|
(Cite
as: 294 S.W.3d 213) |
Court
of Appeals of Texas,
Fort
Worth.
In
the Interest of R.R., JR. and V.R., Children.
No.
2-08-061-CV.
March
19, 2009.
*216
Dean M. Swanda, Swanda & Swanda, P.C., Arlington, TX, Marc F. Gault, Fort
Worth, TX, for Appellants.
Tim
Curry, Criminal District Attorney, Charles M. Mallin, Danielle A. Kennedy,
Melissa Paschall, Asst. Criminal District Attorneys, for Appellee.
Panel:
GARDNER, WALKER, and McCOY, JJ.
OPINION
SUE
WALKER. Justice.
I.
INTRODUCTION
Mother
and Father appeal from a judgment terminating their parental rights to R.R. and
V.R. Mother asserts as her sole issue, ?Does the Indian Child Welfare Act
[?ICWA? or ?the Act?] apply to this case?? Father raises two issues: in his
first issue, he challenges the factual sufficiency of the evidence to support
the finding that termination of his parental rights was in the best interest of
R.R. and V.R., and in his second issue, he argues that the trial court erred by
not granting a new trial in light of evidence that the ICWA may apply. We will
overrule Father's first issue. Because, according to published guidelines that
we are to give great weight to, the trial court here had reason to know that
Indian children were involved, specific statutory notices containing specific
statutorily defined information were required to be sent to specific
individuals. Although the Texas Department of Family and Protective Services
(?TDFPS?) sent out notices, those notices did not comply with the statutory
requisites. Accordingly, we will abate this appeal and remand this case to the
trial court so that proper notice may be provided to the proper individuals and
so that, after such notice, the trial court *217
may conduct a hearing and make a determination as to whether R.R. and V.R. are
Indian children under the ICWA.
II.
THE INDIAN CHILD WELFARE ACT
A.
Purposes and Relevant Provisions of the Act
[1]
Congress enacted the ICWA in 1978. Indian Child Welfare Act of 1978, 25 U.S.C.A.
?? 1901-63 (2001). The federal legislation was passed 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 (1989); see
also In
re W.D.H.,
43 S.W.3d 30, 34 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). 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 Act 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).
[2][3]
The ICWA provides a variety of procedural and substantive protections in child
custody proceedings involving an Indian child. It sets out minimum requirements
with which a state court must comply before terminating parental rights in a
case involving an Indian child. See
id.
? 1912; Doty-Jabbaar,
19 S.W.3d at 874. No termination of parental rights may be ordered in such
proceeding in the absence of a determination, supported by evidence beyond a
reasonable doubt, including testimony of a qualified expert witness, 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. See
25 U.S.C.A. ? 1912(f). Additionally, the tribe is entitled to notice of a
custody proceeding involving an Indian child and has the right to intervene at
any stage of the proceedings. See
id.
? 1912(a) (notice), ? 1911(c) (intervention). But the tribe's failure to
intervene does not mean that the ICWA does not apply; the ICWA applies when an
Indian child is involved regardless of the tribe's participation in the
proceeding. W.D.H.,
43 S.W.3d at 34; Doty-Jabbaar,
19 S.W.3d at 874.
B.
Membership or Eligibility for Membership in a Tribe
Although
the Act defines an Indian child 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,? the Act does not define what constitutes being a ?member? or what
constitutes being ?eligible for membership.? See
25 U.S.C.A. ? 1903(4).
[4][5]
Case law makes it clear, however, that enrollment in a tribe or registration
with a tribe is not the only way to establish membership. See,
e.g., In
re H.D.,
11 Kan.App.2d 531, 535-36, 729 P.2d 1234, 1238 (1986). Under the ICWA,
enrollment is not a necessary condition of tribal membership. Nelson
v. Hunter,
132 Or.App. 361, 364, 888 P.2d 124, 125-26 (Ct.App.1995). ?[M]embership may be
established through proof of enrollment [;] *218
enrollment is not the exclusive test of membership.? Id.
FN1
?Enrollment is not always required in order to be a member of a tribe. Some
tribes do not have written rolls. Others have rolls that list only persons that
were members as of a certain date.? Id.,
888 P.2d at 125; accord
In
re Junious M.,
144 Cal.App.3d 786, 791, 193 Cal.Rptr. 40, 42-43 (1983). Likewise, the ICWA
contains no blood quantum requirement; rather, each tribe has its own criteria.
See
Thomas R. Myers & Jonathan J. Siebers, ICWA:
Myths and Mistaken Application,
83 Mich. Bar. J. 12, 21 (2004).
FN1.
The Nelson
court noted that ?Congress considered and rejected proposed language which would
have restricted the application of the ICWA protections to only enrolled members
of an Indian tribe.? Id.,
888 P.2d at 126 n. 4 (citing 1978 U.S.C.C.A.N. 7530, 7538-39,
7558-63).
[6]
The ICWA's failure to provide any statutory definition of the term ?member of an
Indian tribe? or of the term ?eligible for membership? renders the ICWA
ambiguous or unclear on exactly how membership or eligibility for membership is
to be determined, especially in the absence of enrollment in or registration
with a tribe. But following the enactment of the ICWA, the Department of the
Interior issued guidelines for state courts in Indian child custody proceedings.
See
Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed.Reg. 67,584 (Nov. 26, 1979) (hereinafter referred to as
?Guidelines?).FN2
These Guidelines were not intended to have binding legislative effect.
See
id.
But construction of a statute by the executive department charged with its
administration is entitled to great weight. See
Tex. Gov't Code Ann. ? 311.023(6) (Vernon 2005); SWZ,
Inc. v. Bd. of Adjustment of City of Fort Worth,
985 S.W.2d 268, 270 (Tex.App.-Fort Worth 1999, pet. denied); see
also Stanford
v. Butler,
142 Tex. 692, 700, 181 S.W.2d 269, 273 (1944) (observing that courts will
ordinarily adopt and uphold a construction placed upon a statute by a department
charged with its administration if the statute is ambiguous or uncertain, and
the construction is reasonable); Tex.
Ass'n of Long Distance Tel. Cos. v. Pub. Util. Comm'n of Tex.,
798 S.W.2d 875, 884 (Tex.App.-Austin 1990, writ denied) (same). Following courts
from other jurisdictions, at least one Texas court has looked to the Guidelines
in construing an undefined term in the Act. See
Yavapai-Apache
Tribe v. Mejia,
906 S.W.2d 152, 163-64 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding)
(utilizing ICWA Guidelines to construe undefined term-?good cause?-in ICWA);
see
also Junious
M.,
144 Cal.App.3d at 793-94, 193 Cal.Rptr. at 43-44 (utilizing Guidelines to
construe undefined term ?member? in ICWA); H.D.,
11 Kan.App.2d at 533-36, 729 P.2d at 1237-39 (utilizing Guidelines to determine
when and under what circumstances tribal notice and opportunity to be heard
exist).
FN2.
See
Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody
Proceedings, available
at http:/
Thus,
we next examine the Guidelines for instruction on how membership or eligibility
for membership in a tribe is to be determined absent enrollment or registration
in a tribe. The Guidelines begin by recognizing that there is a preference for
keeping Indian children with their families or with other Indian families and
for deferring to tribal judgment on matters concerning custody of tribal
children. BIA Guidelines for State Courts; Indian Child Custody Proceedings, 44
Fed.Reg. at 67,586. The Guidelines state that ?[p]roceedings in state courts
involving the custody *219
of Indian children shall follow strict procedures and meet stringent
requirements to justify any result in an individual case contrary to these
preferences.? Id.
