|
(Cite
as: 302 S.W.3d 896) |
Court
of Appeals of Texas,
Waco.
In
the Interest of J.J.C., a Child
and
In
the Interest of A.M.C., a Child.
Nos.
10-09-00269-CV, 10-09-00270-CV.
Dec.
30, 2009.
*898
Nita C. Fanning, Law Office of Nita Fanning, Waco, TX, for
Appellant/
John
W. Segrest, McLennan County District Attorney, Waco, TX, for
Appellee/
Beverly
A. Crowden, Terrell & Crowden PC, Joseph M. Layman, Attorney at Law, Waco,
TX, for Real Party in Interest.
Before
Chief Justice GRAY, Justice REYNA, and Justice DAVIS.
OPINION
& ABATEMENT ORDER
TOM
GRAY, Chief Justice.
Laura
C. appeals a judgment terminating the parent-child relationship between her and
her two children, J.J.C. and A.M.C. A jury determined that the parent-child
relationship should be terminated based on Texas Family Code Section 161.001(1)
and that termination was in the children's best interest. FN1
TEX. FAM.CODE ANN. ? 161.001 (Vernon 2009). Laura's four complaints on appeal
all hinge on the issue of whether the Indian Child Welfare Act of 1978's
protections should have been applied to the termination case. 25 U.S.C.A. ??
1901-1963 (2001). Because we find that the Department knew that the children
were possibly Indian children and the trial court had reason to believe that the
children were Indian children also, we abate this cause and remand to the trial
court so that proper notice may be sent to the proper individuals, and after
proper notice, for a hearing to determine whether J.J.C. and A.M.C. are Indian
children as defined in the Indian Child Welfare Act. Upon reinstatement, we will
conditionally reverse the judgment if, after notice and a hearing, the trial
court finds that they are Indian children, and will remand so that a new trial
shall be conducted using the standards and protections required by the ICWA. If,
after notice and a hearing, the trial court finds that the children are not
Indian children as defined in the ICWA, then upon reinstatement, we will issue a
judgment that the trial court's judgment of termination is affirmed because
Laura C. does not challenge the findings based on section 161.001.
FN1.
The father of the children, David C., executed affidavits of relinquishment and
is not appealing the termination of his parental rights.
Preservation
of Error
[1]
The State contends that Laura has waived this issue in several ways, which we
must first address in order to determine whether this issue is properly before
us. Laura did not object to the failure to apply the ICWA at the trial court,
nor did she object to the charge as containing improper standards of review and
incorrect questions regarding the findings necessary for termination of her
parental rights. Additionally, Laura did not raise the trial court's failure to
apply the ICWA in her statement of points of error on appeal pursuant to Family
Code Section 263.405. The issue then becomes whether or not the *899
ICWA preempts state law in these regards.
Federal
Preemption
[2]
Federal law preempts state law when: (1) Congress has expressly preempted state
law, (2) Congress has installed a comprehensive regulatory scheme in the area,
removing the entire field from the state realm, or (3) state law directly
conflicts with the force or purpose of federal law. In
re W.D.H.,
43 S.W.3d 30, 35-36 (Tex.App.-Houston [14th Dist.] 2001, pet. denied)
(citing
Cardinal
Towing & Auto Repair, Inc. v. City of Bedford, Tex.,
180 F.3d 686, 690 (5th Cir.1999)).
[3]
Congress has not expressly stated that by enacting the ICWA it was preempting
state law concerning child custody proceedings, nor has Congress stated an
intention for the ICWA to occupy the area of child custody proceedings
completely. W.D.H.,
43 S.W.3d at 35-36. Therefore, in order to find federal preemption of the
relevant provisions set forth in the Family Code, we must find that they are in
conflict with the ICWA. Id.
There are two types of conflict preemption: (1) it is impossible to comply with
both the federal and state law, and (2) the state law stands as an obstacle to
the accomplishment and execution of congressional objectives. W.D.H.,
43 S.W.3d at 36; Railroad
Comm'n of Tex. v. Lone Star Gas Co.,
844 S.W.2d 679, 694 (Tex.1992) (citing
Northwest
Cent. Pipeline Corp. v. State Corp. Comm'n of Kan.,
489 U.S. 493, 509, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989)).
Texas
state rules require preservation of error by the complaining party at the trial
court in order to raise an issue on appeal and Section 263.405 of the Texas
Family Code requires that a statement of points of error on appeal by the parent
is necessary in order for the appellate court to consider an issue in a
termination case where the Department is involved. However, section 1912 of the
ICWA places the burden of determining the issue of whether the ICWA applies on
the Department and the trial court, which is in conflict with the state rules
regarding preservation of error by the parent. Compare
25 U.S.C.S. ? 1912 with
TEX.R. CIV. P. 279 and TEX.R.APP. P. 33.1. Additionally, section 1914 of the
ICWA regarding post-judgment attacks on involuntary terminations for violations
of the notice requirements in ICWA are in conflict with the Family Code
requirements of bringing complaints in a statement of points of error on appeal.
