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In re M.M.W.

Court of Appeals of Texas, Sixth District, Texarkana

November 8, 2017

IN THE INTEREST OF M.M.W. AND N.N.G., CHILDREN IN THE INTEREST OF N.N.G., A CHILD

         On Appeal from the County Court at Law Lamar County, Texas Trial Court No. 85116

          Before Morriss, C.J., Moseley and Burgess, JJ.

          ORDER

         As a result of a petition filed by the Texas Department of Family and Protective Services (the Department), the trial court terminated Mother's and Father's parental rights to M.M.W. and N.N.G. Mother and Father have both filed separate appeals from this order. In response, the Department had appropriately asked this Court to abate these appeals to allow the trial court the opportunity to comply with the Indian Child Welfare Act (ICWA). By our order dated October 16, 2017, we abated both cases so that the trial court could provide the proper notices as required by the ICWA. Because the trial court did not comply with statutory requirements, we must abate these appeals a second time.

         Our previous order required the trial court to comply with Section 23.11 of the Code of Federal Regulations and the Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines), 44 Fed. Reg. 67, 584 (Nov. 26, 1979). Section 23.11 states:

Notice must include the requisite information identified in § 23.111, consistent with the confidentiality requirement in § 23.111(d)(6)(ix). Copies of these notices must be sent to the appropriate Regional Director listed in paragraphs (b)(1) through (12) of this section by registered or certified mail with return receipt requested or by personal delivery and must include the information required by § 23.111.

25 C.F.R. § 23.11 (West, current through Nov. 2, 2017).

         In response to our order requiring the trial court to send the proper ICWA notices, the attorney representing the Department mailed a letter to the Bureau of Indian Affairs (the Bureau) at the address provided by Section 23.11(b)(4). However, that letter failed to include the information required by Section 23.111, which required the notice to include "[a]ll names known (including maiden, married, and former names or aliases) of the parents . . . ." 25 C.F.R. § 23.111(d) (West, current through Nov. 2, 2017). A review of our appellate record reveals that the Department had knowledge that Mother's last name was once Bacon, but did not supply that information to the Bureau in its notice.

         The letter returned by the Bureau stated that insufficient information was provided to identify the Tribe for a referral. The letter further referred the Department, under a section labeled "Other Action, " to the "BIA Website for Receipt of Designated Tribal Agents for Service of ICWA Notices." At a hearing held on October 23, 2017, the Department's witness testified that she had spoken with an employee of the Bureau that morning and that the Bureau employee indicated that she would research the matter further and would send another letter to the Department.[1] The contents of that letter are not included in the supplemental record filed with this Court.

         Further, our previous order required the trial court to send notices to the proper Regional Director. The appropriate Regional Director is determined by application of the BIA Guidelines and the ICWA. The BIA Guidelines and Section 23.11 both refer to Section 23.111, which further states:

(e) If the identity or location of the child's parents, the child's Indian custodian, or the Tribes in which the Indian child is a member or eligible for membership cannot be ascertained, but there is reason to know the child is an Indian child, notice of the child-custody proceeding must be sent to the appropriate Bureau of Indian Affairs Regional Director (see www.bia.gov). To establish Tribal identity, as much information as is known regarding the child's direct lineal ancestors should be provided. The Bureau of Indian Affairs will not make a determination of Tribal membership but may, in some instances, be able to identify Tribes to contact.

25 C.F.R. § 23.111(e) (West, current through Nov. 2, 2017). According to the BIA website, [2] notices sent from Lamar County pursuant to Section 23.111(e) must be sent to the Regional Director at both of the following offices:

Eastern Oklahoma Region
3100 W. Peak Boulevard
Muskogee, OK ...

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