The Act and all regulations, guidelines, and state statutes relating to it
?shall be liberally construed in favor of a result that is consistent with these
preferences. Any ambiguities in any of such statutes, regulations, rules, or
guidelines shall be resolved in favor of the result that is most consistent with
these preferences.? Id.
The
Guidelines provide specific instructions on how to determine the status of an
alleged Indian child:
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 that 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 support
has discovered information which suggests that the child is an Indian
child.
....
In
any involuntary child custody proceeding, the
state court shall make inquiries
to determine if the child involved is a member of an Indian tribe or if a parent
of the child is a member of an Indian tribe and the child is eligible for
membership in an Indian tribe.
Id.
at 67,586 (emphasis added). The commentary to this section of the Guidelines,
which is titled ?B.1. Determination That Child Is an Indian,? instructs that
?[t]his guideline makes clear that the best source of information on whether a
particular child is Indian is the tribe itself. It is the tribe's prerogative to
determine membership criteria.? Id.;
see In
re Adoption of Riffle,
273 Mont. 237, 242, 902 P.2d 542, 545 (1995) (recognizing that the tribe is the
ultimate authority on eligibility for tribal membership and the tribe's
determination is conclusive); see
also Junious
M.,
144 Cal.App.3d at 788, 193 Cal.Rptr. at 40 (same). The commentary further
provides that ?[a]lthough tribal verification is preferred, a court may want to
seek verification from the BIA [Bureau of Indian Affairs] in certain
circumstances.? BIA Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed.Reg. at 67,586.
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. The commentary
explains,
The
guidelines also list several circumstances which shall
trigger an inquiry by the court and petitioners
to determine whether a child is an Indian for purposes of this Act. This listing
is not intended to be complete, but it does list the most common circumstances
giving rise to a reasonable belief that a child may be an Indian.
Id.
(emphasis added).
Thus,
according to the Guidelines, membership is to be determined by the tribe, and
the trial court and the petitioner (as evidenced by the Guidelines' use of
mandatory ?shall? language in three places) are *220
to make inquiries to resolve the issue of whether the child is an Indian when
the trial court has reason to believe that the child is an Indian because any
party says he is or because a state-licensed agency involved in child protection
services has discovered information which suggests that the child is an Indian
child. See
id.
C.
?INQUIRY? AND NOTICE
The
exact inquiry that the trial court-or here TDFPS on behalf of the trial court-is
required to make is set forth in section 23.11 of volume 25 of the Code of
Federal Regulations. 25 C.F.R. ? 23.11 (2008). That section is titled, ?Notice
of Involuntary Child Custody Proceedings and Payment for Appointed Counsel in
State Courts.? Id.
It provides, in pertinent part:
(a)
In any involuntary proceeding in a state court where the court knows or has
reason to know that an Indian child is involved, and where the identity and
location of the child's Indian parents or custodians or tribe is known, the
party seeking ... termination of parental rights to [ ] an Indian child shall
directly notify the Indian parents ... and the child's tribe by certified mail
with return receipt requested, of the pending proceedings and of their right of
intervention. Notice shall include requisite information identified at
paragraphs (d)(1) through (4) and (e)(1) through (6) of this section, consistent
with the confidentiality requirement in paragraph (e)(7) of this section. Copies
of these notices shall be sent to the Secretary and the appropriate Area
Director listed in paragraphs (c)(1) through (12) of this section.
(b)
If the identity or location of the Indian parents, Indian custodians or the
child's tribe cannot be determined, notice of the pendency of any involuntary
child custody proceeding involving an Indian child in a state court shall be
sent by certified mail with return receipt requested to the appropriate Area
Director listed in paragraphs (c)(1) through (12) of this section. In order to
establish tribal identity, it is necessary to provide as much information as is
known on the Indian child's direct lineal ancestors including, but not limited
to, the information delineated at paragraph (d)(1) through (4) of this
section.
Id.
Thus, under either of these subsections-that is whether the identity and
location of the child's tribe is known or unknown-the notice is to include the
information delineated in paragraph (d)(1)-(4). Id.
Section
23.11, paragraph (d)(1) through (4) requires that the notice include the name of
the Indian child, the child's birthdate and birthplace, the name of the Indian
tribe(s) in which the child is enrolled or 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/
*221
A copy of the petition, complaint, or other document by which the proceeding was
initiated is to be attached to the notice. Id.
? 23.11(d)(4). The notice is also required to include other criteria, all of
which are set forth in the statute. See
id.
? 23.11.
When
a copy of the notice is served on the Secretary of the Interior, his
designee
shall
make reasonable documented efforts to locate and notify the child's tribe....
The Secretary or his/
See
id.
? 23.11(f).
D.
The Present Facts
In
the present case, the Assistant District Attorney who prosecuted the termination
suit sent out four notices; two concerning R.R. were filed with the court on
September 19, 2007, and two naming both R.R. and V.R. as the children subject to
the termination suit were filed during trial on February 13, 2008. Two of the
four notices were labeled as directed to ?the Kiowa Indian Nation,? and two were
labeled as directed to ?The Secretary of the United States Department of the
Interior.? But all four notices were mailed only to Mr. David Anderson,
Assistant Secretary For Indian Affairs, and to Mother, Father, and the
court-appointed attorney for R.R. and V.R. None of the notices were mailed to
the Area Director, and none of the notices were mailed by certified mail or by
registered mail.
All
four of the notices disclosed that a parental termination suit had been filed
concerning R.R. (or R.R. and V.R.) and stated that Mother was allegedly an
Indian as defined in the ICWA and that R.R. (or R.R. and V.R.) were allegedly
Indian children under the ICWA. The notices directed to the Kiowa Nation stated
that ?[t]he child [R.R. (or R.R. and V.R.) ] who is the subject of this
proceeding is believed to be a member of or eligible for membership in a
federally recognized Indian tribe.? The notices directed to the Secretary of the
United States Department of Interior-but not the notices directed to the Kiowa
Nation-stated that ?Maternal Grandmother MINNIE MARIE AUNIQUE (aka AUNQUE,
AUNEQUE), alleges to be a member of the KIOWA
INDIAN NATION,
in OKLAHOMA.?
The
termination suit concerning R.R. and V.R. was called to trial on February 5,
2008. At the conclusion of testimony on February 5, the trial court indicated
that the trial would be resumed and completed on February 13, 2008. On February
13, 2008, at 9:30 a.m., the trial court resumed the termination trial. On
February 13, 2008 at 11:58 a.m., in addition to filing two of the four notices
mentioned above, the Assistant District Attorney filed a document that appears
to be a single-page form apparently filled out by the Kiowa Tribe of Oklahoma
Indian Child Welfare program.FN3
FN3.
We would have liked to attach a copy of this form as Appendix A to our opinion,
but to do so would have revealed R.R.'s, V.R.'s, and Mother's full
names.
The
form is addressed to ?Enrollment Department? and is from ?Indian Child Welfare
Program,? specifically S. Ahtone. The subject referenced in the memo-type form
is ?Minors certificate of degree of Indian blood (C.D.I.B.) & /
The
trial court did not apply the ICWA at trial.FN4
Mother filed a motion for new trial asserting that the ICWA applied and
testified at the hearing on the motion concerning her alleged Kiowa ancestry. At
the motion for new trial hearing, Mother testified, in pertinent part, as
follows:
FN4.
