                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00128-CV

         IN THE INTEREST OF G.C., M.C., AND H.C., CHILDREN



                          From the County Court at Law
                              Bosque County, Texas
                             Trial Court No. CV14084


                           MEMORANDUM OPINION


       K.B.L. appeals from a judgment that terminated his parental rights to his

children, M.C. and H.C. In his sole issue, K.B.L. complains that the trial court used an

incorrect burden of proof in its determination that his rights should be terminated

pursuant to section 161.001 of the Family Code because the children are Indian children.

TEX. FAM. CODE ANN. § 161.001 (West 2014). The trial court’s judgment recites that the

trial court found by clear and convincing evidence that termination of his parental

rights was in the children’s best interest and that K.B.L. had committed the predicate

acts set forth in section 161.001(1) (D), (E), (F), (P), and (Q). See TEX. FAM. CODE ANN. §

161.001(1) (D), (E), (F), (P), (Q) and (2). K.B.L. argues that section 1912(f) of the Indian
Child Welfare Act requires that the burden of proof for the trial court’s findings

regarding the predicate acts pursuant to Family Code section 161.001(1) and the best

interest determination pursuant to section 161.001(2) is beyond a reasonable doubt

rather than the clear and convincing standard used in traditional termination

proceedings.1 See 25 U.S.C.A. § 1912(f); TEX. FAM. CODE ANN. § 161.001. Because we

find no reversible error, we affirm the judgment of the trial court.

        The Indian Child Welfare Act was passed by Congress in response to the "rising

concern in the mid-1970's over the consequences to Indian children, Indian families, and

Indian tribes of abusive child welfare practices that resulted in the separation of large

numbers of Indian children from their families and tribes through adoption or foster

care placement, usually in non-Indian homes." Miss. Band of Choctaw Indians v. Holyfield,

490 U.S. 30, 32, 109 S. Ct. 1597, 1599-1600, 104 L. Ed. 2d 29 (1989); see also In the Interest of

J.J.C., 302 S.W.3d 896, 899 (Tex. App.—Waco 2009, no pet.). The ICWA applies to all

state child custody proceedings involving an Indian child when the court knows or has

reason to know an Indian child is involved. 25 U.S.C.A. § 1912(a); J.J.C., 302 S.W.3d at

900.

        Section 1912(f) of the ICWA states:

        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

1There is no dispute that the children are “Indian children” pursuant to the ICWA nor is there any
dispute regarding notice to the Indian tribe.

In the Interest of G.C., M.C., and H.C.                                                    Page 2
        the continued custody of the child by the parent or Indian custodian is
        likely to result in serious emotional or physical damage to the child.

25 U.S.C.A. 1912(f). K.B.L. argues that this section requires that the predicate findings

set forth in section 161.001(1) of the family code as well as the best interest finding set

forth in section 161.001(2) must also be found beyond a reasonable doubt.              The

Department argues that the findings required by the ICWA are separate and distinct

from section 161.001, and the two statutes are not in conflict with each other.

        There is little authority within the State of Texas interpreting the ICWA and its

potential preemption of the Texas Family Code as it relates to the proper burden of

proof to be used in termination proceedings. The Tyler Court of Appeals has recently

addressed the issue of whether the ICWA preempts the Family Code or whether the

two can be harmonized to give effect to each. See In re K.S., 448 S.W.3d 521, 533 (Tex.

App.—Tyler 2014, pet. denied). After a thorough and well-reasoned discussion of

preemption and how other courts throughout the United States have interpreted the

interplay between section 1912(f) of the ICWA and each state’s termination laws, the

Tyler court determined that section 1912(f) of the ICWA does not preempt section

161.001 of the Family Code and that it is not error for a court to consider both in

determining whether the parent-child relationship should be terminated.           K.S. 448




In the Interest of G.C., M.C., and H.C.                                              Page 3
S.W.3d at 530-533.2 In fact, by the concurrent application of the ICWA and the family

code to proceedings involving Indian children, additional protection is provided to

parents of Indian children because it requires the party seeking termination to prove

state and federal grounds before the parent-child relationship may be terminated. See

25 U.S.C.A. § 1921; K.S., 448 S.W.3d at 532. The Tyler court further determined that it is

appropriate to use the clear and convincing evidence standard in analyzing the

sufficiency of the evidence relating to section 161.001 of the Family Code. K.S. 448

S.W.3d at 536.

         We agree with the Tyler court of appeals’s analysis and hold that, under the facts

of this proceeding, section 1912(f) is not in conflict with section 161.001 of the family

code. By doing so, we further hold that section 1912(f)’s requirement of a finding

beyond a reasonable doubt is limited to the finding expressly stated in section 1912(f)

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.3” We overrule K.B.L.’s sole

issue.



2 But see In re W.D.H., 43 S.W.3d 30 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) in which the
Houston court of appeals found that section 1912(f) of the ICWA and section 161.001 of the Family Code
cannot be harmonized and therefore, section 1912(f) preempts section 161.001.

3We note that K.B.L. has not complained of the trial court’s failure to make this finding in the judgment;
therefore, that issue is not before us. See Gilbert v. City of El Paso, 327 S.W.3d 332, 335 (Tex. App. — El
Paso 2010, no pet.) (Appellate court has no discretion to consider an issue not raised in the appellant's
brief in a civil case, even if the ends of justice so require.) Because of this, we do not address the
Department’s argument that the finding in the judgment that the Department complied with the ICWA is
a sufficient finding.

In the Interest of G.C., M.C., and H.C.                                                             Page 4
Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 13, 2015
[CV06]




In the Interest of G.C., M.C., and H.C.                                                Page 5
