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In re J.J.T.

Court of Appeals of Texas, Eighth District, El Paso

December 20, 2017


         Appeal from 65th District Court of El Paso County, Texas (TC # 2016DCM0865).

          Before McClure, C.J., Rodriguez, and Palafox, JJ.


          ANN CRAWFORD McCLURE, Chief Justice.

         The Navajo Nation appeals from a judgment terminating the parental rights of S.C. to her son, J.J.T. Finding that the trial court erred by not permitting the Navajo Nation to intervene, we reverse the judgment and remand the cause for a new trial.


         S.C. ("Shelly") is the biological mother of J.J.T. ("Jake").[1] Jake is a member of the Navajo Nation (the Nation). On January 19, 2016, Shelly took then five-month-old Jake to a pediatrician for his two-month shots. The pediatrician noticed that Jake's head circumference appeared to be large for his age, and he ordered an ultrasound of the brain which indicated the presence of two hematomas. Jake was taken to an emergency room and an MRI confirmed the hematomas. Skeletal x-rays revealed that Jake had multiple rib fractures on his right side, a left rib fracture in the process of healing, a right fibula buckle fracture, a right tibia fracture, and a left fibula fracture. Jake subsequently underwent brain surgery to relieve the pressure on his brain. Shelly told hospital personnel that she was Jake's primary caregiver and Jake had not been in any accidents, and he had not fallen or suffered any accidental trauma. Jake's doctors ruled out diseases which might account for the injuries and concluded that his injuries were the result of non-accidental trauma. Hospital personnel made a report to the Texas Department of Family and Protective Services. The Department filed a petition seeking to terminate the parental rights of both parents, and the trial court entered emergency orders removing Jake from his parents and appointing the Department as the temporary managing conservator of the child. Jake was placed with a non-Indian foster family, and by all accounts, he is thriving, his medical, physical, and emotional needs are being met, and he is closely bonded with the family.

         On March 1, 2016, the Department gave notice to the Nation of the pending suit involving Jake. Further, on April 20, 2016, it notified the Nation of a hearing scheduled for July 22, 2016. On August 3, 2016, the Nation notified the Department that Jake is eligible to be enrolled as a member of the Nation, and it subsequently provided the name of the ICWA social worker assigned to the case to coordinate services with the Department. The Nation did not formally intervene in the case.

         The trial court conducted the bench trial on June 12, 2017, but it did not provide notice to the Nation of the trial setting. On the day of trial, both Shelly and Steve voluntarily relinquished their parental rights. Counsel for the Department informed the trial court that Crescentia Tso, a representative of the Nation, had requested that she be allowed to testify telephonically regarding best interest, and the trial court agreed. Prior to that testimony, the Department's counsel also made the trial court aware that Ms. Tso had informed him that the Nation was a party to the proceeding, and as the Nation's representative, she should be allowed to hear all of the proceeding and not be excluded under the Rule of Witnesses. Counsel for both Shelly and Jake objected. The trial court ruled that Ms. Tso could testify, but she would not be treated as a party. Ms. Tso proceeded to testify regarding her involvement in the case and as an expert witness. She was aware that both parents had voluntarily relinquished their parental rights, and in her opinion, those relinquishments were in the best interest of the child because the parents had been given over a year to engage in services and obtain the help they need, but neither of them had successfully completed any of the recommended services. The Nation did not object to the current placement of the child because all family members in Texas were ruled out and it had been difficult to find an ICWA-compliant home for the child. Regarding Jake's future placement, the Nation had located a Navajo home. The adoptive mother is Navajo and her husband is Hispanic. The home study process and background checks had been completed, and the couple was ready to receive Jake. Ms. Tso agreed that there would need to be a plan to transition Jake to this home in order to minimize emotional trauma because he was bonded to his foster family.

         During cross-examination, one of the attorneys stated that the Nation had not intervened, and Ms. Tso stated, "I think we are intervening at this moment." When the trial court asked Ms. Tso to explain how she thought she was intervening, Ms. Tso explained: "In other ICWA cases, the Navajo Nation is considered a party, we're not considered a witness and so in other states the ICWA worker has attended the entire court hearing and so based upon the testimonies that are given, we take that into consideration based on the information that's being provided to us." Ms. Tso expressly relied on Section 1911(c) in support of the Nation's request to intervene. The trial court concluded that the Nation had not filed a written intervention and the request to intervene made on the day of trial was too late. Consequently, Ms. Tso was excluded from hearing any of the testimony and the Nation was not allowed to participate in the final hearing. The trial court terminated the parental rights of both Shelly and Steve, and it appointed the Department as the Permanent Managing Conservator of Jake. The court ordered that Jake remain in his current foster home. The Nation formally intervened after the trial and it filed a motion requesting a placement hearing. The Nation filed notice of appeal, but neither Shelly nor Steve have appealed the termination of their parental rights.


         The Nation raises three issues asserting that the order terminating Shelly's parental rights must be invalidated because provisions of the Indian Child Welfare Act were violated. First, it argues that the evidence is legally and factually insufficient to support the termination of Shelly's parental rights because there is no evidence showing that continued custody of the child by the parent would result in serious emotional or physical damage to the child. See 25 U.S.C.A. § 1912(f). In the second issue, the Nation contends that Section 1912(a) was violated because it was not provided notice of the foster placement hearing. See 25 U.S.C.A. § 1912(a). Finally, it its third issue, the Nation asserts that the order terminating Shelly's parental rights and placing the child with the non-Indian family must be invalidated because the trial court refused to permit the Nation to intervene. The Department concedes that this issue must be sustained. Therefore, we will begin with Issue Three.

         Indian Child Welfare Act

         It is undisputed that Jake is a member of the Navajo Nation. Consequently, the requirements of ICWA apply to this case. See 25 U.S.C.A. § 1912(f); In re of V.L.R., 507 S.W.3d 788, 792 (Tex.App.--El Paso 2015, no pet.)(observing that ICWA applies to a termination of parental rights proceeding in a state court when the court knows or has reason to know that an Indian child is involved in a child custody proceeding). Under Section 1914, the Indian child's tribe may petition any court of competent jurisdiction to invalidate any action for foster care placement or termination of parental rights under state law upon a showing that Sections 1911, 1912, or 1913 were violated. See 25 U.S.C.A. § 1914. Thus, the Nation has standing to bring this appeal challenging the trial court's order.

         The trial court refused to allow the Nation to intervene because its request was untimely. Section 1911(c) expressly provides: "In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding." 25 U.S.C.A. § 1911(c). Giving effect to the plain language of the statute, we conclude that a request to intervene is not untimely even if it is made at the final hearing. In re Guardianship of Q.G.M., 808 P.2d 684, 688 (Okla. 1991)(holding that an Indian tribe which seeks to intervene in the proceedings is not required to intervene at the first stage of the proceedings and it may wait ...

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