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In re Nation

Court of Appeals of Texas, Seventh District, Amarillo

September 10, 2019

IN RE NAVAJO NATION, RELATOR

          An Original Proceeding Arising From Proceeding in the 99th District Court Lubbock County, Texas Trial Court No. 2017-527, 784; Honorable William C. Sowder, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          Patrick A. Pirtle Justice

         By this original proceeding, Relator, the Navajo Nation, seeks a writ of mandamus to compel Respondent, the Honorable William C. Sowder, to grant its motion to transfer jurisdiction over the underlying parent/child termination proceeding[1] to the Navajo Nation's Tribal Court in Arizona, pursuant to the provisions of the Indian Child Welfare

          Act of 1978 ("ICWA").[2] Specifically, the Navajo Nation challenges the trial court's determination that "good cause" existed, within the meaning of the ICWA, not to transfer the proceeding to the Navajo Nation's Tribal Court. See 25 U.S.C.S. § 1911(b) (2019).[3]Because the Navajo Nation is not entitled to the relief requested, we deny its petition.

         Background

         There are three children at issue in the underlying termination proceeding: S.R. (a female child born in 2017), A.R. (a male child born in 2015), and H.H. (a female child born in 2008).[4] The mother's initials are also A.R. The purported fathers of the children were served by publication and have not participated. In October 2017, the Texas Department of Family and Protective Services (the "Department") investigated a complaint of physical abuse when neighbors heard A.R. slap H.H. indoors. The Department subsequently discovered H.H. was not attending school, there was no furniture in the house on which the children could sleep, and the mother tested positive for methamphetamine and marijuana. On October 23, 2017, the Department filed its original petition for the protection of the children and among other things, sought the termination of A.R.'s parental rights to the children under multiple provisions of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (K), (N), and (O) (West Supp. 2018).

         On October 25, 2017, the Department filed its Notice of Pending Custody Proceeding Involving Indian Child and shortly thereafter received a letter from the United States Department of the Interior - Bureau of Indian Affairs indicating that the Navajo Nation's Regional Office had received the notice and were properly notified of the pending proceedings.[5] On March 8, 2018, the matter was scheduled for a final hearing before Associate Judge Kara L. Darnell, to be held on July 26. During the months of May and June, A.R. tested positive for methamphetamine and amphetamine. She also refused the requests for two other drug tests. In June, the Navajo Nation informed the Department that it was unable to verify the children's eligibility for tribal membership. The Department was told by the Navajo Nation Regional Office that the intake would be closed and that the matter would be considered as a referral for record information only. On July 26, the final hearing was reset for October 18, 2018.

         In August, the Navajo Nation advised the Department that the children were enrolled as members of the Navajo Nation and eligible for ICWA services. The Navajo Nation also intervened in the proceedings and assigned Delphine Segodi, the Navajo Nation's senior social worker, as its caseworker to receive all court filings and participate in the proceedings. In September, A.R. failed to attend another drug test. In anticipation of the October final hearing, the Department filed a Permanency Report indicating that the Navajo Nation offered no relatives for possible placement but would continue searching and the Court Appointed Special Advocate ("CASA") filed a report recommending termination of A.R.'s parental rights due to her continued drug use, her failure to address the reasons for the children's removal, her failure to establish a consistent place of residence, her failure to maintain consistent employment, her failure to engage in services provided, and her lack of involvement with the children. On October 11, the trial court issued a second order resetting the final hearing for January 3, 2019.

         During this period of delay, the Department continued to be in communication with the Navajo Nation regarding any possible placement; however, Segodi reported that the Navajo Nation was unable to locate any relatives or foster families on the reservation willing to take three children. On December 13, Segodi reaffirmed that the Navajo Nation had no options and supported placement of the children with the foster parents who had cared for them since the termination proceedings were initiated. On January 3, 2019, in order to accommodate Segodi who was ill and unable to participate, the trial court issued a third order resetting the final hearing for February 14, 2019.

