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In re A.W.

Court of Appeals of Texas, Sixth District, Texarkana

October 24, 2019

IN THE INTEREST OF A.W. AND M.W., CHILDREN

          Submitted: September 30, 2019.

          On Appeal from the 76th District Court Titus County, Texas Trial Court No. 40, 040

          Before Morriss, C.J., Burgess and Stevens, JJ.

          OPINION

          Ralph K. Burgess Justice.

         In a 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.[1] 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 court's judgment.

         I. Background

         On 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.

          After 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.[2]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.

         II. Discussion

         A. The Trial Court Had Jurisdiction to Enter Its Termination Order

         In 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."[3] Without objection, the trial court admitted a document showing that Vince's direct ancestors had "Dawes number[s]."[4] "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 tribal court.

         "[T]he 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).

         The ICWA applies to all state child custody proceedings involving an Indian child[5] 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)).

         The 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 ...

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