ, Inc. v. Bd. of Adjustment of City of Fort Worth, 985 S.W.2d 268, 270 (Tex.App.-Fort Worth 1999, pet. denied); see also Stanford v. Butler, 142 Tex. 692, 700, 181 S.W.2d 269, 273 (1944) (observing that courts will ordinarily adopt and uphold a construction placed upon a statute by a department charged with its administration if the statute is ambiguous or uncertain, and the construction is reasonable); Tex. Ass'n of Long Distance Tel. Cos. v. Pub. Util. Comm'n of Tex., 798 S.W.2d 875, 884 (Tex.App.-Austin 1990, writ denied) (same). Following courts from other jurisdictions, at least one Texas court has looked to the Guidelines in construing an undefined term in the Act. See Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 163-64 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding) (utilizing ICWA Guidelines to construe undefined term—"good cause"—in ICWA); see also Junious M., 144 Cal.App.3d at 793-94, 193 Cal.Rptr. at 43-44 (utilizing Guidelines to construe undefined term "member" in ICWA); H.D., 11 Kan.App.2d at 533-36, 729 P.2d at 1237-39 (utilizing Guidelines to determine when and under what circumstances tribal notice and opportunity to be heard exist).

Thus, we next examine the Guidelines for instruction on how membership or eligibility for membership in a tribe is to be determined absent enrollment or registration in a tribe. The Guidelines begin by recognizing that there is a preference for keeping Indian children with their families or with other Indian families and for deferring to tribal judgment on matters concerning custody of tribal children. BIA Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. at 67,586. The Guidelines state that "[p]roceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences." Id. The Act and all regulations, guidelines, and state statutes relating to it "shall be liberally construed in favor of a result that is consistent with these preferences. Any ambiguities in any of such statutes, regulations, rules, or guidelines shall be resolved in favor of the result that is most consistent with these preferences." Id.

The Guidelines provide specific instructions on how to determine the status of an alleged Indian child:

When a state court has reason to believe a child involved in a child custody proceeding is an Indian, the court shall seek verification of the child's status from either the Bureau of Indian Affairs or the child's tribe.

. . . .

The determination by a tribe that a child is or is not a member of that tribe, is or is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is conclusive.

. . . .

Circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian include . . . (i) Any party to the case . . . informs the court that the child is an Indian child. . . . (ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child.

. . . .

In any involuntary child custody proceeding, the state court shall make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of...