We have thoroughly reviewed the reporter's record from the trial. In addition,
we performed a word search on the ASCII disc filed by the court reporter as well
as a word search in the hard copy of the word index provided by the court
reporter. Nowhere in the record during trial does Mother testify that she is not
a member of the Kiowa Nation or that R.R. and V.R. are not members. Her
testimony on this issue at trial is minimal; she testifies that she is looking
into getting Indian Welfare benefits for the children but is having difficulty
obtaining information about her mother, who was a registered member of the Kiowa
Nation, because her mother died when she was two years old.
Q.
And is your mother Minnie Marie Anqe [sic]?
A.
Yes, sir.
Q.
And was she a member of the Kiowa Indian tribe?
A.
Yes, sir.
Q.
A registered member?
A.
Yes.
Q.
And do you know whether you're a registered member of the Kiowa Indian
tribe?
A.
I'm supposedly a member of it because I'm Indian, but I don't know nothing about
it. Yes, sir.
Q.
Do you know whether the children, whether they would be eligible
members?
A.
Yes, sir, because me and my family is, they should be at least a little bit.
Less than half. Probably about half.
....
Q.
[Mother], you said you're an eligible tribal member, is that
correct?
A.
Yes, ma'am.
On
cross-examination Mother testified:
Q.
Do you remember coming to this court during the trial and telling the judge and
everyone in this courtroom that your mother, who is the maternal grandmother to
your children, was a member of the Kiowa Indian tribe?
A.
Yes.
Q.
And do you remember when I asked you if you were a member of the Indian tribe?
Do you remember that question?
A.
Yes, ma'am.
Q.
And do you recall saying no, I am not a member? Do you recall saying
that?
A.
No, ma'am, I don't.
Q.
Do you recall saying that you knew that was something you needed to look into as
to the membership for the tribe?
A.
Yes, ma'am.
Q.
So you don't know if you're a member; you just know that you're an eligible
tribal member because your mother was a member?
*223
A. No. What I had supposedly known-
[THE
COURT]: I'm sorry. Would you say that again? I couldn't understand
you.
A.
What I supposedly found out, too, is that I have an aunt down here. She knows
I'm eligible for being an Indian, too, because that's my mom's sister, and I
just found out that she was here in Fort Worth.
Q.
Is it true that you're eligible to be a tribal member of the Kiowa
Nation?
A.
Yes, ma'am.
Q.
Is that true?
A.
Yes, ma'am.
....
Q.
Have you-[Mother], have you ever registered with the Kiowa Nation? Yes or
No.
A.
Yes, I have.
Q.
When did you do that?
A.
When I was born. They did that when I was born. I'm Indian.
Q.
Okay. But you told this court that you were not a tribal member.
A.
No, ma'am, I did not say that. You guys misunderstood that. I had told you I'm
eligible and I'm a member of it, because my mom-on my mom's side of the family
is nothing but Indian.
Q.
Okay.
A.
And I had told the judge that, too, and everybody that was in the courtroom that
day.
Q.
Okay. Your mother is a tribal member of the Kiowa Nation, is that
correct?
A.
Yes.
Q.
Is she alive or deceased?
A.
She's deceased.
Q.
Okay. And you think you're a member-today, you think you're a member because
someone registered you when you were a baby, is that right?
A.
Yes. Because I know, because they have to do that when you're Indian. When they
know that your family on one side of the family is an Indian that's already
registered, they have to register the kids.
The
trial court denied Mother's and Father's motions for new trial but found that
Mother's and Father's appeals of the termination judgment were not frivolous.
Mother and Father perfected this appeal.
E.
Application of the Law to the Present Facts
[7]
Mother, in her first issue, claims that the ICWA applies here. Father, in his
second issue, claims that the trial court erred by not granting a new trial in
light of the evidence that the ICWA may apply. TDFPS argues that the ICWA does
not apply; TDFPS's brief focuses on the issue of whether the trial court had
reason to believe that R.R. and V.R. were Indian children and argues that it did
not.
TDFPS
relies on five main cases for the proposition that the trial court here had no
reason to believe that the children were Indian children. We have reviewed each
of these cases and the facts in all of them are distinguishable from the present
facts. See
In
re R.M.W.,
188 S.W.3d 831, 832 (Tex.App.-Texarkana 2006, no pet.) (failing to mention,
recognize, or apply Guidelines); see
also In
re Johanson,
156 Mich.App. 608, 613-14, 402 N.W.2d 13, 16 (Ct.App.1986) (affirming direct
appeal of termination order when mother was not member of tribe prior to order
and no evidence existed in record that trial court had any reason to believe
Indian children were involved); In
re Guardianship of J.O.,
327 N.J.Super. 304, 316-17, 743 A.2d 341, 347 (Super.Ct.App.Div.) (holding
attorney's reference to possibility of Indian ancestry during status conference
insufficient to provide trial court with reason to believe *224
children were Indian children when parties were provided with ample opportunity
to pursue the issue but did not), cert.
denied,
165 N.J. 492, 758 A.2d 651 (2000); In
re A.L.,
2001 ND 59, ? 12, 623 N.W.2d 418, 422 (holding that when mother offered no
evidence to suggest the children were Indian children, but relied upon her
counsel's statements, trial court had no reason to believe children were Indian
children); In
re Arianna R.G.,
259 Wis.2d 563, ? 21, 657 N.W.2d 363, ? 21 (holding trial court did not have
reason to believe children were Indian children based solely on statements of
attorney).
We
decline to follow In
re R.M.W.
because neither the trial court nor the appellate court in R.M.W.
mentioned or gave proper weight to the Guidelines. 188 S.W.3d at 832. Here,
unlike in the four other cases relied upon by TDFPS, in which the only evidence
of the children's possible Indian status came from arguments of counsel, there
is evidence from the tribe that the children's maternal grandmother was an
enrolled member and an indication that the tribe needed more information to
determine whether R.R. and V.R. were members or were eligible for membership.
And here, unlike those four cases, the party seeking termination did give some
type of notice-although for the reasons discussed below it was defective. And
finally, here, according to the Guidelines, the trial court did have reason to
believe that R.R. and V.R. were Indian children.
According
to the Guidelines, the trial court here had reason to believe that R.R. and V.R.
are Indian children because a public or state-licensed agency involved in child
protection services or family support-TDFPS-discovered information-that the
children's maternal grandmother was alleged to be a member of the Kiowa Indian
Nation-that suggests that R.R. and V.R. are Indian children. BIA Guidelines for
State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. at 67,586. Once the
state court had reason to believe that R.R. and V.R. were Indian children, the
notice provisions of the ICWA were triggered. 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). The inquiry is to contain specific information, presumably to enable the
tribe to make a determination on whether the child is, in fact, a member of the
tribe or is eligible for membership in the tribe. See
25 C.F.R. ? 23.11(d)(1)-(4).
[8]
The notices sent in this case were deficient in several respects. They were not
sent certified mail, return receipt requested. See
25 U.S.C.A. ? 1912(a) (requiring notice under the ICWA be provided by certified
mail, return receipt requested). They did not contain R.R.'s and V.R.'s ages,
birthdates, place of birth, Mother's current and former addresses, Mother's
married and maiden name, or Mother's birthdate and place of birth. See
25 C.F.R. ? 23.11(d)(1)-(3) (setting forth requirements to be included in notice
and including these items). Additionally, the notices were not mailed to the
appropriate area director, ?Anadarko Area Director, Bureau of Indian Affairs,
P.O. Box 368, Anadarko, Oklahoma 73005.? Id.
