                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00024-CV




   IN THE INTEREST OF A.W. AND M.W., CHILDREN




         On Appeal from the 76th District Court
                 Titus County, Texas
               Trial Court No. 40,040




      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 Vince’s and Emma’s parental rights to their two

children, A.W. and M.W.1 Vince and Emma appeal. 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

cases involving an Indian child when the trial court knows or has reason to know that an Indian

child is involved. 25 U.S.C.A § 1912(a); Doty-Jabbaar v. Dallas Cty. Child Protective Servs., 19

S.W.3d 870, 874 (Tex. App.—Dallas 2000, pet. denied). The ICWA defines an Indian child as an

“unmarried person who is under the age of 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, however, does not define what constitutes

being a ‘member’ or ‘being eligible for membership.’” In re J.J.C., 302 S.W.3d 896, 900 (Tex.

App.—Waco 2009, no pet.) (citing 25 U.S.C.A. § 1903(4)). Each individual tribe uses its own

criteria for determining tribe membership. In re R.R., 294 S.W.3d 213, 217–18 (Tex. App.—Fort



1
 In order to protect the children’s privacy, we will refer to the appellants by pseudonyms, and the children will be
referred to by initials. See TEX. R. APP. P. 9.8.

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Worth 2009, no pet.). A child’s parent may petition a court of competent jurisdiction to set aside

involuntary termination for failure to comply with the ICWA). Id.

        “The Bureau of Indian Affairs [BIA] created guidelines for state courts to use in Indian

child custody proceedings to assist with the interpretation of the ICWA.” 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

Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings (BIA

Guidelines), 44 Fed. Reg. 67,584 (Nov. 26, 1979)). Under 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 68,586 (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).




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       “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. § 1921(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.” Id. (quoting 25 C.F.R. § 23.11(a), (b), (c)). 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 or certified mail with return receipt 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 the maiden, married, and former names or aliases) of the parents.”

25 C.F.R. § 23.111(d). On receipt of the notice, the Secretary of 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 custodian within fifteen days or to notify the trial court how much time is needed to

complete the search for the child’s tribe. 25 C.F.R. § 23.11(c). A violation of the ICWA notice

provisions may be just cause for invalidating the termination proceedings at some future point in

time. 25 U.S.C.A. § 1914.

       After Vince and Emma brought to the court’s attention that they believed the children were

of American Indian descent, the Department sent a notice of pending custody proceeding involving

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Indian child to “Muscogee (Creek) Nation[,] C/O ICWA Representative” in Okmulgee,

Oklahoma. 2 Also in the record is a letter from the Department addressed to Bill John Baker,

Principal Chief, Eastern Oklahoma. The letter contained an address located in Tahlequah,

Oklahoma. However, there is nothing in the record to show that the Regional Director or the

Secretary of the Interior were notified of the proceeding. See 25 C.F.R. § 23.11(a), (b), (c).

            According to the BIA website, notices sent from Titus County pursuant to Section

23.111(e) must be sent to the Regional Director at both of the following offices:

            Eastern Oklahoma Region
            3100 W. Peak Boulevard
            Muskogee, OK 74401
            Phone: (918) 781-4608
            Fax Number: (918) 781-4604




2
    Donna Gould, an intake specialist for the Muscogee (Creek) Nation, responded by letter, stating,

            Please be advised that the Indian Child Welfare Program has examined the tribal records and the
            above named children cannot be traced within our tribal records based upon the information
            provided regarding blood-related immediate family members.

            The above named children will not be considered as “Indian children” in relationship to the
            Muscogee (Creek) Nation as defined in the Federal Indian Child Welfare Act, 25 U.S.C. section
            1903(4). Therefore, the Muscogee (Creek) Nation is NOT empowered to intervene in this matter.

        In addition, the record contains a letter from Lisa Foreman with the Office of Indian Child Welfare for the
Cherokee Nation, stating,

            Cherokee Nation Indian Child Welfare has examined the tribal records regarding the above named
            child/children and none of the names provided can be found.

            The child is/children are NOT an “Indian child/children” in relation to the Cherokee Nation as
            defined in the Federal Indian Child Welfare Act, 25 U.S.C. Section 1903(4). Therefore, the
            Cherokee Nation does not have legal standing to intervene based on the information exactly as
            provided by you.

                                                            5
       Southern Plains Region
       US Indian Affairs Bureau - P.O. Box 368
       132 E Broadway St
       Anadarko, OK 73005
       Phone: (405) 247-6673
       Fax Number: (405) 247-5611

       Failure to comply with the notice requirements of the ICWA provisions creates the danger

of invalidation of parental-rights termination proceedings.       Yet, when an appellate court

determines there has been a potential violation of the ICWA notice provisions, reversal is not

necessarily warranted. Instead, an appellate court may remand the case to the trial court so that

proper notice may be provided. See TEX. R. APP. 44.4.

       Because the inquiry required by the ICWA is necessary here, we abate this matter with the

following instructions:

       (1)   the trial court shall provide, no later than August 21, 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 September 20, 2019,
       to determine whether A.W. and M.W. are Indian children 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.W. and M.W. are Indian children;

       (4)   the reporter’s record from the hearing shall be filed with this Court no later than
       September 27, 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 September 27, 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




                                                6
be reinstated in this Court following the filing of the supplemental clerk’s record. Until such time,

the August 21, 2019, submission date is hereby withdrawn.

       IT IS SO ORDERED.



                                                  BY THE COURT



DATE: August 14, 2019




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