         On February 12, 2019, the Department filed its Permanency Report with the trial court indicating that it was in contact with the Navajo Nation who had reported that it had no relatives or foster families on the reservation and were in agreement with the Department's continuing efforts to permanently place the children with their foster parents. On February 14, 2019, the trial court convened the final hearing with all parties present. A.R. began testifying in the morning and resumed her testimony after lunch. In the middle of the afternoon, Segodi interrupted the proceedings to speak to A.R. After speaking with the mother, Segodi made an oral motion to transfer jurisdiction over the proceedings to the Navajo Nation's Tribal Court in Arizona. At the time of the motion, Segodi had exhausted the Navajo Nation's efforts to look for placement with family members and there was not an opportunity for placement or adoption with other members of the Navajo Nation.

         On March 25, 2019, the trial court issued its order denying the Navajo Nation's motion to transfer jurisdiction, finding that good cause existed to hear the proceedings in Texas. Associate Judge Darnell noted that the final hearing had been convened and the mother was testifying when the motion was made, proceedings were at an advanced stage, and the evidence necessary to decide the case could not be adequately presented in the Navajo Nation's Tribal Court in Arizona without undue hardship to the parties and the witnesses. A.R. subsequently moved for a de novo hearing on the denial of the motion.

         On April 17, 2019, a de novo hearing was convened by the Honorable William C. Sowder. The State's evidence established that during the proceedings, A.R. and one child had received services from therapists since the removal. Other providers rendered services under the service plan and treated A.R. and/or the children, such as the CASA, [6] Starcare, [7] and mental/substance abuse counselors. A.R. also received addiction treatment, was drug tested, and attended AA/NA meetings with sponsors. During the nineteen months the proceedings had been pending prior to the motion to transfer, A.R. resided in Lubbock, Texas, the removal occurred in Lubbock, and all the mother's and/or children's service providers were in Lubbock.

         The Department testified there was no mechanism for the Department to pay providers to attend a hearing located in Arizona and any mechanism for the Department's caseworker to attend would be limited. The Department proposed that if Segodi was unable to personally attend the termination proceedings, she could continue to participate telephonically. In addition, arrangements could be made so that she could receive all documents through mail or email. The Department also maintained that good cause to deny the transfer existed because the stage of the proceedings was advanced, i.e., the final hearing had been continued at least three times, with the final hearing having already commenced and a portion of the testimony having already been taken. Furthermore, the children had been living in the same household with foster parents approved by Navajo Nation and the foster parents were in the process of adopting the children.

         Segodi testified that although the Navajo Nation has an adoption unit and families were recruited, there were no placements available within the Navajo Nation. No homes were available primarily because most families wanted only a single child, not three children. She testified that the motion to transfer the proceedings was made in order for the Navajo Nation to be able to make its own placement and that she had orally moved to transfer jurisdiction to the Navajo Nation's Tribal Court during the final hearing because she specifically wanted to avoid termination of A.R.'s parental rights. She proposed that the Department and its service providers could participate telephonically in any further proceedings before the Navajo Nation's Tribal Court in Arizona.

         On April 30, 2019, the trial court issued its amended order denying the Navajo Nation's motion to transfer jurisdiction. The trial court found good cause to deny the motion because the evidence necessary to decide the case could not be adequately represented in the Navajo Nation's Tribal Court without undue hardship to the parties and the witnesses. The trial court also found that the vast majority of the witnesses, including caseworkers, counselors, and therapists, live in and around Lubbock. In addition, the trial court determined that telephonic testimony before the Navajo Nation's Tribal Court would be insufficient for a fact finder to be able to make necessary reliability and credibility determinations. The trial court specifically found that the Navajo Nation received timely notice of the proceedings and "the lateness of the proceeding" could be considered in reaching its decision. The trial court also stated that in making its decision, it did not consider any factor regarding the propriety or effectiveness of the practices and rules of the Navajo Nation's Tribal Court, the best interests of the children, or the stage of the proceedings at which time the motion to transfer was initially made. The Navajo Nation's request for a writ of mandamus followed.

         Standard ...


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