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In re Y.J.

Court of Appeals of Texas, Second District, Fort Worth

December 19, 2019

In the Interest of Y.J., a Child

          On Appeal from the 323rd District Court Tarrant County, Texas Trial Court No. 323-107644-18

          Before Sudderth, C.J.; Gabriel and Birdwell, JJ.

          Chief Justice Sudderth and Justice Gabriel concur without opinion.


          Wade Birdwell Justice

         This unusual appeal is from an order terminating parental rights, but neither parent has appealed, the Department of Family and Protective Services (Department) was dismissed and has not appealed, and no appealing party challenges the termination. Instead, three intervenors--the Navajo Nation, the Office of the Attorney General of the State of Texas (AG), and two of the nonparents the trial court named as joint managing conservators for the child, C.B. and J.B. (the Bs)-- appeal the part of the trial court's order naming the Bs and the child's Navajo maternal great-aunt A.J. the child's joint managing conservators.

         At trial and on appeal, the majority of the parties' arguments have centered on the constitutionality of the federal Indian Child Welfare Act (ICWA) and its applicability to this case. If constitutional, ICWA applies to certain aspects of this case because the child at issue is Navajo through her biological mother (Mother). See 25 U.S.C.A. §§ 1901-63. At the heart of the dispute is whether ICWA's post-termination placement preferences--which favor placement of an Indian child with Indian families--control, or whether the trial court should apply solely Texas law regarding the child's best interest. Id. § 1915 (mandating that Indian child be placed in a preadoptive or adoptive placement with Indian relatives, the child's tribe, or any other Indian family absent good cause not to do so); Tex. Fam. Code Ann. § 153.002 ("The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.").

         The Navajo Nation contends that ICWA is constitutional and mandates placing the child solely with A.J.[1] The AG and the Bs claim that ICWA is unconstitutional under both the United States and Texas Constitutions, that it does not pre-empt Texas law and therefore cannot be applied to these proceedings, and that the trial court abused its discretion under Texas law by naming A.J. as one of the child's joint managing conservators along with the Bs.

         The trial judge purported not to determine ICWA's constitutionality under the United States Constitution. Instead, he held that even if ICWA does not violate the United States Constitution, it nevertheless does not apply to this proceeding because (1) ICWA violates the anticommandeering doctrine and therefore cannot validly preempt Texas law and (2) Family Code Section 152.104, which the judge concluded attempts to engraft ICWA into Texas law, violates the Texas constitution.

         After considering the record and procedural posture of this case--taking into account the ultra-accelerated nature of this appeal--we conclude we need not decide at this time whether ICWA is constitutional; regardless of ICWA's application, the trial court committed reversible error requiring a new trial on conservatorship. We therefore reverse only the part of the trial court's order naming the Bs and A.J. joint managing conservators for the child, and we remand the case for a new trial on that issue.

         Pretrial Factual and Procedural Background

         Removal and initial placement efforts

         On June 13, 2018, the Department filed a petition seeking conservatorship of Y.J. or termination of her parents' rights because Y.J. had tested positive for marijuana, amphetamines, and methamphetamines at birth. In the attached affidavit, a Department caseworker averred that Mother had told Texas Child Protective Services (CPS) workers that she is a member of the Navajo tribe and that the workers had contacted the tribe to seek Navajo tribal members for foster placement. Mother named more than one man as a possible father; at least one of those men requested DNA testing and was excluded as Y.J.'s biological father. The Department alleged that it had attempted to contact some of Mother's suggested placements, but none were suitable. It also alleged that Mother had an extensive history with New Mexico CPS, that seven of her other children had been removed from her care, and that "the Tribal Council" had placed four of those children with relatives. The caseworker stated further in the affidavit that one of Mother's other children had been removed in Texas when the maternal grandmother--who allegedly had a New Mexico CPS history and with whom Mother had left the child--had tested positive for methamphetamine use. The affidavit also stated that the Navajo Nation was "working to locate a potential Navajo foster home for placement."

         An associate judge signed an order naming the Department Y.J.'s temporary sole managing conservator.

         Mother waived service of citation. After the statutory temporary adversary hearing, see Tex. Fam. Code Ann. § 262.201, the trial court ordered Mother and the child's alleged fathers to submit the Section 261.307[2] Child Placement Resources Form and specifically found, "the Department . . . does not have the option of placing the child with a relative [or] other designated caregiver." The order also noted that the "inquiry regarding the child or family's possible Indian ancestry [was] not complete due to ex parte proceedings or similar circumstances." The Department placed Y.J. in a non-Indian foster home.

         Four days after the adversary hearing, the Navajo Nation sent a letter stating that Y.J. was eligible for "ICWA[] service" and that the Navajo Nation would assign an ICWA social worker to the case to coordinate services with the Department.

