In the interest of W.D.H.
| Decision Date | 15 February 2001 |
| Citation | 43 S.W.3d 30 |
| Parties | <!--43 S.W.3d 30 (Tex.App.-Houston 2001) IN THE INTEREST OF W.D.H., III., Appellant. NO. 14-99-00507-CV In The Fourteenth Court of Appeals at Houston, Texas |
| Court | Texas Court of Appeals |
On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 86,153A. [Copyrighted Material Omitted]
Panel consists of Yates, Wittig, and Frost JJ.
MAJORITY OPINION
Appellant, William Hightower, appeals the termination of the parent-child relationship with his son, W.D.H, III. On appeal, Hightower argues the trial court erred in not applying the standard for the termination of his parental rights as found in the Indian Child Welfare Act of 1978, 25 U.S.C. 1901, et seq. (1983) ("ICWA"). We agree. Because the trial court did not apply the correct legal standard for the termination of the parent-child relationship, we reverse the judgment of the trial court and remand the case for further proceedings.
W.D.H. was born on February 13, 1994. At the time of birth, both W.D.H. and his mother tested positive for crack cocaine. The Texas Department of Protective and Regulatory Services ("TDPRS") removed W.D.H. from the hospital and placed him in a foster home. Hightower's whereabouts were unknown at the time of W.D.H.'s birth. In April 1994, Hightower contacted TDPRS, expressing an interest in W.D.H. Accordingly, TDPRS prepared a family service plan with the long-term goal of reuniting Hightower and W.D.H. Hightower's employment, however, resulted in his being transferred frequently, making it difficult for him to provide a stable environment for W.D.H. Consequently, Hightower advised TDPRS that he wanted W.D.H. placed with appellant's cousin, Darlene Berry. In May 1994, after conducting a home study, an investigator with TDPRS recommended that W.D.H. be placed with Berry. However, for reasons not ascertainable from the record, W.D.H. was not placed with Berry and remained in foster care.1
To facilitate regular visits with W.D.H., TDPRS assisted Hightower in getting his work transferred to Houston. In November 1994, just prior to obtaining a residence in Houston, Hightower was convicted of burglary of a habitation and sentenced to twenty-five years in prison. While incarcerated, Hightower advised TDPRS that W.D.H. was one-fourth Indian. At Hightower's request, TDPRS prepared the necessary paperwork to enroll W.D.H. in the Cheyenne-Arapaho Tribe of Oklahoma (the "Tribe").2 Hightower also advised TDPRS that he wanted W.D.H. placed with the Tribe until he was released from prison. The Tribe expressed a desire to have W.D.H. placed with it. Accordingly, TDPRS changed its family service plan to reflect the goal of placing of W.D.H. with the Tribe. The Tribe, however, never took custody of W.D.H. TDPRS was also in contact with two members of the Tribe regarding the placement of W.D.H., but those members said that they would not be able to take him. No other members of the Tribe came forward to request placement of W.D.H. In 1996, TDPRS was appointed W.D.H.'s sole managing conservator.
Based on Hightower's representation that he would be released in 1997, TDPRS prepared another family service plan with the long-term goal of reuniting Hightower and W.D.H. Hightower's parole was denied, however, and he was not released in 1997. Because TDPRS was not able to determine when Hightower would be released from prison, it changed its long-term goal of reuniting Hightower and W.D.H. to termination of parental rights and adoption.
In January 1998, TDPRS filed a petition seeking the termination of Hightower's parental rights and sent notice of the termination suit to the Tribe. In July 1998, the Tribe responded to the notice by stating that although it would not intervene in the termination proceedings at that time, it reserved the right to intervene in the future. The termination hearing commenced on November 11, 1998. At this time, the Tribe filed a motion to intervene and entry of appearance. The trial court granted the Tribe's motion and continued the hearing until December 1, 1998. The Tribe, however, did not participate in the hearing and took no further action with regard to the termination proceedings.
