in the Interest of R.R., Jr. and V.R., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-08-061-CV

IN THE INTEREST OF R.R., JR. AND
V.R., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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OPINION

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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 may conduct a hearing and make a

determination as to whether R.R. and V.R. are Indian children under the ICWA.

II. T HE INDIAN C HILD W ELFARE A CT

A. Purposes and Relevant Provisions of the Act

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 (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

2
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).

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

3
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).

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 (Ct. App. 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[;] enrollment is

not the exclusive test of membership.” Id. 1 “Enrollment is not always required

1
… 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).

4
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 (Dist. Ct. App. 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).

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”).2 These Guidelines were not intended

to have binding legislative effect. See id. But construction of a statute by the

2
… See Bureau of Indian Affairs Guidelines for State Courts; Indian Child
Custody Proceedings, available at http://www.nicwa.org/policy/regulations
/icwa/ICWA_guidelines.pdf (last visited March 18, 2009).

5
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).

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

6
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 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.

7
 ....

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

8
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 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 N OTICE

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

9
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.

10
 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/or

other identifying information.” Id. § 23.11(d)(1)–(4). Likewise, whether the

identity and location of the child’s tribe is known or unknown, notice is required

to be sent to the “appropriate Area Director.” Id. § 23.11(a), (b). For

proceedings in Texas (except for proceedings in the Texas counties of El Paso

and Hudspeth), the notice is to be sent to “Anadarko Area Director, Bureau of

Indian Affairs, P.O. Box 368, Anadarko, Oklahoma 73005.” Id. § 23.11(c)(4).

The notice is to include “the location, mailing address, and telephone number

of the court and all parties notified pursuant to this section.” Id. § 23.11(e)(4).

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.

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/her designee shall have 15
days, after receipt of the notice from the persons initiating the
proceedings, to notify the child’s tribe . . . . If within the 15-day
time period the Secretary or his/her designee is unable to verify that
the child meets the criteria of an Indian child as defined in 25
U.S.C. 1903, . . . the Secretary or his/her designee shall so inform
the court prior to initiation of the proceedings and state how much
more time, if any, will be needed to complete the search.

See id. § 23.11(f).

D. T HE P RESENT F ACTS

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.

12
 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

13
appears to be a single-page form apparently filled out by the Kiowa Tribe of

Oklahoma Indian Child Welfare program.3

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.) &/or

statement of eligibility for enrollment.” The form states that “[t]he Child

Welfare Program is requesting the following: Child(ren) and Family Tribal

Background Report.” The form specifically names R.R., V.R., and Mother. At

the bottom of the form, in the “Comments” section under the heading “Eligible

for Enrollment: ( )YES ( ) NO,” the enrollment officer has written, “[N]eed

more info, probably under blood quantum,” above his/her illegible signature. At

the bottom of the request, in the same handwriting as the children’s and

mother’s names filled in on the form, is “Maternal grandmother Minnie Marie

Anque.” The enrollment officer wrote under this comment, “K00416 ½

Kiowa,” apparently indicating that Mother’s mother, Minnie Marie Anque, was

one-half Kiowa.

3
… 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.

14
 The trial court did not apply the ICWA at trial.4 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:

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?

4
… 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.

15
 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?

A. No. What I had supposedly known - -

16
[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.

17
 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

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.

18
 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 children were Indian children when parties were provided with

ample opportunity to pursue the issue but did not), cert. denied, 165 N.J. 492

(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., 2003 WI App 11, ¶ 21, 259

Wis. 2d 563, ¶ 21, 657 N.W.2d 363, ¶ 21 (holding trial court did not have

19
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

20
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).

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).

21
 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 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).

22
 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 ½ Kiowa,” and requesting more information to determine

whether R.R. and V.R. were members or were eligible for membership. The

Assistant District Attorney conceded that the tribe had requested additional

information, stating, “I believe it states they need more information.“ Yet, the

record does not reflect that any additional information was provided to the

tribe, that Mother and Father were provided a copy of the tribe’s response, or

that the tribe was provided Mother’s or Father’s phone number to contact them

directly.

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.

23
 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 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).

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

24
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

25
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 (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

26
balance of Mother’s first issue or of Father’s second issue. See Tex. R. App.

P. 47.1.

F. P ROPER R EMEDY

When an appellate court finds a violation of the ICWA notice provisions,

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

27
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. F ACTUAL S UFFICIENCY TO S UPPORT T RIAL C OURT’S F INDINGS T HAT
T ERMINATION OF F ATHER’S P ARENTAL R IGHTS IS IN R.R’S AND V.R.’S B EST
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

28
 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 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

29
the past but had been clean for a few years 5 and that Father had used crack

and had been drug-free for one to two years.

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

5
… Mother’s drug tests were negative during July 2006.

30
the family’s financial future.6 Mother and Father both told Maxey that neither

of them had spanked R.R. 7

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

6
… Maxey testified that while she had the case, Father did go to jail and
that a case for family-based safety services was opened.
7
… Maxey testified that there was no allegation that Father had ever
spanked R.R.

31
 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 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

32
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.

33
 f. May 2007 8

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 and

that it was an unstable environment for a child.

8
… 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.

34
 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 fiancée, had assaulted him. Mother went to jail for the assault. Officer

35
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

36
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 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

37
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.9 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.

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,

9
… The record revealed that Father completed counseling in January 2008
and that the termination trial took place during February.

38
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.10

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

10
… Father worked as a plumber.

39
his job 11 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.”

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

11
… 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.

40
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

41
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.

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

42
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

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 (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

43
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.).

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).

44
 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.

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;

45
(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;

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 (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

(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.

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) he 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).

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 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

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.

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 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.

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

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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.

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 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.

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 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 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.

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 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).

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 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.

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 IV. C ONCLUSION

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 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.

SUE WALKER
JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: March 19, 2009

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