(requiring mailing to Area Director). None of the notices included the telephone
number for Mother or Father. Id.
? 23.11(e)(4) (requiring phone numbers be provided).
Substantial
compliance with these notice provisions will not suffice. See,
e.g., In
re I.E.M.,
233 Mich.App. 438, 448-49, 592 N.W.2d 751, 757 (Ct.App.1999) (holding notice did
not comply with the ICWA when *225
not sent by certified mail, return receipt requested, and holding telephone
calls did not satisfy notice requirement). Instead, proper notice in compliance
with the ICWA and the statutory notice provisions is a prerequisite to a state
court's determination of whether to apply the ICWA. See,
e.g., In
re C.H.,
510 N.W.2d 119, 124 (S.D.1993) (holding notice provided to Choctaw Nation of
Oklahoma not in compliance with the ICWA because not mailed by certified mail,
return receipt requested as required by the Act). Compliance with all of the
ICWA notice provisions is required to promote and to maintain stability in the
placement of children; it is preferable to err on the side of giving notice and
examining thoroughly whether the child is an Indian. I.E.M.,
233 Mich.App. at 447, 592 N.W.2d at 757 (quoting In
re M.C.P.,
153 Vt. 275, 289, 571 A.2d 627, 634-35 (1989)); see
also In
re J.W.,
498 N.W.2d 417, 419 (Iowa Ct.App.1993) (recognizing that ?it would be
irresponsible for this court not to assure the [notice] provisions of the Act
were followed? based on ?a serious risk subsequent proceedings may be brought
for invalidation of the termination order under section 1914?), disapproved
on other grounds by In
re N.N.E.,
752 N.W.2d 1 (Iowa 2008).
Based
on the incomplete information provided in the notices here, the Kiowa Indian
Nation apparently was unable to verify whether R.R. and V.R. were members of the
tribe or eligible for membership in the tribe. Instead, the tribe sent back a
document indicating that the children's grandmother was a registered member of
the tribe by noting, ?Maternal grandmother Minnie Marie Anque ... K00416
1/
And
although the Secretary of the Interior or his designee was served, no copy of a
notice sent by the Secretary of the Interior to the Kiowa Nation was filed with
the trial court. See
25 C.F.R. ? 23.11(f) (requiring the Secretary to send a copy of any notice
provided to the tribe to the court). Additionally, the Secretary did not inform
the trial court here prior to the initiation of the proceedings that he or his
designee was unable to verify that R.R. and V.R. meet the criteria of Indian
children. See
id.
A
violation of the ICWA notice provisions may be cause for invalidation of the
termination proceedings at some later, distant 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 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). Consequently,
because the termination proceeding here will likely result ultimately in the
adoption of young R.R. and V.R., strict compliance with the notice provisions of
the ICWA and the regulations implementing it in the Code of Federal Regulations
is especially important, or ?the State could offer prospective adoptive
*226
parents no assurance this termination and a subsequent adoption would not be
invalidated.? See
J.W.,
498 N.W.2d at 419-22 (recognizing that notice provisions of the ICWA are to be
strictly construed and reversing order terminating parental rights because of
inadequate notice and remanding for new hearing after proper
notice).
[9]
Whether the trial court correctly applied the ICWA is a question of law.
See
W.D.H.,
43 S.W.3d at 33; see
also I.E.M.,
233 Mich.App. at 443, 592 N.W.2d at 755 (holding that ?[w]hether the probate
court failed to satisfy a notice obligation imposed by the ICWA involves a legal
question of statutory interpretation that we review de novo?). Here, because
under the Guidelines the trial court had reason to know that R.R. and V.R. were
Indian children, the notice provisions of the ICWA were triggered. See
BIA Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg.
at 67,586 (providing that ?[w]hen 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?); see
also
25 C.F.R. ? 23.11(a)-(f) (setting forth requisites of notices given under the
ICWA). Because the predicate of proper notice under the ICWA was not satisfied
here, the trial court could not resolve the issue of whether R.R. and V.R. were
Indian children without leaving its termination decree open to subsequent
challenge and invalidation by Mother, Father, the tribe, R.R., or V.R.
See,
e.g.,
25 U.S.C.A. ? 1914 (authorizing ?any 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 [to]
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?); Junious
M.,
144 Cal.App.3d at 791, 193 Cal.Rptr. at 42 (explaining that violation of the
ICWA's notice provisions may be cause for invalidation of the proceedings). Once
proper notice is given in compliance with the dictates of the ICWA, however, if
the tribe fails to respond or intervenes but fails to determine the child's
membership or eligibility for membership in the tribe, then the burden shifts to
the parties to show that the ICWA applies. See
I.E.M.,
233 Mich.App. at 449, 592 N.W.2d at 757 (recognizing that neither Father nor
tribe had responsibility to establish applicability of the ICWA absent proper
notice as dictated by the ICWA); In
re Baby Boy Doe,
123 Idaho 464, 470, 849 P.2d 925, 931 (explaining that, if, after proper notice,
the state court does not receive a conclusive determination from the tribe or
the BIA regarding a child's eligibility for tribal membership, the trial court
must make its own determination, and the burden of producing the necessary
evidence on this issue is on the party asserting the applicability of the ICWA),
cert.
denied,
510 U.S. 860, 114 S.Ct. 173, 126 L.Ed.2d 133 (1993).
Because,
in the absence of proper notice any determination of whether the children were
Indian children was premature, we sustain the portion of Mother's first issue
claiming that the trial court erred in its determination of whether the ICWA
applied. We likewise sustain the portion of Father's second issue complaining
that the trial court erred by not granting a new trial on the issue of whether
R.R. and V.R. were Indian children. We need not address the balance of Mother's
first issue or of Father's second issue. See
Tex.R.App. P. 47.1.
F.
Proper Remedy
[10]
When an appellate court finds a violation of the ICWA notice provisions,
*227
reversal is not necessarily warranted; instead, a court may remand the case to
the trial court so that proper notice may be provided. See
Tex.R.App. P. 44.4. The appellate court will conditionally affirm the
termination order in the event that, on remand, after proper notice the children
are determined to not be Indian children. See,
e.g., Junious
M.,
144 Cal.App.3d at 788, 193 Cal.Rptr. at 40 (indicating that the ICWA notice
error required a ?qualified reversal?); In
re R.E.K.F.,
698 N.W.2d 147, 150 (Iowa 2005) (and cases cited therein); C.H.,
510 N.W.2d at 124 (holding that, when there is uncertainty as to whether the
ICWA applies and there is a notice defect, proper remedy is to remand for proper
notice and determination of whether children are Indian children).
