Court of Appeals of Texas, Third District, Austin
N. M., Appellant
Texas Department of Family and Protective Services, Appellee
THE 22ND DISTRICT COURT OF HAYS COUNTY NO. 18-1038, THE
HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING.
Goodwin, Baker, and Kelly, Justices.
J. Baker, Justice.
an appeal from the termination of the parent-child
relationship between N.M. and her two children A.M. and
M.M. 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.
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 fatherand 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
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.
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.
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.
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."
appeals the district court's judgment.
of the Evidence
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 ...