      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00698-CV




                                          S. P., Appellant

                                                  v.

             The Texas Department of Family and Protective Services, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
        NO. 288,227-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING



                             MEMORANDUM OPINION


               In this accelerated appeal, appellant S.P.1 challenges the trial court’s judgment

terminating her parental rights. She claims that applicable standards for termination set forth in the

Indian Child Welfare Act were not satisfied and require reversal of the trial court’s judgment. See

25 U.S.C.A. §§ 1901–1963 (“ICWA” or “the Act”). We agree and will reverse the portion of the

trial court’s judgment terminating S.P.’s parental rights. In the interests of justice, we will remand

that portion of the cause to the trial court for further proceedings consistent with this opinion. We

will otherwise affirm the judgment of the trial court.




       1
          We refer to the mother and her child by their initials only. See Tex. Fam. Code
§ 109.002(d); Tex. R. App. P. 9.8(b).
                                         BACKGROUND

               On October 17, 2016, the Texas Department of Family and Protective Services (“the

Department”) filed a petition for possession and temporary managing conservatorship of S.P.’s child,

R.C.P., alleging neglectful supervision endangering the physical health or safety of R.C.P. The

petition also sought to terminate the parental rights of S.P. and of the alleged father. That same day,

the trial court entered emergency temporary orders appointing the Department temporary managing

conservator of R.C.P.

               On December 27, 2016, the Department notified S.P. that it believed that R.C.P. was

a member of a federally recognized Indian tribe, the Muscogee (Creek) Nation, which entitled S.P.

to rights under the ICWA. The Department also provided notice to the tribe, who declined to

intervene. Following a de novo hearing before the trial court on August 2, 2017, the trial court

signed a final judgment terminating S.P.’s parental rights.2 S.P. appealed.


                                           DISCUSSION

               In three issues, S.P. alleges violations of the ICWA. In her third issue, she contends

that the evidence is legally insufficient to support the judgment under the Act. In response to that

issue, the Department concedes that the evidence is legally insufficient and agrees that reversal is

required. After reviewing the record and applicable authority, we conclude that the evidence is

legally insufficient under the Act. Because S.P. is entitled to relief on her third issue, we do not

reach her first and second issues.

       2
          The judgment also terminated the parental rights of the alleged father, E.G. Because E.G.
did not appeal from the judgment, he is not a party to this appeal, and we do not address the portion
of the judgment terminating his parental rights.

                                                  2
        A.      Indian Child Welfare Act

                The ICWA was enacted in 1978 in response to rising concern “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 . . . .” Mississippi

Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). The Act contains congressional

findings that “an alarmingly high percentage of Indian families” were being broken up by

unwarranted removal of their children by non-tribal public and private agencies and placed in

non-Indian homes and institutions. 25 U.S.C.A. § 1901(4). Statistical evidence showed that 25 to

35 percent of all Indian children had been separated from their families and placed in adoptive

families, foster care, or institutions. See Mississippi Band of Choctaw Indians, 490 U.S. at 32. The

adoption rate of Indian children was eight times greater than that of non-Indian children, and

approximately 90 percent of the placements were in non-Indian homes. See id. at 33; see also

Yavapai–Apache Tribe v. Mejia, 906 S.W.2d 152, 161–62 (Tex. App.—Houston [14th Dist.] 1995,

orig. proceeding) (detailing historical underpinnings of the Act). Consequently, the Act articulates

a federal policy that elevates preservation of Indian culture and communities:


        The Congress hereby declares that it is the policy of this Nation to protect the best
        interests of Indian children and to promote the stability and security of Indian tribes
        and families by the establishment of minimum Federal standards for the removal of
        Indian children from their families and the placement of such children in foster or
        adoptive homes which will reflect the unique values of Indian culture . . . .


25 U.S.C.A. § 1902; see also Mississippi Band of Choctaw Indians, 490 U.S. at 36.




                                                   3
                Congress sought to effectuate that policy by establishing procedural and substantive

standards in all state child-custody proceedings involving an Indian child. See 25 U.S.C.A.

§ 1912(a); Mississippi Band of Choctaw Indians, 490 U.S. at 35. An “Indian child” includes an

unmarried person under the age of 18 who is a member of an Indian tribe. 25 U.S.C.A. § 1903(4).

A “child custody proceeding” includes an action resulting in the termination of the parent-child

relationship. Id. § 1903(1)(ii). One of the Act’s protective features requires that the Department

satisfy a heightened evidentiary standard before the trial court may terminate the relationship

between an Indian child and the child’s parent:


       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 qualified expert witnesses, 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.