We
will follow these courts and utilize that procedure here. We will abate this
appeal and remand this case to the trial court. Proper notice that complies with
the statutory notice requisites shall be provided, and then the trial court
shall conduct a hearing to determine whether R.R. and V.R. are Indian children
under the ICWA. See
Tex.R.App. P. 44.4 (providing that appellate court shall not reverse or affirm
judgment if trial court can correct erroneous failure to act, and authorizing
appellate court to direct trial court to correct erroneous failure to act and to
then proceed as if erroneous failure to act had not occurred). After we receive
the supplemental records generated by the hearing in the trial court-as set
forth in our abatement order issued concurrently with this opinion-this appeal
will be reinstated. If, after proper notice and a hearing, the trial court has
determined that R.R. and V.R. 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 R.R. and V.R. 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).
III.
FACTUAL SUFFICIENCY TO SUPPORT TRIAL COURT'S FINDINGS THAT TERMINATION OF
FATHER'S PARENTAL RIGHTS IS IN R.R.'S AND V.R.'S BEST INTERESTS
In
his first issue, Father argues that the evidence is factually insufficient to
support the finding that termination of his parental rights is in the best
interest of the children.
A.
Facts Pertinent to Best Interest Analysis
1.
Father and Mother's Violent Relationship
Father
and Mother met at the Presbyterian Night Shelter and started living together
approximately one year later. They have been in an off-and-on relationship for
approximately four years. Mother testified that she has been physically
assaulted by Father five or six times since they have been together and that
they both have anger management issues. Mother said that Father hit her for the
first time when she was four or five months' pregnant with R.R.
2.
Police and CPS Involvement
a.
July 2006
Jeannie
Maxey, a CPS investigator, testified that she received a referral on July 14,
2006, two days after R.R.'s birth. The referral stated that there was domestic
violence, a history of drug use by the parents, and financial
instability.
Maxey
went to the family's residence to interview the parents and noted that the
residence was clean and appropriate. At first, Mother said that she and Father
had *228
only argued, but later Mother admitted that Father had hit her before R.R. was
born. Mother also admitted that she had been to a domestic violence shelter.
Mother told Maxey that she had used methamphetamine in the past but had been
clean for a few years FN5
and that Father had used crack and had been drug-free for one to two
years.
FN5.
Mother's drug tests were negative during July 2006.
When
Maxey spoke with Father, he said that he had a history of using crack and
marijuana but had been clean for six months. Father admitted that he had a
criminal history that included injury to a child.
Maxey
testified that she did not remove R.R. at that time. Maxey, however, ruled the
case as ?reason to believe for neglectful supervision? because the parents were
leaving R.R. with Father's mother, who had been diagnosed with schizophrenia and
was unstable. Maxey also opened a case for family-based social services and
recommended parenting classes and domestic violence counseling for Mother and
Father.
b.
August 2006
In
response to an allegation that Mother was spanking R.R., Maxey again visited
Mother and Father's residence on August 17, 2006. While Maxey was there, she
witnessed an argument as Mother, Father, and Father's mother disputed whether
Mother or Father had struck the first blow during a previous domestic violence
incident. Mother told Maxey that Father would be going to jail for a charge of
injury to a family member and that produced concern over the family's financial
future.FN6
Mother and Father both told Maxey that neither of them had spanked
R.R.FN7
FN6.
Maxey testified that while she had the case, Father did go to jail and that a
case for family-based safety services was opened.
FN7.
Maxey testified that there was no allegation that Father had ever spanked
R.R.
c.
September 2006
Maxey
received a second referral that Mother was spanking R.R. and that Mother was
still leaving him with Father's mother. Maxey testified that this referral was
?Ruled Out,? meaning that there was no evidence to suggest that Mother was
spanking R.R. Mother, moreover, said that she would not leave R.R. with Father's
mother again because she understood that Father's mother was not an appropriate
caretaker for R.R.
d.
November 2006
Officer
Billy Byers with the Fort Worth Police Department testified that he went to
Father and Mother's residence on November 8, 2006, in response to a domestic
disturbance call. When Officer Byers arrived, he noted that Father was
intoxicated. Officer Byers testified that the ?bedrooms weren't liveable? and
that one of the bedrooms ?had a bunch of dogs in it.? He further testified
that
the
baby was crying the entire time we were there. They had not once checked on that
child until I asked them to because the baby was crying. And the baby was laying
in that little cushion chair and they were just constantly arguing, yelling back
and forth, cursing at each other. And this was all three of them. They were all
screaming at each other, as well as the police that had responded out
there.
[Mother's]
action with taking the child outside the house with the cold condition
*229
and giving the baby to her obviously intoxicat[ed] husband and throwing, in
fact-or his words, throwing the baby at him at the store.
It's
very unsafe for that child to be in. I'm not-I don't recall what the baby's age
was, but was only a couple of months old. Obviously, shouldn't have been out in
that environment and should be looked after.
Bethany
Houser, who works for CPS, testified that she received a referral on November 8,
2006. Houser said that the police had been called to the home twice on November
7 for domestic violence and were concerned about the condition of the home, the
state of both parents, and R.R.'s safety and well-being in the
home.
When
Houser arrived, Father appeared to be intoxicated. Mother admitted that she had
used drugs a couple of weeks before the night in question. Houser also saw that
Father's mother lived with the family and knew that she had significant mental
health issues.
Houser
noted that there was debris, trash, clutter, and old bottles of spoiled formula
throughout the residence; that there were plates and pans with old food on them
on the floor; that there was dog feces primarily in the baby's room; and that
there were many holes in the walls, doors were off hinges, and broken framing
existed around doors. Even though R.R. did not have any marks on him and
revealed no signs of neglect other than a slight rash, Houser decided that it
was in the best interest to remove R.R. on that date because she knew that there
had been prior CPS cases involving Father and Mother.
After
R.R. was removed, CPS asked Father to take a drug test. In a drug test dated
November 15, 2006, Father tested positive for opiates.
e.
January 2007
Officer
Jesus Alaniz with the Fort Worth Police Department testified that a concerned
citizen reported on January 6, 2007, that a domestic disturbance was occurring
in front of a Fiesta grocery store. Mother said that she had pushed Father, and
Father said that Mother had hit him in the head. Mother received a citation for
the incident.
f.
May 2007FN8
FN8.
The record is unclear regarding this date. Initially, the attorney for TDFPS
questioned Officer Byers about November 12, 2007, but referred to it as ?the day
after you were out there in November.? However, several questions later, the
attorney for TDFPS questioned Officer Byers whether the environment observed in
?May of '07? was different from the one he had observed in ?November of '06.?
Therefore, we use the May 2007 date because it appears more appropriate in the
context.
Officer
Byers testified that he responded to another domestic violence call at the
residence in May 2007. On that occasion, Mother had gotten into a physical fight
with Father's mother, who hit Mother while she was pregnant with V.R. When
police arrived, Father's mother made threats of killing Mother and the police.
Officer Byers testified that Father's mother told them that she was
schizophrenic and was on several medications for psychiatric problems, which he
knew from previous dealings with her. Father's mother also told them that there
were people in the attic and people under the stairs that were coming to get
her. He felt that she had severe ?issues with her coherency? and that it was
?very unsafe for anybody to be around.? Officer Byers further testified that he
had been to the residence three or four times within the past year *230
and that it was an unstable environment for a child.
g.
June 2007
Officer
Michael Sones with the Fort Worth Police Department testified that he spoke with
Mother in June 2007 and that she said she had been in a domestic assault while
she was pregnant with V.R. Mother testified that Father had been drinking and
that he had dragged her out of the house, pushed her, and hit her four
times.
