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N. M. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

September 26, 2019

N. M., Appellant
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE 22ND DISTRICT COURT OF HAYS COUNTY NO. 18-1038, THE HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING.

          Before Goodwin, Baker, and Kelly, Justices.

          MEMORANDUM OPINION

          Thomas J. Baker, Justice.

         This is an appeal from the termination of the parent-child relationship between N.M. and her two children A.M. and M.M.[1] N.M. contends that the evidence was insufficient to support the termination of her parental rights and the appointment of the Department of Family and Protective Services (the Department) as permanent managing conservator for A.M. and M.M. because the Department did not present a qualified expert witness as required by the Indian Child Welfare Act (ICWA). See 25 U.S.C.A. § 1912. Because we conclude that the evidence is legally insufficient, we reverse the portions of the district court's judgment terminating N.M.'s parental rights and appointing the Department as permanent managing conservator and remand for further proceedings.

         BACKGROUND

         The Department on May 9, 2018, filed an Original Petition for Protection of a Child, for Conservatorship, and for Termination in a Suit Affecting the Parent-Child Relationship, regarding the children A.M. and M.M., age 10 and 8, respectively, at time of filing. The petition sought to terminate the parent-child relationship of N.M. and the children's father[2]and stated that each child was "Reported as an Indian Child by a parent or other person." The Department's affidavit in support of removal stated regarding the ICWA that N.M. and her children describe their tribal connection as being with the Potawatomi Tribe. The district court issued Temporary Orders on May 23, 2018, which state in relevant part, "ICWA has been ruled out as to the Respondent Mother [N.M.] [and] . . . ICWA has been confirmed as to the Respondent Father."

         The Department on June 18, 2018, issued "NOTICE OF PENDING CUSTODY PROCEEDING INVOLVING INDIAN CHILDREN" to the Citizen Potawatomi Nation, Shawnee, Oklahoma. The Citizen Potawatomi Tribal enrollment office sent a letter to the district court, confirming that the children's father was an enrolled member with the Citizen Potawatomi Nation and "1/64th degree of Citizen Potawatomi Nation blood" and that the children were direct descendants of the Citizen Potawatomi Nation. The Citizen Potawatomi Nation on July 5, 2018, filed an "Entry of Appearance, " in accordance with the ICWA, see 25 U.S.C.A. § 1911(c), pleading that the Citizen Potawatomi Nation is a federally recognized Indian Tribe; that the children, A.M. and M.M., were direct descendants of the Citizen Potawatomi Nation; and that their father was on the tribal roll and an enrolled member of the Citizen Potawatomi Nation.

         The State called the following witnesses: (1) Nathaniel Choate, Family Based Safety Services worker who testified regarding the intake of the case as the on-call investigator; (2) Ashley Hernandez, caseworker for the Department and courtesy worker for N.M., whose duties were to help her with her family service plan, set up her services, and check her home environment and its appropriateness for the children; (3) the children's maternal aunt, who testified about the placement of the children in her home on and after October 26, 2018, N.M.'s visitation with the children and the children's relationship with her, and her plans for the children; and (4) Victoria Davis, the Department's caseworker who testified regarding the Department's family service plan, and recommended that N.M.'s rights be terminated and that such termination was in the children's best interests.

         Documentary evidence also was admitted, including the Department's family service plan; business records affidavit showing positive drug testing results for methamphetamine and amphetamine in October 2018 and November 2018; an Acknowledgment of Substance Use by N.M. for marijuana and methamphetamine before May 2018; the Department's Notice of Pending Custody Proceeding Involving Indian Children; and the Entry of Appearance by Janet Draper, Indian Child Welfare Director for the Citizen Potawatomi Nation.

         After all parties rested, the associate judge on March 20, 2019, orally pronounced judgment terminating N.M.'s parental rights. On March 27, 2019, the associate judge signed an Order of Termination terminating N.M.'s parental rights to both children on the grounds orally pronounced. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O). The district court approved and signed the associate judge's report on March 29, 2019, and issued its judgment terminating N.M.'s parental rights and appointing the Department as permanent managing conservator for A.M. and M.M. The district court also made findings that A.M. and M.M. "are . . . Indian Child[ren] within the meaning of the Indian Child Welfare Act."

         N.M. appeals the district court's judgment.

         DISCUSSION

         Sufficiency of the Evidence

         In her sole issue on appeal, N.M. argues that the evidence is insufficient to terminate her parental rights because no testimony from a qualified expert witness was presented at trial. Accordingly, N.M. contends that this Court must reverse the portion of the judgment pertaining to her parental rights, and the Department agrees. Because no testimony from a qualified expert was presented at trial, N.M. also argues that the ...


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