         Identification of first ICWA-compliant home

         Although a caseworker noted in the child's June 2018 service plan, "Worker will engage with the Navajo Nation to discuss possible placements," she also stated that the Navajo Nation had not contacted the Department about what it could do to preserve the child's heritage. In a July 2018 status report, a CPS specialist told the trial court that the Navajo Nation had identified an ICWA-compliant home as a possible placement.

         Around the same time, the Department filed a Motion for Expedited Placement Under the Interstate Compact for the Placement of Children (ICPC), [3] in which it sought an expedited placement of the child with a Colorado family identified by the Navajo Nation. The Navajo Nation had also sent the Department a "favorable Navajo Adoption Home Study" on the family. The nine-page, detailed report discusses the suitability of the couple and the man's Navajo heritage and family ties. It further notes that although the man had a "finding" on an Arizona background check, the offense was over twenty years old (i.e., when he was twenty-one or younger) and his lifestyle had changed for the better.

         The trial court approved the placement in late July 2018 and ordered the Department to expedite its compliance with the ICPC to effectuate the placement. But the Department's attempts to comply with the ICPC for this placement were repeatedly rejected for administrative reasons, such as missing records and lack of a social security number for Y.J. After a second failed attempt in October 2018, the Department stopped trying to comply with the trial court's order because, by that time, a Texas federal judge had held ICWA unconstitutional in a case in which the State of Texas is a party. See Brackeen v. Zinke, 338 F.Supp.3d 514, 536-46 (N.D. Tex. 2018), rev'd, 937 F.3d 406 (5th Cir. 2019), reh'g en banc granted, 942 F.3d 287 (5th Cir. 2019). The Department never placed Y.J. with the Colorado family, [4] and she stayed with her Texas, non-ICWA-compliant foster placement.

         Interventions related to Y.J.'s placement

         In late November 2018, the Navajo Nation intervened in the Department's suit and immediately sought removal of the case to a tribal court under ICWA. The Bs, who by that time had adopted Y.J.'s three-year-old half sibling Alan, [5] also intervened seeking termination of Y.J.'s parents' rights, adoption of Y.J., and appointment as Y.J.'s permanent managing conservators. The Bs, along with Mother, [6] opposed removal of the case to a tribal court. The Navajo Nation opposed placement of Y.J. with the Bs.

         After the Bs intervened, Mother signed an affidavit that was filed in the clerk's record; the affidavit contains a certificate of service from Mother's appointed counsel. In the affidavit, Mother asked the trial court to place Y.J. with the Bs "as soon as possible . . . [to] allow her to be placed with her sibling (who is also a Navajo member)." Mother averred that placement with the Bs allowed Y.J. "reasonable proximity to [Mother], her home, [and] extended family and siblings." Mother also signed a Section 261.307 form naming the Bs as "relatives or close family friends" who could take care of Y.J.

         On December 3, 2018, the Fifth Circuit Court of Appeals stayed enforcement of the Northern District trial judge's order determining that ICWA is unconstitutional.

         Later that month, the Navajo Nation filed a Motion for Placement of the Child, urging the trial court to place Y.J. with the Colorado family that the Navajo Nation had originally identified and complaining that the Department had not complied with the July 2018 order requiring it to do so. The Bs responded by moving to have Y.J. placed with them. They also opposed the Navajo Nation's motion, arguing that if ICWA does not apply, Texas law favors placement with them because they had adopted Alan. Cf. 40 Tex. Admin. Code § 700.1309(3) (setting forth factors Department considers in placing children in substitute care and including as a factor that "[s]iblings removed from their home should be placed together unless such placement would be contrary to the safety or well-being of any of the siblings"). They argued alternatively that good cause existed to depart from ICWA's placement preferences.

         Thus began a course of briefing in the trial court on ICWA's constitutionality, with the Bs challenging its constitutionality and the Navajo Nation advocating its constitutionality. The AG filed an amicus curiae brief in support of the Bs, challenging the constitutionality of ICWA on the same grounds and also urging placement of Y.J. with the Bs.

         In January 2019, the Navajo Nation amended its placement request and instead moved to have Y.J. placed with Mother's great-aunt A.J.--a Navajo who lives on the reservation in Arizona near Y.J.'s four oldest half siblings, [7] who live with another great-aunt--and, alternatively, with the Colorado couple. The Navajo Nation also moved to dismiss the Bs' intervention for lack of standing. The trial court denied that motion.