Officer
Sones placed Father in the patrol car, and Father kicked out the back window of
the patrol car. Father was charged with criminal mischief and assault bodily
injury to a family member. Officer Sones testified that Father's lack of
self-control is dangerous for a child and that the parties had a history of
domestic violence.
h.
October 2007
Due
to safety issues regarding children being in a home where domestic violence had
occurred and was ongoing, CPS removed V.R. at birth. CPS placed V.R. with the
same foster family that was keeping her brother R.R.
i.
December 2007
Officer
Dean Meza responded to a call at the Presbyterian Night Shelter on December 25,
2007. Father had reported that Mother, whom he described as his fianc?e, had
assaulted him. Mother went to jail for the assault. Officer Meza testified that,
according to Father, both Father and Mother were living at the
shelter.
3.
Father's Convictions and Bad Acts
Father
admitted that he had been convicted of and served time in the penitentiary for
the offense of bodily injury to a child that occurred on or about April 20,
1997. Father also admitted that he had been convicted of robbery causing bodily
injury and that prior to R.R.'s birth, he had been convicted of
DWI.
Father
testified that he was convicted of assault bodily injury to a family member
(Mother) that occurred on or about February 8, 2006, while Mother was pregnant
with R.R. Father explained that he had hit Mother in the face because he was mad
and intoxicated.
Father
discussed the facts underlying his June 2007 criminal mischief and assault
bodily injury to a family member (Mother) convictions. Father admitted that he
had been drinking that night and that Mother was pregnant with V.R. and added
that Mother had assaulted him several times.
Father
testified that on Christmas Day 2007, he was living with his uncle and that he
went to visit Mother at the Presbyterian Night Shelter. Father said that Mother
had assaulted him. Father admitted that he had pushed her back and stated that
she had hit him once in the head and several times on the side of the head.
Father called the police at that point and again two hours later when Mother
pushed him again.
4.
The Service Plan and Father's Compliance Therewith
a.
From CPS's Standpoint
April
Cumberbatch, who works with CPS, testified that she explained the service plans
to both Mother and Father. Cumberbatch said that their service plans included a
psychological evaluation, domestic violence counseling, a mental health
assessment, and anger management.
Although
Father signed his service plan, Cumberbatch testified that Father had not
completed any of the services on his plan as of July 2007. With regard to
Father's visitations, Cumberbatch testified that Father*231
was appropriate during the visits and seemed to have a good rapport with R.R.;
however, Father's visits were inconsistent because he was in jail for physically
assaulting Mother while she was pregnant.
Elizabeth
Bowlen, the ongoing CPS caseworker who took over the case after Cumberbatch took
a different job, testified that she had given Father bus passes to use to attend
his classes and visits but that he had given them to a friend and was therefore
not using them properly. Bowlen said that Father did not make an appointment for
his psychological examination until November or December 2007, at which time the
office did not have an opening until January; the office then stopped performing
psychological evaluations.
Bowlen
said that Father completed some services on his plan: parenting classes, anger
management classes, a substance abuse assessment, CATS classes, and individual
counseling. Bowlen testified that, despite Father's completion of these classes,
she has not seen Father demonstrate what he has learned, though she admitted
that there had been no domestic violence incidents in the one month since Father
had completed the anger management classes.FN9
Bowlen also testified that Mother and Father's counselor said that he did not
feel that they would be capable of parenting children at this time and that he
did not have positive things to say about Mother and Father's
progress.
FN9.
The record revealed that Father completed counseling in January 2008 and that
the termination trial took place during February.
Bowlen
testified that even if Father did not marry Mother, he could not provide either
of his children with a safe and stable home as of the time of the termination
trial. Bowlen explained that the case had been ongoing for fifteen months and
that Father had not been able to establish a safe environment for the children
to live in; the one house that he had paid rent on was deemed unsafe for the
children to live in, and there was some testimony that the family had lived in a
tent on Father's uncle's property at one point. Bowlen, moreover, expressed that
she was unsure how steady Father's jobs were because he and Mother did not have
enough money to pay for bus tickets. FN10
FN10.
Father worked as a plumber.
b.
From Father's Standpoint
Father
admitted that his current service plan was similar to one that he was given in
the summer or fall of 2006 and that initially he did not work any of the
services. Once Father began working his service plan, he gave a urinalysis and
completed parenting classes, twelve weeks of individual counseling, twelve weeks
of couples counseling, anger management classes, and the CATS program, which is
a drug and alcohol assessment.
Father
admitted that he has an anger problem and testified that Mother ?has a lot of
anger issues.? Father admitted that he was taking anger management classes when
he kicked out the back window of the patrol car. Father said that through his
classes, he has learned about self-control and about not ?overaggressing? when
someone offends him, and he is a better person today. Father said that he knows
that it is wrong to hit Mother and that assaults do not create a safe
environment for children.
Father
admitted that he had not completed his psychological evaluation. He said that he
had tried to get a psychological evaluation but that he had lost his job
FN11
*232
and did not have the money to get one before October 2007; then, when he tried
to get one, the facility had stopped doing psychological evaluations. He also
admitted that part of the reason he had not completed his psychological
evaluation was because he had ?been in and out of jail.?
FN11.
Father's testimony regarding his employment was contradictory. In addition to
the statement above, he testified that he had been continuously employed for the
last year and that sometimes he could not make his visits because of work;
however, he also said that he is working with a friend because he has a hard
time getting a job due to his criminal background.
Father
testified that his mother is an appropriate caregiver for his children: ?She's
fine. She thinks that she's mentally messed up, but she's not.? Father later
testified, ?[M]y mom's crazy.? Father admitted that his mother fights with
Mother and agreed that it would be dangerous if he, his mother, and Mother all
lived together.
With
regard to the condition of the house in 2006, Father testified that they had a
new dog and had left him in the house all day and all night. Father said that
the police officer had lied about the holes in the wall and the doors being off
the hinges because there were only two holes in a door.
Father
testified that he had lived in three places during the year before the trial and
that he did not have a stable environment at the time of trial; he lost his
house because his landlord had sold it. At the time of the trial, Father was
living with his uncle, whom he described as a ?drug head,? but Father did not
have a steady place to house the children because he had not asked his uncle if
they could live with him.
5.
Plans for the Future
a.
Father's Plans
Father's
testimony regarding his plans for the children was somewhat confusing. Father
testified that he and Mother are going to ?let their relationship go? because
they want to get their children back, but he later described Mother as his
?soon-to-be wife.? Father said that he did not want to relinquish his parental
rights; he said that they would have to be terminated. Father thereafter
testified that it would be in the best interest of the children to not be
returned to him, though he later contradicted himself by testifying that it
would be in the children's best interest to be placed with him because he would
take care of them.
Father
testified that Mother is a good mom to his children and that they both care for
the children. Father testified that the children could be placed with Mother and
that he wants Mother to have a chance to raise the children because he knows
that she loves them and that they love her. Father testified that he had saved
$800 and would financially support the children and Mother, who was living at
the shelter. Father said that Mother could have possession of the children
because he wants to see the children raised with one of their parents. Father
proposed that the children would be kept safe by Mother going to church and not
taking them to places that children should not go.
When
asked whether there were any relatives who could take the children, Father
testified that his children would be better off in foster care than with one of
his relatives because his family does not care.
b.
CPS's Recommendation and Plan
Cumberbatch
testified that it was in R.R.'s best interest to terminate Mother's and Father's
parental rights. Cumberbatch testified that CPS's plan was for R.R. to be
adopted by his foster parents.
