Court of Appeals of Texas, Sixth District, Texarkana
IN THE INTEREST OF A.W. AND M.W., CHILDREN
Submitted: September 30, 2019.
Appeal from the 76th District Court Titus County, Texas Trial
Court No. 40, 040
Morriss, C.J., Burgess and Stevens, JJ.
K. Burgess Justice.
suit brought 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, maintaining that
(1) the trial court lost jurisdiction over the case because
the order retaining the case was defective, (2) the trial
court reversibly erred by commenting on the weight of the
evidence when it answered a written question from the jury,
and (3) the trial court lacked jurisdiction to enter the
order terminating Vince's and Emma's parental rights
because they claim their children have Native American
heritage. For the reasons below, we affirm the trial
December 18, 2017, the Department filed an original petition
for protection of A.W. and M.W., for conservatorship, and for
termination in a suit affecting the parent-child
relationship. After the entry of, among other things, an
initial order for protection of a child in an emergency, a
temporary order following adversary hearing naming the
Department as temporary managing conservator of the children,
a status hearing order, a November 7, 2018, permanency
hearing order before final order that extended the case 180
days, and an order denying Vince's motion for continuance
of trial, a jury was empaneled on January 22, 2019, to
determine the merits of the case.
hearing the evidence, the jury found that Vince's and
Emma's parental rights should be terminated and that the
Department should be named managing conservator of the
children.On February 20, 2019, the trial court
entered an order terminating Vince's and Emma's
parental rights pursuant to Section 16.001, subsections (D),
(E), and (O), of the Texas Family Code and finding that it
was in the children's best interests to do so.
See Tex. Family Code Ann. § 161.001(D), (E),
(O) (Supp.). This appeal followed.
The Trial Court Had Jurisdiction to Enter Its Termination
their third point of error, Emma and Vince maintain that the
"Native America Courts[, ]" and not the trial
court, had jurisdiction over the termination proceeding
because the children were descendants of Muscogee (Creek) and
Cherokee Nations. At the hearing on Vince's motion for
new trial, Vince testified that he was a direct descendant of
persons who were listed on the "Creek Nation. Freedmen
role." Without objection, the trial court
admitted a document showing that Vince's direct ancestors
had "Dawes number[s]." "In [Vince's]
opinion, that made him and his children, A.[W.] and M.[W., ]
direct descendants of those members of Creek Nation."
Thus, according to Emma and Vince, the trial court erred in
refusing to refer the children's case to the appropriate
protections enumerated in the [Indian Child Welfare Act
(ICWA)] are mandatory as to the trial court and the
Department, . . . they preempt state law, and the failure to
follow the ICWA may be raised for the first time on
appeal." In re J.J.C., 302 S.W.3d 896, 899
(Tex. App.- Waco 2009, no pet.) (citing 25 U.S.C.A. §
1914). A trial court's application of the ICWA is a
question of law, which we review de novo. See In re
W.D.H., 43 S.W.3d 30, 33 (Tex. App.- Houston [14th
Dist.] 2001, pet. denied).
ICWA applies to all state child custody proceedings involving
an Indian child where a "court knows or has reason to
know that an Indian child is involved[.]"
Doty-Jabbaar v. Dallas Cty. Child Protective Servs.,
19 S.W.3d 870, 874 (Tex. App.-Dallas 2000, pet. denied)
(citing 25 U.S.C.A. § 1912(a)). When the trial court
knows or has reason to know that an Indian child is involved,
"[i]t is the duty of the trial court and the Department
of Family and Protective Services to send notice in any
involuntary proceeding . . . ." J.J.C., 302
S.W.3d at 900 (citing 25 C.F.R. § 23.11). "Section
23.11 requires that the notice be sent to the
'appropriate Area Director' and the Secretary of the
Interior." Id. at 901 (citing 25 C.F.R. §
23.11(a), (b), (f)).
Bureau of Indian Affairs (BIA) Guidelines specify the
procedure for determining the status of an alleged Indian
child under the ICWA:
When a state court has reason to believe a child involved in
a child custody proceeding is an Indian, the court
shall seek verification of the child's status from
either the Bureau of Indian Affairs or the child's tribe.
. . . .
The determination by a tribe that a child is or is
not a member of that tribe, is or is not eligible for
membership in that tribe, or that the biological parent is or
is not a member of the tribe is conclusive.
. . . .
Circumstances under which a state court has reason to believe
a child involved in a child custody proceeding is an Indian
include . . . (i) Any party to the case . . . informs the
court that the child is an Indian child . . . (ii) Any public
or state-licensed agency involved in child protection
services or family ...