Id. § 1912(f). In a Texas termination proceeding, therefore, the Department must prove grounds for

termination under the Texas Family Code by clear and convincing evidence, see Tex. Fam. Code

§§ 161.001(b), 161.206(a), and grounds for termination under the ICWA beyond a reasonable doubt,

see 25 U.S.C.A. § 1912(f). See In re K.S., 448 S.W.3d 521, 536–39 (Tex. App.—Tyler 2014,

pet. denied).




                                                  4
        B.      The evidence is legally insufficient under the applicable ICWA standard

                In the present case, it is undisputed that the Act applies.3 Accordingly, the trial

court’s judgment states, in relevant part, that “[t]he Court finds by clear and convincing evidence and

beyond a reasonable doubt that . . . the continued custody of the child by the parent is likely to result

in the serious emotional or physical damage to the child.” See 25 U.S.C.A. § 1912(f). S.P. contends

that the record contains insufficient evidence to support the trial court’s finding under the applicable

federal standard.4


                1.      Standard of review

                S.P. does not specify whether she challenges the legal or factual sufficiency of the

evidence or both. Because she cites only the legal-sufficiency standard of review, we will construe

her issue as a challenge to the legal sufficiency of the evidence only.5 See Rischer v. State,

85 S.W.3d 839, 842–43 (Tex. App.—Waco 2002, no pet.) (reviewing courts look to argument and


        3
          The record supports the trial court’s finding that R.C.P. is a member of the Muscogee
(Creek) Nation. Although the tribe did not intervene, a tribe’s failure to intervene in termination
proceedings does not affect the applicability of the ICWA. See Doty-Jabbaar v. Dallas Cty. Child
Protective Servs., 19 S.W.3d 870, 874 (Tex. App.—Dallas 2000, pet. denied) (construing
25 U.S.C.A. § 1912(a)).
        4
         S.P. does not challenge the sufficiency of the evidence to support termination of her rights
under state law.
        5
          Furthermore, it is unclear whether factual sufficiency review is available in civil cases in
which the standard of proof is beyond a reasonable doubt. See In re K.S., 448 S.W.3d 521, 539 (Tex.
App.—Tyler 2014, pet. denied) (“Texas no longer applies a factual sufficiency review to challenges
of evidence requiring proof beyond a reasonable doubt.”) (following Brooks v. State, 323 S.W.3d 893,
902 (Tex. Crim. App. 2010)); but see In re Commitment of Day, 342 S.W.3d 193, 213 (Tex.
App.—Beaumont 2011, pet. denied) (“This court has a constitutional duty to review factual
sufficiency when the issue is raised on appeal.”) (declining to follow Brooks, 323 S.W.3d at 895).

                                                   5
authorities presented in party’s brief to determine whether an issue challenges legal or factual

sufficiency of evidence or both).

               In reviewing the legal sufficiency of the evidence in a termination case in which the

burden of proof is clear and convincing evidence, a reviewing court applies the standards of review

set forth in In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). But because the applicable burden of

proof under the ICWA is beyond a reasonable doubt, we must apply a heightened standard of review.

See 25 U.S.C.A. § 1912(f); see also City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005)

(“[T]he standard for legal sufficiency works in tandem with the standard of review—whenever the

standard of proof at trial is elevated, the standard of appellate review must likewise be elevated.”)

(internal quotation marks omitted). Therefore, when we review the legal sufficiency of the evidence

pursuant to section 1912(f) of the ICWA, we must assess all of the evidence in the light most

favorable to the verdict to determine whether a rational factfinder could have found that the

evidentiary requirements of that provision were satisfied beyond a reasonable doubt.             See

25 U.S.C.A. § 1912(f); see also In re V.L.R., 507 S.W.3d 788, 795 (Tex. App.—El Paso 2015, no

pet.) (applying legal-sufficiency standard of review set forth in Jackson v. Virginia, 443 U.S. 307,

319 (1979)); In re K.S., 448 S.W.3d at 539 (same). Under that standard, the factfinder may fairly

resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. See

Jackson, 443 U.S. at 319.