*233
Bowlen also testified that it was in the children's best interest to terminate
Mother's and Father's parental rights and that the plan was for the children to
be adopted by their current foster family because the children need a safe,
stable home, as well as permanency and stability. Bowlen said that, in her
opinion, Father currently cannot provide a safe environment for the
children.
6.
Trial Court's Disposition
After
hearing the above evidence, the trial court found by clear and convincing
evidence that Mother and Father knowingly placed or knowingly allowed R.R. and
V.R. to remain in conditions or surroundings which endanger their physical or
emotional well-being, engaged in conduct or knowingly placed the children with
persons who engaged in conduct which endangered the physical or emotional
well-being of the children, and that termination of the parent-child
relationship was in the children's best interest. The trial court therefore
terminated the parent-child relationship between Mother and R.R. and V.R. and
between Father and R.R. and V.R.
B.
Burden of Proof and Standard of Review
[11][12][13]
A parent's rights to ?the companionship, care, custody, and management? of his
or her children are constitutional interests ?far more precious than any
property right.? Santosky
v. Kramer,
455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982); In
re M.S.,
115 S.W.3d 534, 547 (Tex.2003). ?While parental rights are of constitutional
magnitude, they are not absolute, and just as it is imperative for courts to
recognize the constitutional underpinnings of the parent-child relationship, it
is also essential that emotional and physical interests of the child not be
sacrificed merely to preserve that right.? In
re C.H.,
89 S.W.3d 17, 26 (Tex.2002). In a termination case, TDFPS seeks not just to
limit parental rights but to erase them permanently-to divest the parent and
child of all legal rights, privileges, duties, and powers normally existing
between them, except for the child's right to inherit. Tex. Fam.Code Ann. ?
161.206(b) (Vernon Supp.2008); Holick
v. Smith,
685 S.W.2d 18, 20 (Tex.1985). We strictly scrutinize termination proceedings and
strictly construe involuntary termination statutes in favor of the parent.
Holick,
685 S.W.2d at 20-21; In
re M.C.T.,
250 S.W.3d 161, 167 (Tex.App.-Fort Worth 2008, no pet.).
[14]
In proceedings to terminate the parent-child relationship brought under section
161.001 of the family code, the petitioner must establish one ground listed
under subdivision (1) of the statute and must also prove that termination is in
the best interest of the child. Tex. Fam.Code Ann. ? 161.001 (Vernon Supp.2008);
In
re J.L.,
163 S.W.3d 79, 84 (Tex.2005). Both elements must be established; termination may
not be based solely on the best interest of the child as determined by the trier
of fact. Tex.
Dep't of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex.1987).
Termination
decisions must be supported by clear and convincing evidence. Tex. Fam.Code Ann.
?? 161.001, 161.206(a). Evidence is clear and convincing if it ?will produce in
the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.? Id.
? 101.007 (Vernon 2002). Due process demands this heightened standard because
termination results in permanent, irrevocable changes for the parent and child.
In
re J.F.C.,
96 S.W.3d 256, 263 (Tex.2002); see
In
re J.A.J.,
243 S.W.3d 611, 616 (Tex.2007) (contrasting standards for termination and
modification).
*234
In reviewing the evidence for factual sufficiency, we must give due deference to
the factfinder's findings and not supplant the judgment with our own.
In
re H.R.M.,
209 S.W.3d 105, 108 (Tex.2006). We must determine whether, on the entire record,
a factfinder could reasonably form a firm conviction or belief that the
termination of the parent-child relationship would be in the best interest of
the child. C.H.,
89 S.W.3d at 28. If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not reasonably have formed a firm belief or
conviction in the truth of its finding, then the evidence is factually
insufficient. H.R.M.,
209 S.W.3d at 108.
[15][16]
There is a strong presumption that keeping a child with a parent is in the
child's best interest. In
re R.R.,
209 S.W.3d 112, 116 (Tex.2006). Prompt and permanent placement of the child in a
safe environment is also presumed to be in the child's best interest. Tex.
Fam.Code Ann. ? 263.307(a) (Vernon 2008). The following factors should be
considered in evaluating the parent's willingness and ability to provide the
child with a safe environment:
(1)
the child's age and physical and mental vulnerabilities;
(2)
the frequency and nature of out-of-home placements;
(3)
the magnitude, frequency, and circumstances of the harm to the
child;
(4)
whether the child has been the victim of repeated harm after the initial report
and intervention by the department or other agency;
(5)
whether the child is fearful of living in or returning to the child's
home;
(6)
the results of psychiatric, psychological, or developmental evaluations of the
child, the child's parents, other family members, or others who have access to
the child's home;
(7)
whether there is a history of abusive or assaultive conduct by the child's
family or others who have access to the child's home;
(8)
whether there is a history of substance abuse by the child's family or others
who have access to the child's home;
(9)
whether the perpetrator of the harm to the child is identified;
(10)
the willingness and ability of the child's family to seek out, accept, and
complete counseling services and to cooperate with and facilitate an appropriate
agency's close supervision;
(11)
the willingness and ability of the child's family to effect positive
environmental and personal changes within a reasonable period of
time;
(12)
whether the child's family demonstrates adequate parenting skills, including
providing the child and other children under the family's care
with:
(A)
minimally adequate health and nutritional care;
(B)
care, nurturance, and appropriate discipline consistent with the child's
physical and psychological development;
(C)
guidance and supervision consistent with the child's safety;
(D)
a safe physical home environment;
(E)
protection from repeated exposure to violence even though the violence may not
be directed at the child; and
(F)
an understanding of the child's needs and capabilities; and
*235
(13) whether an adequate social support system consisting of an extended family
and friends is available to the child.
Id.
? 263.307(b); R.R.,
209 S.W.3d at 116.
[17]
Other, nonexclusive factors that the trier of fact in a termination case may use
in determining the best interest of the child include (A) the desires of the
child, (B) the emotional and physical needs of the child now and in the future,
(C) the emotional and physical danger to the child now and in the future; (D)
the parental abilities of the individuals seeking custody, (E) the programs
available to assist these individuals to promote the best interest of the child,
(F) the plans for the child by these individuals or by the agency seeking
custody, (G) the stability of the home or proposed placement, (H) the acts or
omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one, and (I) any excuse for the acts or omissions
of the parent. Holley
v. Adams,
544 S.W.2d 367, 371-72 (Tex.1976).
[18]
These factors are not exhaustive; some listed factors may be inapplicable to
some cases; other factors not on the list may also be considered when
appropriate. C.H.,
89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be
sufficient in a particular case to support a finding that termination is in the
best interest of the child. Id.
On the other hand, the presence of scant evidence relevant to each factor will
not support such a finding. Id.
C.
Termination Was in the Children's Best Interest
[19]
Because Father claims that factually insufficient evidence exists to establish
that termination of his parental rights are in the children's best interest, we
begin our analysis with the factors listed in family code section
263.307(b).
With
regard to the first factor, the children involved were very young at the time of
the termination trial and were therefore physically and mentally
vulnerable.
Under
the second factor, the record revealed that CPS placed R.R. in a foster home and
were able to place V.R. in the same foster home when she was born; there is no
evidence in the record that the children were ever moved to another foster home
or returned to their parents after they were removed.
