                    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


1
 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
                                                       3
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).
                                                       4
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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