On December 18, 1998, the trial court entered a decree for the termination of Hightower's parental rights.3 The trial court based the termination of the parent-child relationship on the following findings: (1) Hightower knowingly engaged in criminal conduct that resulted in his imprisonment and inability to care for W.D.H. for not less than two years from the date of the filing of the petition, (2) Hightower engaged in conduct which endangered the physical or emotional well being of W.D.H., and (3) it was in the best interest of the child to terminate the parent-child relationship.
Although Hightower brings seven points of error in this appeal, we find his second point of error dispositive and, therefore, consider it first. In his second point of error, Hightower challenges the termination of his parental rights on the ground that it was error for the trial court not to apply the standard for the involuntary termination of parental rights found in the ICWA, rather than the standard found in section 161.001 of the Texas Family Code. See Tex. Fam. Code Ann. 161.001 (Vernon Supp. 2000). We agree. Whether the trial court correctly applied the ICWA is a question of law. J.W. v. R.J., 951 P.2d 1206, 1209 (Alaska 1998); In re I.E.M., 233 Mich.App. 438, 443, 592 N.W.2d 751, 754 (1999). In Texas, questions of law are subject to de novo review. Precast Structures, Inc. v. City of Houston, 942 S.W.2d 632, 636 (Tex. App.--Houston [14th Dist.] 1996, no writ) (citing State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996)).4
Congress enacted the ICWA in reaction to concerns regarding the effects on "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." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). In accordance with these concerns, the ICWA "'seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society.'" Id. at 37 (quoting H.R. Rep. No. 95-1386, at 23 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7546). 5
When the court knows or has reason to know an Indian child is involved in a child custody proceeding, then the ICWA applies to the proceeding. 25 U.S.C. 1912(a); Doty-Jabbaar, 19 S.W.3d at 874; see also In re Adoption of Baade, 462 N.W.2d 485, 490 (S.D. 1990) (). The ICWA defines an Indian child as "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; . . ." 25 U.S.C. 1903(4). W.D.H. is enrolled as a member of the Cheyenne-Arapaho Tribe. Therefore, the ICWA applies to the termination proceedings in this case. Even the Tribe's failure to intervene in the termination proceedings does not affect the applicability of the ICWA. Doty-Jabbaar, 19 S.W.3d at 874; see also In re L.F., 266 Mont. 461, 464, 880 P.2d 1365, 1367 (1994); In the Interest of P.B., 371 N.W.2d 366, 368 (S.D. 1985).
To order the involuntary termination of the parent-child relationship in Texas, one of the enumerated statutory grounds must be established by clear and convincing evidence, as well as that termination is in the best interest of the child. Tex. Fam. Code Ann. 161.001(1) & (2). Section 1912(f) of the ICWA sets forth the minimum standard for the involuntary termination of parental rights:
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 qualified expert witnesses, 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.
The trial court in this case combined the requisites of the Family Code and the ICWA by applying the evidentiary standard of "beyond a reasonable doubt" as found in the ICWA to its findings under the Family Code. Therefore, the trial court concluded "beyond a reasonable doubt" that: (1) Hightower had knowingly engaged in criminal conduct that resulted in his imprisonment and inability to care for W.D.H. for not less than two years from the date of the filing of the petition under section 161.001(1)(Q); (2) Hightower had engaged in conduct which endangered the physical or emotional well being of W.D.H. under section 161.001(1)(D);6 and (3) it was in the best interest of the child to terminate the parent-child relationship under section 161.001(2). The trial court, however, failed to make a finding, in accordance with 25 U.S.C. 1912(f), i.e., "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."7
The parties do not dispute that the ICWA applies to the termination proceedings at issue; rather, the crux of the dispute is whether the respective termination provisions of the Family Code and the ICWA may be applied simultaneously. TDPRS contends the trial court correctly applied the ICWA and the Family Code. We disagree. First, absent from the trial court's findings and conclusions is a determination, in accordance with 25 U.S.C. 1912(f), 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." The language of the ICWA is...
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