         In March 2019, the trial court issued a ruling on ICWA's applicability, making the following findings:

The Court acknowledges multiple claims under the United States Constitution, but is providing deference to the United States Court of Appeals for the Fifth Circuit Stay Pending Appeal dated December 3, 2018, and conscientiously refraining from ruling on those matters in this order of the court.
The Court finds . . . Texas Family Code §152.104(a) to be in violation of Article I, Section 1 of the Texas Constitution and inapplicable to the proceedings in this matter.
The Court finds . . . Texas Family Code § 152.104(a) to be in violation of Article I, Section 3 of the Texas Constitution and inapplicable to the proceedings in this matter.
The Court finds . . . Texas Family Code § 152.104(a) to be in violation of Article I, Section 3a of the Texas Constitution and inapplicable to the proceedings in this matter.
The Court finds . . . Texas Family Code § 152.104(a) to be in violation of Article I, Section 19 of the Texas Constitution and inapplicable to the proceedings in this matter.
The Court finds . . . Texas Family Code § 152.104(a) to be in violation of Article I, Section 29 of the Texas Constitution and inapplicable to the proceedings in this matter.

         The court also held,

The Court, having reviewed the Motion to Declare ICWA Inapplicable as Unconstitutional, any responses and reply thereto, the evidence presented, the pleadings on file, the arguments of the parties, and the applicable law, is of the opinion that the Motion to Declare ICWA Inapplicable as Unconstitutional should be GRANTED.
IT IS HEREBY ORDERED that Texas Family Code 152.104, is unconstitutional and inapplicable to these proceedings.

         Despite this ruling, neither the Bs nor the Department moved to strike the Navajo Nation's intervention.

         Final trial was set for May 3, 2019. Although A.J. intervened before final trial, the trial court dismissed her intervention petition for lack of standing.[8]

         A little less than a month before trial, Mother signed a voluntary affidavit of relinquishment of her parental rights; in it, she designated the Department as Y.J.'s managing conservator and stated that she preferred that Y.J. be placed with the Bs for adoption.

         At trial, the Department, the Navajo Nation, and the Bs all supported termination of Y.J.'s parents' rights and appointment of the Department as Y.J.'s permanent managing conservator. The Department and the Navajo Nation recommended that Y.J. be placed with A.J., [9] but the Bs advocated placing Y.J. with them and asked to be named possessory conservators so that the Department would not place Y.J. with A.J. after being named permanent managing conservator. The trial court ordered on the record that Mother's and all alleged fathers' rights be terminated, but instead of naming the Department Y.J.'s permanent managing conservator, the trial court named the Bs and A.J. joint managing conservators and designated the Bs as the primary persons to designate Y.J.'s residence, so long as Y.J. was living within two states of Arizona (including Texas). The trial court stated its intention to treat the Bs and A.J. as if they were divorced parents residing more than 100 miles apart, but with a stair-step schedule for A.J.'s possession, beginning with one week in summer 2019, two weeks in summer 2020, and so on until Y.J. turned five, when A.J. would have extended summer possession. The trial court dismissed the Department from the suit.[10]

         After trial, the AG also intervened in the suit and filed a motion for new trial. The AG continued to support placement of Y.J. with the Bs.

         The trial judge did not sign an order of termination until almost two months after trial. The order is consistent with the trial judge's ruling on the record and provides a detailed possession schedule, which until 2023 gives A.J. exclusive possession of Y.J. only during the stair-stepped weeks in the summer. Beginning in 2023, when Y.J. turns five, the order provides for possession by A.J. one weekend each month, one week every spring, and extended summer possession. The order provides that the Bs have the right of possession of Y.J. "at all other times not specifically designated" for A.J.

         The only parties that appealed the trial court's judgment are the Bs, the AG, and the Navajo Nation. Because the Department did not file a notice of appeal, and no party has argued that just cause exists for rendering a judgment that the Department be named managing conservator, we do not consider that as a choice for our disposition. See Tex. R. App. P. 25.1(c); see also Tex. Fam. Code Ann. § 161.207(a) (requiring trial court to appoint "suitable, competent adult" as managing conservator after termination if not appointing the Department). Thus, the only dispute before this court is whether the trial court's awarding joint managing conservatorship to the Bs and A.J. should stand. The Navajo Nation asks us to reverse and render a judgment that Y.J. be placed in accordance with ICWA preferences (or in the alternative, to remand for ICWA-compliant proceedings); the Bs and the AG ask us to hold ICWA unconstitutional, reverse the trial court's order, and render judgment that the Bs be named Y.J.'s sole managing conservators so that they may adopt her. Because we determine that the trial court abused its discretion in making its joint-managing-conservatorship ruling, necessitating a remand for a new trial, regardless of whether ICWA applies, we do not reach the constitutionality of ICWA. But we do not foreclose the trial court's reconsidering the issue and ruling on it in the remanded proceedings.