Compare
25 U.S.C.S. ? 1914 with
TEX. FAM.CODE ANN. ? 263.405(d) & (i) (Vernon 2008). We hold that the
provisions of the ICWA allowing post-judgment challenges to involuntary
termination proceedings preempt the Texas rules and statutes regarding
preservation of error.
Accordingly,
we find that the protections enumerated in the ICWA are mandatory as to the
trial court and the Department, that they preempt state law, and the failure to
follow the ICWA may be raised for the first time on appeal. See
25 U.S.C.A. ? 1914 (Indian child, parent of child, or tribe may petition any
court of competent jurisdiction to set aside involuntary termination for failure
to comply with the ICWA).
Indian
Child Welfare Act of 1978
[4]
Congress passed the Indian Child Welfare Act in response to the ?rising concern
in the mid-1970's over the consequences to Indian children, Indian families, and
Indian tribes of abusive child welfare practices that resulted in the separation
of large numbers of Indian children from their families and tribes through
adoption or foster care placement, usually in non-Indian homes.? Miss.
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 32, 109 S.Ct. 1597, 1599-1600, 104 L.Ed.2d 29 *900
(1989); see
also In
re W.D.H.,
43 S.W.3d at 34. The ICWA applies to all state child custody proceedings
involving an Indian child when the court knows or has reason to know an Indian
child is involved. 25 U.S.C.A. ? 1912(a); Doty-Jabbaar
v. Dallas County Child Protective Servs.,
19 S.W.3d 870, 874 (Tex.App.-Dallas 2000, pet. denied). And an Indian child is
defined by the ICWA as an ?unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b) is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe.? 25
U.S.C.A. ? 1903(4). The ICWA, however, does not define what constitutes being a
?member? or ?being eligible for membership.? See
25 U.S.C.A. ? 1903(4). Each tribe has its own criteria for determining tribe
membership. See
In
re R.R.,
294 S.W.3d 213, 217-18 (Tex.App.-Fort Worth 2009, no pet.).
The
Bureau of Indian Affairs has created guidelines for state courts to use in
Indian child custody proceedings to assist with the interpretation of the ICWA.
See
Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979). While these guidelines do not
have binding legislative effect, two other courts of appeals have used the
Guidelines in interpreting the ICWA. See
In
re R.R.,
294 S.W.3d at 217; see
also Yavapai-Apache
Tribe v. Mejia,
906 S.W.2d 152, 163-64 (Tex.App.-Houston [14th Dist.] 1995, orig.
proceeding).
The
Guidelines state that ?[p]roceedings in state courts involving the custody of
Indian children shall follow strict procedures and meet stringent requirements
to justify any result in an individual case contrary to these preferences.? BIA
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at
67,586. The Guidelines further direct that any ambiguities between the ICWA and
all regulations, guidelines, and state statutes relating to the ICWA shall be
resolved in favor of the result that is most consistent with the ICWA's
preferences of keeping Indian children with their families or other Indian
families. Id.
Specific
instructions are provided in the guidelines for the determination of the status
of an alleged Indian child. The burden is placed on the trial court to seek
verification of the child's status through either the Bureau of Indian affairs
or the child's tribe. Id.
at 67,586 (?the court shall seek verification of the child's status?). Further,
the Guidelines provide that ?[c]ircumstances 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 support has discovered information which suggests
that the child is an Indian child.? Id.
The
commentary to section B.1. of the Guidelines also indicates that it is the trial
court's and the petitioner's burden to make inquiry sufficient to affirmatively
determine whether the child is an Indian or not. BIA Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,586.
[5]
Therefore, we hold that it is the duty of the trial court and the Department of
Family and Protective Services to send notice in any involuntary proceeding
?where the court knows or has reason to know that an Indian child is involved.?
25 C.F.R. ? 23.11 (2008). The requirements of the notice are enumerated in
section 23.11, including the name of the Indian child, the child's birthdate and
birthplace, the name of the tribe or tribes in which the *901
child may be eligible for enrollment, ?all names known, and current and former
addresses of the Indian child's biological mother, biological father, maternal
and paternal grandparents and great grandparents ... including maiden, married
and former names or aliases; birthdates; places of birth and death; tribal
enrollment numbers and/
Section
23.11 also requires that the notice be sent to the ?appropriate Area Director?
and the Secretary of the Interior. Id.
? 23.11(a), (b), and (f). Upon receiving the notice, the Secretary of the
Interior or his designee is obliged to make reasonable documented efforts to
locate and notify the tribe within fifteen days or to notify the trial court how
much time is needed to complete the search for the child's tribe. Id.
? 23.11(f).
The
Notice
[6][7]
The case involving A.M.C. was originally filed in Hill County on January 17,
2008 and transferred to McLennan County on June 13, 2008 after the birth and
subsequent removal of J.J.C. in McLennan County. It is unclear from the record
as to what triggered the Department's inquiry into the status of A.M.C. as an
Indian child in Hill County; however, the Department, through one of its
attorneys in Austin, sent a notice pursuant to ICWA and filed a copy of it with
the trial court in the Hill County case on May 8, 2008. According to the report
attached to the notice, the caseworker for the Department prepared her report
with the child's information to be sent pursuant to the ICWA on April 7,
2008.