                                                 6
               2.      The trial court’s judgment was not supported by expert testimony as
                       required under the ICWA

               S.P. contends that the evidence is legally insufficient to support the trial court’s

finding that “the continued custody of the child by the parent is likely to result in the serious

emotional or physical damage to the child” because the Department failed to produce testimony of

a “qualified expert witness” as required under the Act. See 25 U.S.C.A. § 1912(f); see also In re

K.S., 448 S.W.3d at 539 (termination finding under ICWA “must by supported by evidence that

includes testimony from a qualified expert witness”). The Department concedes error on this point

and agrees that reversal is required.

               Only three witnesses testified at the termination hearing: S.P., R.C.P.’s foster parent,

and Glendalys Mojica Gonzalez, the caseworker assigned to the case. The Department did not

designate or proffer any of the witnesses as an expert, and the trial court did not make any rulings

or findings regarding expert witnesses.

               The Act does not define “qualified expert witness,” and courts across the country have

grappled with its meaning since the Act’s passage. See, e.g., In re D.S.P., 480 N.W.2d 234, 239–40

(1992) (collecting cases). However, the Bureau of Indian Affairs has created guidelines for state

courts’ use in Indian child-custody proceedings. See Bureau of Indian Affairs Guidelines for

State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146-02,10147

(Feb. 25, 2015) (updating original guidelines, 44 Fed. Reg. 67584-01, 67593 (Nov. 26, 1979)).

Although the guidelines are not binding, Texas courts have consulted them when interpreting the

ICWA. See, e.g., In re V.L.R., 507 S.W.3d at 796; In re K.S., 448 S.W.3d at 529 (using earlier

version of guidelines); In re J.J.C., 302 S.W.3d 896, 900 (Tex. App.—Waco 2009, no pet.) (same);

                                                  7
see also Yavapai–Apache Tribe, 906 S.W.2d at 163–64 (“[T]he interpretation in the Guidelines

should be given important significance.”).

               The guidelines address the applicable standards of evidence.6 In relevant part, they

describe “[w]ho may serve as a qualified expert witness”:


       (a) A qualified expert witness should have specific knowledge of the Indian tribe’s
       culture and customs.

       (b) Persons with the following characteristics, in descending order, are presumed to
       meet the requirements for a qualified expert witness:

           (1) A member of the Indian child’s tribe who is recognized by the tribal
           community as knowledgeable in tribal customs as they pertain to family
           organization and childrearing practices.

           (2) A member of another tribe who is recognized to be a qualified expert
           witness by the Indian child’s tribe based on their knowledge of the delivery
           of child and family services to Indians and the Indian child’s tribe.

           (3) A layperson who is recognized by the Indian child’s tribe as having
           substantial experience in the delivery of child and family services to Indians,
           and knowledge of prevailing social and cultural standards and childrearing
           practices within the Indian child’s tribe.

           (4) A professional person having substantial education and experience in the
           area of his or her specialty who can demonstrate knowledge of the prevailing
           social and cultural standards and childrearing practices within the Indian
           child’s tribe.


80 Fed. Reg. at 10157.

       6
           Commentary to the original version of the guidelines explained the purpose of the expert-
testimony requirement, stating that “knowledge of tribal culture and childrearing practices will
frequently be very valuable to the court” in placing specific behavior patterns “in the context of the
total culture to determine whether they are likely to cause serious emotional harm.” Bureau of Indian
Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584-01,
67593 (Nov. 26, 1979).

                                                  8
               We conclude that the record in the present case does not contain testimony of a

“qualified expert witness” as required under the Act. See id.; see also 25 U.S.C.A. § 1912(f). The

Department did not designate any experts prior to trial, did not proffer any expert-witness testimony

at trial, and concedes on appeal that it produced no such testimony. Although the Department

introduced the testimony of Gonzales, the caseworker assigned to the case, who testified that she

believed termination was in R.C.P.’s best interest, the record does not show (and the Department

does not contend) that Gonzales possessed the requisite expertise to satisfy the federal requirement.

The record contains no evidence that she is a member of the Muscogee tribe or another tribe. See

80 Fed. Reg. at 10157. It contains no evidence that she is recognized by the Muscogee tribe as

having substantial experience in the delivery of child and family services to Indians or knowledge

of the prevailing social and cultural standards and childrearing practices within the tribe. See id.

And it contains no evidence that she has substantial education and experience in her specialty or that

she demonstrated knowledge of the prevailing social and cultural standards and childrearing

practices within the Muscogee tribe. See id. In the absence of any evidence regarding her training,

experience, or expertise, we cannot conclude that her testimony satisfied the statutory requirement.

