Court of Appeals of Texas, Sixth District, Texarkana
Appeal from the 354th District Court Hunt County, Texas Trial
Court No. 85846
Morriss, C.J., Burgess and Stevens, JJ.
result of a petition filed by the Texas Department of Family
and Protective Services (the Department), the trial court
terminated Mother's parental rights to A.M.G. Mother
appeals. We abate this appeal to allow the trial court the
opportunity to comply with the Indian Child Welfare Act
passed the ICWA 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 (1989). "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." In re C.C., No.
12-17-00114-CV, 2017 WL 2822518, at *2 (Tex. App.- Tyler June
30, 2017, no pet.) (mem. op.) (citing 25 U.S.C.A. §
1912(a)); In re R.R., Jr., 294 S.W.3d 213, 217 (Tex.
App.-Fort Worth 2009, no pet.)). "An Indian child is
defined by the ICWA 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.'"
Id. (quoting 25 U.S.C.A. § 1903(4)). "The
ICWA, however, does not define what constitutes being a
'member' or 'being eligible for
membership.'" Id. (citing 25 U.S.C.A.
§ 1903(4)). "Each tribe has its own criteria for
determining tribe membership." Id.
Bureau of Indian Affairs created guidelines for state courts
to use in Indian child custody proceedings to assist with the
interpretation of the ICWA." Id. (citing Bureau
of Indian Affairs Guidelines for State Courts; Indian Child
Custody Proceedings (BIA Guidelines), 44 Fed. Reg. 67, 584
(Nov. 26, 1979)). Under the BIA Guidelines,
"[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.
(quoting BIA Guidelines, 44 Fed. Reg. at 67, 586).
"Specific instructions are provided in the [BIA]
Guidelines for the determination of the status of an alleged
Indian child." Id. (citing In re
J.J.C., 302 S.W.3d 896, 900 (Tex. App.-Waco 2009, no
pet.)). "The burden is placed on the trial court to seek
verification of the child's status through either the
Bureau of Indian Affairs or the child's tribe."
Id. (citing BIA Guidelines, 44 Fed. Reg. at 67, 586
(stating that "the court shall seek verification of the
child's status")). "[C]ircumstances under which
a state court has reason to believe a child involved in a
child custody proceeding is an Indian include [when] . . .
(i) [a]ny party to the case . . . informs the court that the
child is an Indian child . . . [and] (ii) [a]ny 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." Id.
(quoting BIA Guidelines, 44 Fed. Reg. at 67, 586).
the ICWA, an Indian tribe is entitled to notice of a custody
proceeding involving an Indian child." Id.
(citing 25 U.S.C.A. § 1912(a)). "It is the duty of
the trial court and the Department to send notice in any
involuntary proceeding 'where the court knows or has
reason to know that an Indian child is involved.'"
Id. (quoting 25 C.F.R. § 23.11). "Section
23.11 also requires that the notice be sent to the
'appropriate Regional Director' and the Secretary of
the Interior." Id. (quoting 25 C.F.R. §
23.11(a), (b), (c)). On receipt of the notice, the Secretary
of the Interior, or his designee, is required "to make
reasonable documented efforts to locate and notify the tribe
and the child's Indian parent or custodians within
fifteen days or to notify the trial court how much time is
needed to complete the search for the child's
tribe." Id. (citing 25 C.F.R. § 23.11(c)).
violation of the ICWA notice provisions may be cause for
invalidation of the termination proceedings at some later,
distant point in time." Id. (citing 25 U.S.C.A.
§ 1914 (providing that "[a]ny Indian child who is
the subject of any action for . . . termination of parental
rights under State law, any parent . . . from whose custody
such child was removed, and the Indian child's tribe may
petition any court of competent jurisdiction to invalidate
such action upon a showing that such action violated any
provision of sections 1911, 1912, and 1913 of this
the Department's petition stated that "[a]n inquiry
regarding the child or family's possible Indian ancestry
is not complete." In the "Indian Child & Family
Questionnaire," included in the clerk's record,
Mother reported possible Native American heritage. The
Department further acknowledged, in three permanency reports
included in the clerk's record, that Mother reported that
the child had Indian heritage. Both Mother's report and
the Department's knowledge of her report that the
children may have Indian ancestry were "sufficient to
trigger the ICWA's requirements for notification and
determination of Indian status." Id. at *3.
Therefore, the trial court was obligated to notify and
"seek notification of the child's status from either
the Bureau of Indian Affairs or the child's tribe."
BIA Guidelines, 44 Fed. Reg. at 67, 586. These notice
provisions are mandatory. Id.
because the inquiry required by the ICWA is necessary here,
we abate this appeal with the following instructions:
(1) the trial court shall provide, no later than July
8, 2019, proper notices that comply with the
ICWA's statutory notice requirements discussed herein;
(2) the trial court shall thereafter conduct a hearing, no
later than August 7, 2019, to determine
whether A.M.G. is an Indian child under the ICWA;
(3) the trial court shall cause a record of the proceedings
to be prepared and shall make appropriate findings as to
whether A.M.G. is an Indian child;
(4) the reporter's record from the hearing shall be filed
with this Court no later than August 19,
(5) a supplemental clerk's record (including any orders
and findings resulting from the ICWA hearing) shall be filed
with this Court no ...