         The Bs Have Standing In This Suit

         In its fifth issue, [11] the Navajo Nation argues that the Bs lacked standing to seek placement of Y.J. with them or appointment as managing conservators. According to the Navajo Nation, Family Code Section 102.005(4), on which the Bs relied to intervene in the suit, allows a party to seek only adoption or termination and adoption, not placement or appointment as a managing conservator. The Navajo Nation also argues that Section 102.005 allows a party to file only an original suit, not an intervention, because the statute does not specifically say that it allows intervention.

         Section 102.005 provides that "[a]n original suit requesting only an adoption or for termination of the parent-child relationship joined with a petition for adoption may be filed by . . . an adult who has adopted, or is the foster parent of and has petitioned to adopt, a sibling of the child." Tex. Fam. Code Ann. § 102.005(4). The Navajo Nation does not dispute that the Bs have adopted Alan.

         As a general rule, an individual's standing to intervene is commensurate with that individual's standing to file an original lawsuit. In re A.C., Nos. 10-15-00192-CV, 10-15-00193-CV, 2015 WL 6437843, at *9 (Tex. App.-Waco Oct. 22, 2015, no pet.) (mem. op.); Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (op. on reh'g) ("Generally, an intervenor must show standing to maintain an original suit in order to intervene."). A party's standing to file an original suit affecting the parent-child relationship is typically governed by Family Code Sections 102.003, 102.004, and 102.005. Tex. Fam. Code Ann. §§ 102.003-.005; A.C., 2015 WL 6437843, at *9; see In re Smith, 262 S.W.3d 463, 467 (Tex. App.-Beaumont 2008, orig. proceeding [mand. denied]). A party who has standing to file an original suit under Section 102.005 may also file an intervention under that same statute. A.C., 2015 WL 6437843, at *8-9.

         The Navajo Nation acknowledges the holdings of A.C. and Whitworth but argues that by not specifically mentioning intervention, the plain language of Section 102.005 allows only the filing of an original suit, not an intervention. The Navajo Nation cites no authority supporting this proposition, and we have not found any. It discusses the holding in Whitworth--in which the court discussed Family Code Section 102.004(b), which specifies which parties can intervene in a suit affecting the parent- child relationship--but Whitworth does not support the Navajo Nation's argument. 222 S.W.3d at 621-22. Section 102.004(b) provides standing to intervene to certain parties who do not have standing under another Family Code provision to file an original suit. See Tex. Fam. Code Ann. § 102.004(b); In re N.L.G., 238 S.W.3d 828, 830 (Tex. App.--Fort Worth 2007, no pet.); In re A.M., 60 S.W.3d 166, 169 (Tex. App.- Houston [1st Dist.] 2001, no pet.). But the Bs do have standing to file an original suit under Section 102.005(4), and that section does not expressly prohibit a party with original standing from intervening in a suit. Nor does any other Family Code provision. But cf. Tex. Fam. Code Ann. § 102.006 (limiting standing of certain parties who would otherwise have standing to file an original suit affecting the parent-child relationship). Therefore, we conclude that the plain language of Section 102.005(4) permits the Bs to intervene rather than bars them from intervening.

         The Navajo Nation argues, alternatively, that the Bs' standing was limited to seeking adoption only, or termination and adoption, and that the Bs have no standing to seek placement of Y.J. or managing conservatorship because Section 102.005 limits the relief they can ask for. The Bs' focus in their pleadings and at trial was for the parents' rights to be terminated so that the Bs could adopt Y.J., which is what Section 102.005 gives them standing to seek. See Turner v. Robinson, 534 S.W.3d 115, 123 (Tex. App.-Houston [14th Dist.] 2017, pet. denied) ("Standing is determined at the time suit is filed in the trial court."). Their requests for conservatorship were in response to the Department's apparent unwillingness to consider them as a placement and potential adoption choice. Additionally, because Y.J. had not been placed with them, she had not lived with them for at least six months--a prerequisite to adoption unless the trial court waives that requirement when it is in the child's best interest. See Tex. Fam. Code Ann. § 162.009. Absent the trial court's waiver, the only way the Bs could fulfill the residency prerequisite was by obtaining conservatorship and possession of Y.J.

         Here, the trial court ordered termination but not adoption in a suit in which the Bs had standing to seek them jointly. Nothing in Section 102.005 limits their standing to seek post-termination conservatorship as against the Department or any other nonparent in this instance. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (noting that because standing-in terms of a party's right to initiate a lawsuit and the trial court's power to hear it-is determined when suit is filed, subsequent events do not deprive the court of subject matter jurisdiction).

         We therefore overrule the Navajo Nation's fifth issue.

         Constitutionality of ICWA and Family ...

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