In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00032-CV
IN THE INTEREST OF A.M.G., A CHILD
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court No. 85846
Before Morriss, C.J., Burgess and Stevens, JJ.
ORDER
As a result of a petition filed by the Texas Department of Family and Protective Services
(the Department), the trial court terminated Mother’s parental rights to A.M.G. Mother appeals.
We abate this appeal to allow the trial court the opportunity to comply with the Indian Child
Welfare Act (ICWA).
Congress passed the ICWA 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 (1989). “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.” In re C.C., No. 12-17-00114-CV, 2017 WL 2822518, at *2 (Tex. App.—
Tyler June 30, 2017, no pet.) (mem. op.) (citing 25 U.S.C.A. § 1912(a)); In re R.R., Jr., 294 S.W.3d
213, 217 (Tex. App.—Fort Worth 2009, no pet.)). “An Indian child is defined by the ICWA as an
‘unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the biological child of a member of an Indian
tribe.’” Id. (quoting 25 U.S.C.A. § 1903(4)). “The ICWA, however, does not define what
constitutes being a ‘member’ or ‘being eligible for membership.’” Id. (citing 25 U.S.C.A.
§ 1903(4)). “Each tribe has its own criteria for determining tribe membership.” Id.
“The Bureau of Indian Affairs created guidelines for state courts to use in Indian child
custody proceedings to assist with the interpretation of the ICWA.” Id. (citing Bureau of Indian
Affairs Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines), 44 Fed.
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Reg. 67,584 (Nov. 26, 1979)). Under the BIA Guidelines, “[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. (quoting BIA Guidelines,
44 Fed. Reg. at 67,586). “Specific instructions are provided in the [BIA] Guidelines for the
determination of the status of an alleged Indian child.” Id. (citing In re J.J.C., 302 S.W.3d 896,
900 (Tex. App.—Waco 2009, no pet.)). “The burden is placed on the trial court to seek verification
of the child’s status through either the Bureau of Indian Affairs or the child’s tribe.” Id. (citing
BIA Guidelines, 44 Fed. Reg. at 67,586 (stating that “the court shall seek verification of the child’s
status”)). “[C]ircumstances under which a state court has reason to believe a child involved in a
child custody proceeding is an Indian include [when] . . . (i) [a]ny party to the case . . . informs the
court that the child is an Indian child . . . [and] (ii) [a]ny public or state-licensed agency involved
in child protection services or family support has discovered information which suggests that the
child is an Indian child.” Id. (quoting BIA Guidelines, 44 Fed. Reg. at 67,586).
“Under the ICWA, an Indian tribe is entitled to notice of a custody proceeding involving
an Indian child.” Id. (citing 25 U.S.C.A. § 1912(a)). “It is the duty of the trial court and the
Department to send notice in any involuntary proceeding ‘where the court knows or has reason to
know that an Indian child is involved.’” Id. (quoting 25 C.F.R. § 23.11). “Section 23.11 also
requires that the notice be sent to the ‘appropriate Regional Director’ and the Secretary of the
Interior.” 1 Id. (quoting 25 C.F.R. § 23.11(a), (b), (c)). On receipt of the notice, the Secretary of
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The appropriate Regional Director is determined by application of the BIA Guidelines and the ICWA. Section 23.11
of the Code of Federal Regulations states:
Notice must include the requisite information identified in § 23.111, consistent with the
confidentiality requirement in § 23.111(d)(6)(ix). Copies of these notices must be sent to the
appropriate Regional Director listed in paragraphs (b)(1) through (12) of this section by registered
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the Interior, or his designee, is required “to make reasonable documented efforts to locate and
notify the tribe and the child’s Indian parent or custodians within fifteen days or to notify the trial
court how much time is needed to complete the search for the child’s tribe.” Id. (citing 25 C.F.R.
§ 23.11(c)).
“A violation of the ICWA notice provisions may be cause for invalidation of the
termination proceedings at some later, distant point in time.” Id. (citing 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”)).
Here, the Department’s petition stated that “[a]n inquiry regarding the child or family’s
possible Indian ancestry is not complete.” In the “Indian Child & Family Questionnaire,” included
in the clerk’s record, Mother reported possible Native American heritage. The Department further
acknowledged, in three permanency reports included in the clerk’s record, that Mother reported
that the child had Indian heritage. Both Mother’s report and the Department’s knowledge of her
report that the children may have Indian ancestry were “sufficient to trigger the ICWA’s
requirements for notification and determination of Indian status.” Id. at *3. Therefore, the trial
court was obligated to notify and “seek notification of the child’s status from either the Bureau of
or certified mail with return receipt requested or by personal delivery and must include the
information required by § 23.111.
25 C.F.R. § 23.11. Notices must comply with Section 23.111, including the requirement to list “[a]ll names known
(including maiden, married, and former names or aliases) of the parents.” 25 C.F.R. § 23.111(d).
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Indian Affairs or the child’s tribe.” BIA Guidelines, 44 Fed. Reg. at 67,586. These notice
provisions are mandatory. Id.
Thus, because the inquiry required by the ICWA is necessary here, we abate this appeal
with the following instructions:
(1) the trial court shall provide, no later than July 8, 2019, proper notices that comply
with the ICWA’s statutory notice requirements discussed herein;
(2) the trial court shall thereafter conduct a hearing, no later than August 7, 2019, to
determine whether A.M.G. is an Indian child under the ICWA;
(3) the trial court shall cause a record of the proceedings to be prepared and shall make
appropriate findings as to whether A.M.G. is an Indian child;
(4) the reporter’s record from the hearing shall be filed with this Court no later than
August 19, 2019; and
(5) a supplemental clerk’s record (including any orders and findings resulting from the
ICWA hearing) shall be filed with this Court no later than August 19, 2019.
See TEX. R. APP. P. 44.4. Due to the accelerated nature of parental-rights termination proceedings,
the trial court shall conduct these abatement proceedings in an expedited fashion. The appeal will
be reinstated in this Court upon the filing of the supplemental clerk’s record. Until such time, the
July 15, 2019, submission date is hereby withdrawn.
IT IS SO ORDERED.
BY THE COURT
DATE: June 26, 2019
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