According
to the Guidelines, we find that the trial court had reason to believe that
A.M.C. and J.J.C. are Indian children because a public or state-licensed agency
involved in child protection services or family support, the Department,
discovered information that the children's maternal grandmother was alleged to
be a member of the Chippewa Indian Nation which suggests that A.M.C. and J.J.C.
are Indian children. BIA Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. at 67,586. Once the trial court had reason to believe
that A.M.C. and J.J.C. were Indian children, the notice provisions of the ICWA
were triggered and are mandatory. Id.
(providing that 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 BIA or the child's tribe
(emphasis added)).
The
notice sent regarding A.M.C. lists multiple persons and agencies notified of
this cause; however, the notice does not contain all of the information required
in section 23.11. 25 C.F.R. ? 23.11. Some of this information was available to
the Department such as the child's birthplace. The mother's maiden name and
prior addresses were not included nor was her place of birth. The only ancestral
information included was that of Laura' mother, which consisted of her name,
date of birth, reported tribe (Chippewa) and membership number. The record is
silent as to any response by any tribe, the Area Director, or the Secretary of
the Interior. Further, no additional notice was sent regarding a different court
date than the one listed nor notification that the cause had been transferred
prior to the date listed in the notice for the next hearing.
It
is undisputed that there was not a notice sent to any person at any time
regarding J.J.C. It is further undisputed that there was no compliance with the
other requirements of the ICWA at the trial, such as the requirements of experts
in Indian cultural issues or a finding beyond a reasonable doubt at the
termination *902
hearing that the ?continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the
child.? 25 U.S.C.S. ? 1912(f).
[8]
The 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). A violation
of the ICWA notice provisions may be a cause for invalidating the termination
proceedings at some future point in time. See
25 U.S.C.A. ? 1914 (providing that ?[a]ny Indian child who is the subject of any
action for ... termination of parental rights under State law, any parent ...
from whose custody such child was removed, and the Indian child's tribe may
petition any court of competent jurisdiction to invalidate such action upon a
showing that such action violated any provision of sections 1911, 1912, and 1913
of this title?); see
also In
re W.D.H.,
43 S.W.3d at 38-39 (recognizing parent of Indian child has standing to challenge
adequacy of notice even though tribe declined to join suit).
The
State contends that any failures to comply with the ICWA were harmless. However,
in light of the explicit language of the ICWA and the Guidelines, we do not find
this argument has any merit. We sustain Laura's first issue that the trial court
erred in failing to properly notify the tribe as required by the ICWA. Because
of our holding regarding the failure to properly send notice as required by the
ICWA, we do not address Laura's second, third, and fourth issues.
The
Remedy
[9]
We agree with the Fort Worth Court of Appeals that the proper remedy in this
situation is to remand the case so that proper notice may be provided, and that
we will conditionally affirm the termination judgment in the event that it is
determined that A.M.C. and J.J.C. are not Indian children. See
In
re R.R., Jr.,
294 S.W.3d at 227; TEX.R.APP. P. 44.4.
Laura
attached exhibits to her brief to this Court that included an affidavit from the
director of the Indian Child Welfare Office of the White Earth Band of Ojibwe
confirming Laura's membership in the tribe and other documentation, which
indicate that the children are eligible for membership in the tribe. The State
has not objected to those exhibits. However, we believe it is more appropriate
for the trial court to determine this issue.
We
will abate this appeal and remand this case to the trial court. The trial court
will ensure that proper notice that complies with the statutory notice
requisites shall be provided. The trial court shall then conduct a hearing to
determine whether A.M.C. and J.J.C. are Indian children under the ICWA.
See
Tex.R.App. P. 44.4 (appellate court shall not reverse or affirm judgment if
trial court can correct erroneous failure to act, and appellate court authorized
to direct trial court to correct erroneous failure to act and to then proceed as
if erroneous failure to act had not occurred). We order that the records
generated by the hearing in the trial court be supplemented in this Court. After
we receive this supplemental record, this appeal will be reinstated. If, after
proper notice and a hearing, the trial court has determined that A.M.C. and
J.J.C. are not Indian children, then we will issue a judgment affirming the
trial court's termination judgment. See
TEX.R.APP. P. 43.2(a). If, after notice and hearing, the trial court determines
that A.M.C. and J.J.C. are Indian children, then this court shall issue a
judgment reversing the trial court's termination judgment, and the trial court
shall conduct a new trial applying the ICWA. See
TEX.R.APP. P. 43.2(d).
*903
Conclusion
We
find that the trial court did have reason to believe that A.M.C. and J.J.C. were
Indian children and that the trial court erred in failing to ensure that proper
notice was given to the appropriate individuals and agencies. We abate this
cause to the trial court as stated above. If, after notice and a hearing, the
trial court determines that A.M.C. and J.J.C. are not Indian children, then the
termination order will be affirmed. If, after notice and a hearing, the trial
court determines that A.M.C. and J.J.C. are Indian children, then the
termination judgment of the trial court will be reversed and the trial court
must conduct a new trial applying the requirements and standards of the
ICWA.