See In re V.L.R., 507 S.W.3d at 796–97 (holding that case worker was not an expert under the Act

where there was no evidence of her credentials or her familiarity with Indian cultural standards

or practices); Doty-Jabbaar v. Dallas Cty. Child Protective Servs., 19 S.W.3d 870, 877 (Tex.

App.—Dallas 2000, pet. denied) (same); see also H.R. Rep. No. 95–1386, at 22 (1978) (“The

phrase ‘qualified expert witness’ is meant to apply to expertise beyond the normal social

worker qualifications.”)



                                                  9
               The failure of the Department to produce the kind of competent evidence expressly

required under the Act to support termination constitutes a failure of proof. See City of Keller,

168 S.W.3d at 812 (“[W]hen expert testimony is required, lay evidence . . . is legally insufficient.”);

see also Martin v. State, 222 S.W.3d 532, 537 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)

(reversing involuntary-commitment order as unsupported by legally sufficient evidence where State

failed to introduce expert testimony as required by involuntary-commitment statute). Therefore,

even viewing all of the evidence in the light most favorable to the verdict, because the record does

not contain the statutorily required qualified-expert testimony, we conclude that the evidence is

legally insufficient to meet the standard of proof under section 1912(f). See Jackson, 443 U.S. at

319; see also In re V.L.R., 507 S.W.3d at 796–97 (reversing judgment terminating parental rights

because not supported by testimony of qualified expert witness as required under ICWA);

Doty-Jabbaar, 19 S.W.3d at 877 (same). We sustain S.P.’s third issue. Because we reverse the

portion of the judgment terminating S.P.’s parental rights on the basis of legally insufficient

evidence, we do not reach S.P.’s remaining issues, which also challenge that portion of the judgment

on alternative grounds. See Tex. R. App. P. 47.1 (opinion should be as brief as practicable and

address every issue necessary to final disposition of appeal).


       C.      Disposition

               The Department requests that we remand this cause to the trial court for further

proceedings. S.P. has requested that we reverse the trial court’s judgment without remand for further

proceedings and grant her whatever relief we deem appropriate under applicable law.




                                                  10
                When reversing a trial court’s judgment, an appellate court must render the judgment

that the trial court should have rendered, except when (1) remand is necessary for further proceedings

or (2) the interests of justice require a remand for another trial. Tex. R. App. P. 43.3. This Court

has previously remanded after reversing a judgment terminating parental rights as unsupported by

legally sufficient evidence, observing that it is “in the child’s best interest for the trial court to fully

develop the evidence and render a judgment following consideration of the evidence.” Williams

v. Williams, 150 S.W.3d 436, 452 (Tex. App.—Austin 2004, pet. denied); see also Doty-Jabbaar,

19 S.W.3d at 877–78 (remanding after reversing termination order that was unsupported by legally

sufficient evidence under ICWA). Our sister court has also observed that “in cases involving

involuntary termination of parental rights . . . appellate courts are ‘not in a position to determine

whether simply to deny the petition for termination or render some other order in the best interest

of the child.’” Van Heerden v. Van Heerden, 321 S.W.3d 869, 874–75 (Tex. App.—Houston [14th

Dist.] 2010, no pet.) (quoting In re C.M.C., 273 S.W.3d 862, 882 n.13 (Tex. App.—Houston [14th

Dist.] 2008, no pet.). The court explained that “circumstances surrounding the parent-child

relationship may have changed since the trial court’s original judgment, which would require a

fact-finder to assess the new situation.” Id. We thus conclude that the interests of justice require that

we remand the cause to the trial court for proceedings consistent with this opinion.


                                            CONCLUSION

                We reverse the portion of the trial court’s judgment terminating the parental rights

of S.P. and remand that portion of the cause for further proceedings consistent with this opinion. See

Tex. R. App. P. 43.2(d). If a new trial is held, we instruct the trial court to commence the trial no

                                                    11
later than 180 days after the mandate is issued by this Court. See id. 28.4(c). We otherwise affirm

the judgment of the trial court.7



                                               _________________________________________
                                               Cindy Olson Bourland, Justice

Before Justices Puryear, Field, and Bourland

Affirmed in Part; Reversed and Remanded in Part

Filed: March 9, 2018




       7
         E.G. did not appeal from the trial court’s judgment, and S.P. challenged only the portion
of the judgment relating to termination of her parental rights. We therefore do not disturb the
remaining portions of the judgment. See Doty-Jabbaar, 19 S.W.3d at 878 n.3.

                                                 12
