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In re S.J.H.

Court of Appeals of Texas, Eighth District, El Paso

December 9, 2019

IN THE INTEREST OF S.J.H., A Child.

          Appeal from the 65th District Court of El Paso County, Texas TC# 2017DCM7953

          Before Rodriguez, J., Palafox, J., and McClure, Senior Judge McClure, Senior Judge (Sitting by Assignment)

          OPINION

          YVONNE T. RODRIGUEZ, Justice

         This is a parental rights termination case implicating the Indian Child Welfare Act. S.J.H. is the daughter of D.B. (Mother) and N.K.H. (Father). Father, who claimed Indian ancestry through three tribes, voluntarily relinquished his parental rights to S.J.H. and is not a party to this appeal. Mother, who does not claim Indian ancestry, had her parental rights to S.J.H. involuntarily terminated following a bench trial. She appealed the termination order to this Court.

         On appeal, Mother contends that the trial court erred procedurally by terminating her parental rights without first definitively determining whether S.J.H. qualified for tribal membership and without following the procedures and standards required by the Indian Child Welfare Act. Mother also argues that even if the Indian Child Welfare Act does not apply, the trial court erred substantively by finding grounds for termination, by finding that termination was in S.J.H.'s best interest, and by failing to allow one of Mother's relatives to intervene in the custody proceedings.

         We will reverse the judgment of the trial court and remand for further proceedings.

         BACKGROUND

         In October 2017, shortly after S.J.H. was born, the Texas Department of Family and Protective Services (the Department) began investigating allegations that Mother was neglectfully supervising S.J.H. due to Mother's postpartum depression and use of marijuana. The Department also received information that Mother was having dreams of harming S.J.H.

         In an affidavit, Carmelo Morales attested that during a home visit on October 25, 2017, he made contact with Father and Mother. According to Morales, the home was "filthy with piles of dirty clothes scattered throughout the living area, the dining area and other parts of the home. There were dishes, containers of various sorts and other household items scattered and cluttered throughout the home." Father and Mother disclosed marijuana use, with Mother smoking marijuana two days before the home visit to calm down because the baby was crying, and she did not know what to do. Morales attested that Father disclosed that Mother had smoked marijuana when she was six months pregnant. Mother was referred to both inpatient and outpatient mental health treatment after making statements that she had thoughts about hurting her newborn daughter and for severe cannabis use disorder, but Mother did not comply. Mother and Father were asked to obtain Medicaid, food stamps, and WIC during the course of the investigation, but they did not comply, leaving S.J.H. without medical care. S.J.H. did not have her two-month checkup and was not immunized.

         During a November 20, 2017, home visit, Morales reported that Mother and Father were yelling, screaming, and cursing at one another while S.J.H. was crying; Morales stated that he asked them several times to stop and told Mother to pick up S.J.H. and comfort her. On November 28, 2017, the Department received new allegations in a second intake that Mother had not been taking care of S.J.H., that S.J.H. smelled of urine and body order, that she had a very red rash under her neck, that she had not been bathed in days, that her clothes were soaking wet and not properly washed, and that the baby bottles were not properly washed. Both Father and Mother stated that they were not from Texas and did not have relatives or friends they could rely on for help. Mother stated that Maternal Grandmother could not financially take in another child and that Maternal Grandfather had kicked her out of his home. Father stated he did not get along with Paternal Grandmother and that she was not an option for placement.

         Following this investigation, the Department removed S.J.H. from the home; filed an original petition for protection of a child, for conservatorship, and for termination in a suit affecting the parent-child relationship in November 2017; and was named S.J.H.'s temporary sole managing conservator.

         On January 8, 2018, the trial court ordered Mother to complete a service plan developed by the Department in order to regain custody of S.J.H. The Department's original service plan for Mother required her to: (1) complete a psychiatric evaluation and follow all recommendations; (2) submit to random drug and alcohol testing as requested by the Department, with a failure or refusal to submit regarded as a positive test result; (3) participate in parenting classes and provide a certificate of completion; and (4) complete an OSAR substance abuse evaluation and follow all recommendations.

         Two days after the trial court issued the order implementing the service plan, on January 10, 2018, the Department filed a status report indicating that S.J.H. may be an Indian child as reported by Father, and that S.J.H.'s Indian child status was yet to be determined. On March 14, 2018, the Department sent notice to the Bureau of Indian Affairs the S.J.H.'s tribe could not be located or determined. On May 10, 2018, the Department filed a permanency report to the trial court that again identified S.J.H. as a possible Indian child. The permanency report also detailed incidents of Mother's alleged noncompliance with the family reunification order. The CASA report stated that Mother and Father were homeless, did not have reliable transport, and did not complete psychological evaluations, but that Mother was visiting and interacting with S.J.H.

         On May 22, 2018, the Department filed a first amended petition for child protection, conservatorship, and parental rights termination noting that Father had executed a voluntary relinquishment of his parental rights and that the Department would serve required notices of pending custody proceedings involving an Indian child on the proper parties. The Department also asked the trial court to make findings under the terms of the ICWA. The Department amended its petition a second time on October 3, 2018, but still requested termination pursuant to the terms of the ICWA. With respect to Mother, the Department sought involuntary termination of parental rights on two grounds: Tex.Fam.Code Ann. §§ 161.001(b)(1)(O)(failure to comply with provisions of a court order specifically establishing actions necessary to obtain return of the child), and 161.001(b)(1)(P)(use of a controlled substance in a manner that endangered the health or safety of the child and noncompliance with treatment).[1] It is uncontested that this was the live pleading at issue in this case.

         At a final hearing on November 9, 2018, at which the trial court terminated Father's rights following Father's agreement to voluntarily relinquish his rights, Department caseworker Rosalva Miranda testified that Father informed her he may be a member of the Blackfoot tribe and the Cherokee tribe. When asked if the Department sent out notices of inquiry to those tribes seeking to find out if the child was a member of that tribe, Miranda responded, "[t]hat's correct." The exhibit volume shows that notices went out return-receipt requested to numerous tribes and entities including:

• The Blackfeet Tribe of Montana/Blackfeet Nation;[2]
• The Chippewa Cree Tribe of the Rocky Boys;
• The Minnesota Chippewa Tribe;
• The Chiricahua Apache NDE Nation;
• The BIA's Rocky Mountain Regional Director; and
• The BIA's Albuquerque Regional Director.

         However, there is no evidence in the record showing that notice was sent to Cherokee tribal officials, and as we explain below in the Discussion section, the Department in its brief on appeal does not contest Mother's assertion that notice did not go out to Cherokee officials. The transcript from Father's final termination hearing indicates that at the time Father's rights were terminated, S.J.H. was living with a foster family.

         On January 10, 2019, R.C.-1 and R.C.-2 (the Foster Parents) filed a petition to intervene in this suit and be named sole managing conservators.

         In April 2019, the Department filed another service plan for Mother. The service plan stated that Mother had not complied with the requirements to start or complete parenting classes and to complete a psychiatric evaluation, nor had she consistently submitted to requested drug tests or completed drug treatment. On June 3, 2019, the ...


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