Court of Appeals of Texas, Sixth District, Texarkana
IN THE INTEREST OF A.W. AND M.W., CHILDREN
Appeal from the 76th District Court Titus County, Texas Trial
Court No. 40, 040
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 Vince's and Emma's parental rights to
their two children, A.W. and M.W. Vince and Emma appeal. We
abate this appeal to allow the trial court the opportunity to
comply with the Indian Child Welfare Act (ICWA).
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 cases involving an Indian child when
the trial court knows or has reason to know that an Indian
child is involved. 25 U.S.C.A § 1912(a);
Doty-Jabbaar v. Dallas Cty. Child Protective Servs.,
19 S.W.3d 870, 874 (Tex. App.-Dallas 2000, pet. denied). The
ICWA defines an Indian child as an "unmarried person who
is under the age of 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,
however, does not define what constitutes being a
'member' or 'being eligible for
membership.'" In re J.J.C., 302 S.W.3d 896,
900 (Tex. App.-Waco 2009, no pet.) (citing 25 U.S.C.A. §
1903(4)). Each individual tribe uses its own criteria for
determining tribe membership. In re R.R., 294 S.W.3d
213, 217-18 (Tex. App.-Fort Worth 2009, no pet.). A
child's parent may petition a court of competent
jurisdiction to set aside involuntary termination for failure
to comply with the ICWA). Id.
Bureau of Indian Affairs [BIA] created guidelines for state
courts to use in Indian child custody proceedings to assist
with the interpretation of the ICWA." 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 Bureau
of Indian Affairs Guidelines for State Courts; Indian Child
Custody Proceedings (BIA Guidelines), 44 Fed. Reg. 67, 584
(Nov. 26, 1979)). Under 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 68, 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. § 1921(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)). The appropriate Regional Director is
determined by application of the BIA Guidelines and the ICWA.
Section 23.11 of the Code of Federal Regulations 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 or by
personal delivery and must include the information required
by § 23.111.
25 C.F.R. § 23.11. Notices must comply with Section
23.111, including the requirement to list "[a]ll names
known (including the maiden, married, and former names or
aliases) of the parents." 25 C.F.R. § 23.111(d). 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 custodian within fifteen days or to notify the
trial court how much time is needed to complete the search
for the child's tribe. 25 C.F.R. § 23.11(c). A
violation of the ICWA notice provisions may be just cause for
invalidating the termination proceedings at some future point
in time. 25 U.S.C.A. § 1914.
Vince and Emma brought to the court's attention that they
believed the children were of American Indian descent, the
Department sent a notice of pending custody proceeding
involving Indian child to "Muscogee (Creek) Nation[, ]
C/O ICWA Representative" in Okmulgee,
Oklahoma. Also in the record is a letter from the
Department addressed to Bill John Baker, Principal Chief,
Eastern Oklahoma. The letter contained an address located in
Tahlequah, Oklahoma. However, there is nothing in the record
to show that the Regional Director or the Secretary of the
Interior were notified of the proceeding. See 25
C.F.R. § 23.11(a), (b), (c).
to the BIA website, notices sent from Titus 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
74401 Phone: (918) 781-4608 Fax Number: (918) 781-4604
Southern Plains Region U.S. Indian Affairs Bureau - P.O. Box
368 132 E Broadway St Anadarko, OK 73005 Phone: (405)
247-6673 Fax Number: (405) 247-5611
to comply with the notice requirements of the ICWA provisions
creates the danger of invalidation of parental-rights
termination proceedings. Yet, when an appellate court
determines there has been a potential violation of the ICWA
notice provisions, reversal is not necessarily warranted.
Instead, an appellate court may remand the case to the trial
court so that proper notice may be provided. See
Tex. R. App. 44.4.
the inquiry required by the ICWA is necessary here, we abate