With
regard to the third, fourth, and ninth factors, Bowlen stated that prior to
CPS's intervention, R.R. was exposed to many domestic violence incidents
involving Father, Mother, and Father's mother.
Due
to the children's young ages, the record did not detail whether they would be
fearful of returning to their parents, but Bowlen testified that the foster
mother is the only mother figure V.R. has bonded with.
With
regard to the sixth factor, the record did not include psychiatric,
psychological, or developmental evaluations of the children. However, the foster
mother testified that R.R. is developmentally delayed and is receiving speech
therapy. The record also demonstrated that Father's mother, who lived with the
family, was unstable and suffered from mental health issues. Father did not
complete his psychological evaluation, so it is not part of the
record.
The
record was replete with evidence of the seventh and eighth factors. As set forth
in detail above, Father and Mother engaged in domestic violence on numerous
occasions, resulting in law enforcement and CPS involvement. Additionally, the
record revealed that Father had several convictions, including one for bodily
injury to a child; that he abused alcohol; and that he had previously used
drugs.
*236
With regard to the tenth and eleventh factors, Father did not initially comply
with his service plan. At the time of the termination trial, Father had
completed most of the items on his service plan, but Bowlen testified that he
had failed to change his behavior.
The
twelfth factor-whether the child's family demonstrates adequate parenting
skills-was not put to the test because R.R. and V.R. were removed when they were
little and because Father was in and out of jail during the time this case was
pending. But there was evidence that while Father and Mother were fighting, they
ignored R.R., who was crying the entire time the police were at the residence in
response to a domestic violence incident. The record also revealed that Mother
and Father's counselor told the CPS worker that Mother and Father were not
capable of parenting children ?at this time.? Additionally, Father did not have
a safe physical home environment established for the children as of the time of
the termination trial.
Father
testified regarding the final statutory factor when he said that his children
would be better off in foster care than with his family because his family does
not care.
Regarding
the first Holley
factor, the children did not testify at trial. Although Father testified that
both he and Mother care for the children, the evidence revealed that both V.R.
and R.R. are doing well in their foster home and seem bonded to the foster
parents.
Regarding
the second factor-the children's present and future physical and emotional
needs-the foster mother testified that R.R. is developmentally delayed and has
tubes in his ears due to recurrent ear infections that caused him moderate
hearing loss. Bowlen mentioned that R.R. does not talk much during the visits,
and the foster mother testified that R.R. is receiving speech therapy to address
this.
The
third and eighth factors-the emotional and physical danger to the child now and
in the future and the acts or omissions of the parent which may indicate that
the existing parent-child relationship is not a proper one-were at the heart of
this case. The record demonstrates that Father hit Mother during both of her
pregnancies and that Father and Mother's domestic violence disputes were ongoing
through Christmas 2007, which was approximately six weeks prior to the start of
the termination trial. As mentioned above, R.R. was present during numerous
domestic violence incidents prior to his removal by CPS. The record also
revealed that Father was in and out of jail during this case, leaving Mother-who
also had an anger management problem-to parent R.R. and that Mother often left
R.R. with Father's mother, whose mental health was often volatile. Moreover, the
record contained evidence of unsafe and unstable housing.
Regarding
the fourth factor-the parental abilities of the individuals seeking
custody-Mother testified that before R.R. was removed from their home, Father
fed, bathed, and diapered him and was involved in his life. Father testified
that he had never hit the children. Mother testified that Father is a great
father as long as he does not drink.
Concerning
the fifth factor, Father attempted to better himself by attending parenting
classes, twelve weeks of individual counseling, twelve weeks of couples
counseling, anger management classes, and the CATS program. However, he failed
to undergo a psychological evaluation.
Regarding
the parties' plans for the children-the sixth factor-Father's plans regarding
his parental rights were confusing, but overall, he appeared to want the
children*237
placed with Mother and said that he would financially support the children and
Mother. Father admitted that he did not have a stable home available to put the
children in as of the time of trial.
Mother
testified that Father would be a good father and would come and visit, but she
is not sure that it would be a good thing for him to visit because he likes to
drink and because she did not ?know how his reactions would be.? Mother said
that she has concerns that Father would be drinking and not taking care of the
children.
Both
Cumberbatch and Bowlen testified that CPS's plan was for the children to be
adopted by their current foster family.
Regarding
the stability of the proposed placement-the seventh factor-the evidence
demonstrated that terminating Father's parental rights would allow CPS to pursue
adoptive placements for the children, which would allow them to have the
stability lacking in their current situation.
Finally,
concerning the ninth factor-any excuse for the parents' acts or omissions-Father
admitted drinking alcohol prior to several of the domestic violence episodes.
Father said that he knows that it is wrong to hit Mother and that assaults do
not create a safe environment. He felt that he was a better man after completing
his parenting classes and counseling.
In
sum, the record demonstrates that CPS and the police had extensive involvement
with this family. Father's long history of engaging in domestic violence,
difficulty maintaining safe and stable housing, inconsistent employment history
with no guaranteed income, and inappropriate choices that put his children in
danger, such as allowing his mother to live with them despite her unstable
mental health and volatile relationship with Mother, all demonstrate that it was
in the children's best interest that Father's parental rights be terminated.
See
Tex. Fam.Code Ann. ? 161.001(2).
Giving
due consideration to evidence that the factfinder could have reasonably found to
be clear and convincing, and based on our review of the entire record, we hold
that a reasonable trier of fact could have formed a firm belief or conviction
that the termination of Father's parental rights would be in the children's best
interest. See
In
re M.B.,
No. 02-07-00280-CV, 2008 WL 2930530, at *14 (Tex.App.-Fort Worth July 31, 2008,
no pet.) (mem.op.) (holding that evidence was factually sufficient to support
jury's finding that termination of appellant's parental rights was in children's
best interest because TDFPS had received eight to ten referrals about appellant;
appellant had difficulty maintaining safe and stable housing; appellant had an
inconsistent employment history with no guaranteed income; and appellant made
inappropriate choices by living with a sex offender and engaging in domestic
violence); see
also In
re S.M.L.,
171 S.W.3d 472, 480 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (holding that
clear and convincing evidence existed that termination of father's parental
rights was in child's best interest where, among other factors, father was
incarcerated at time of termination hearing and had a pattern of criminal and
violent conduct). Accordingly, we hold that the evidence is factually sufficient
to support the trial court's best-interest finding. We overrule Father's first
issue.
IV.
CONCLUSION
Having
sustained a portion of Mother's first issue and a portion of Father's second
issue, we remand this case to the trial court so that notice may be sent in
compliance with the ICWA, as outlined above. If, after notice and a hearing, the
trial *238
court determines that R.R. and V.R. are not Indian children, then the
termination judgment of the trial court is affirmed. If, after notice and a
hearing, the trial court determines that R.R. and V.R. are Indian children, then
the termination judgment of the trial court is reversed, and the trial court
shall conduct a new trial applying the ICWA. See,
e.g., Junious
M.,
144 Cal.App.3d at 788, 193 Cal.Rptr. at 40; R.E.K.F.,
698 N.W.2d at 150 (citing numerous cases utilizing this procedure); I.E.M.,
233 Mich.App. at 450, 592 N.W.2d at 758; C.H.,
510 N.W.2d at 124. Having overruled the balance of Mother's first issue, the
balance of Father's second issue, and Father's first issue, we grant only the
relief outlined above.