L. Case Notes

1. U.S. Supreme Court

Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (Court held: (1) the higher burden of proof and standard for termination of parental rights under ICWA do not apply to Indian parent who never had custody and cannot resume or continue to have custody of an Indian child; (2) requirement that "active efforts" be made to prevent the breakup of an Indian family does not apply to a parent who abandons a child before birth and never had custody; and (3) placement preferences do not bar a non-Indian family from adopting when no other eligible candidate (relative, tribal member, or other Indian person) seeks to adopt an Indian child)

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (denial of tribe's motion to vacate adoption decree reversed on appeal, where both parents were members of the tribe and resided on the reservation, left the reservation prior to twins' birth and signed consent to adoption. Where children neither reside nor are domiciled on reservation, 25 U.S.C. § 1911(b) creates concurrent but presumptive tribal jurisdiction that requires the state court to transfer jurisdiction unless good cause is shown or tribe declines)

2. Texas Courts


In re E.A.H., 2018 WL 2451824 (Tex. App.—Austin June 1, 2018, no pet. h.) (mem.op.) (where Department gave notice with relevant family history to three Cherokee tribes and BIA and none confirmed Indian child status ICWA does not apply and notice to other tribes on the Dawe's Roll not required)

In re C.C. and Z.C., 2018 WL 718987 (Tex. App. — Tyler February 6, 2018, no pet.) (mem.op.) (ICWA does not apply where parent's asserted affiliation is with Azteca, which is not a federally recognized tribe for purposes of ICWA); original case, In re C.C. and Z.C., 2018 WL 3184319 (Tex. App. — Tyler, 2017, no pet.) (remand necessary where despite father's report of “Indian blood”, status report indicating each child's Native American status yet to be determined and permanency reports showing both parents denied Native American status, without explanation, trial court failed to make determination of Indian child status)

In re A.E., 2017 WL 4707488 (Tex. App. —Dallas 2017, no pet.) (mem.op.) (where mother denied Indian heritage until trial was underway, appellate court abated case for further investigation; after caseworker testified that twenty recognized tribes all responded that the child was neither enrolled nor eligible for enrollment, trial court did not know or have reason to know of Indian child status)

In re C.D.G.D.M., v. DFPS, 2017 WL 4348237 (Tex. App. —Austin 2017, no pet.) (mem.op.) (ICWA does not apply where Department gave notice to all Cherokee tribes, and all concluded child did not meet Indian child definition)

In re T.R., 491 S.W.3d 847 (Tex. App. — San Antonio 2016, no pet.) (termination affirmed where mother repeatedly denied Native American ancestry and great-grandmother reported no family member was registered with the Choctaw Nation and her own membership was in a Cherokee tribe not recognized by Congress)

In re Z.C., No. 12-15-00279-CV, 2016 Tex. App. LEXIS 4546 (Tex. App. — Tyler April 29, 2016, no pet.) (mem.op) (termination abated and remanded for trial court to make findings as to Indian child status; three permanency reports referencing Indian child status and report from CASA volunteer that father refused hair follicle drug test on grounds that he was Indian and could not cut hair sufficient to trigger duty to give notice to the tribe; ) (In the Interest of Z.C., No. 12-15-00279-CV, 2017 Tex. App. LEXIS 3896 (App.—Tyler Apr. 28, 2017) On remand, proceeding reinstated and proper notice was sent. The court found child's possible tribe was not an ICWA recognized tribe. Trial court judgement was then affirmed.)

In re D.D, No.12-15-00192-CV, 2016 WL 7401925 (Tex. App. — Tyler 2016, no pet. h.) (mem.op.) (in separate opinions involving two parents, appeal of termination case abated and remanded, for failure to address issue of child's tribal heritage and give proper notice despite references in the record to family tribal history)

In re N.A., No. 02-13-00345-CV, 2014 LEXIS 2377 (Tex. App. — Fort Worth, February 28, 2014, no pet.) (information in progress reports that mother reported her great-great-grandfather was a registered Cherokee sufficient to trigger notice to tribe requirement)

In re C.T., No. 13-12-00006-CV, 2012 LEXIS 10746 (Tex. App. — Corpus Christi-Edinburg, Dec. 27, 2013, no pet.) (where child's grandmother testified child was half-Indian because she is half Black Foot and the mother is half Cheyenne, but failed to indicate whether parents or children were members or children were eligible for membership, failure to apply ICWA not error)

In re J.J.C., 302 S.W. 3d 896 (Tex. App. — Waco 2009, no pet.) (allegation that maternal grandmother is member of Chippewa Indian Nation sufficient to give court "reason to believe" Indian child involved)

In re R.R., 294 S.W. 3d 213 (Tex. App. — Fort Worth, March 19, 2009, no pet.) (where grandmother is enrolled tribal member and tribe requested more information, notice to tribes and Bureau of Indian Affairs required before trial court can determine child's status as Indian child)

In re R.M.W., 188 S.W. 3d 831 (Tex. App. — Texarkana 2006, no pet.) (assertion of Indian heritage or blood without evidence of membership or eligibility for membership in an Indian tribe insufficient to put court on notice of Indian child; court distinguishes Doty-Jabbaar, noting DFPS did not admit child was Indian, and court made no finding that any children were tribal members)

Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W. 3d 870 (Tex. App. — Dallas, 2000, pet. denied) (termination reversed for failure to adhere to ICWA requirements where caseworker notified the tribe in a prior proceeding for termination of parental rights and again in this case, court concluded "it is apparent [the agency] acknowledged the child's status as an Indian child … ”)


In re S.J.H., 594 S.W.3d 682 (Tex. App.—El Paso 2019, no pet.) (reversed and remanded for failure to provide notice to a potential tribe, even as other tribes were notified and determined ineligible.)

In re A.E., No. 02-19-00173-CV (Tex. App.—Fort Worth Oct. 1, 2019, pet. denied) (mem. op.) (ICWA notice requirement must be strictly adhered to under 25 C.F.R. § 23.111(a)(2), (d)).

In re A.M., a Child, 570 S.W.3d 860 (Tex. App. – El Paso 2018, no pet.) (ICWA notice is not required during an emergency removal)

In re T.R., 491 S.W.3d 847 (Tex. App. — San Antonio, April 4, 2016, no pet.) (ICWA notice not required where mother repeatedly denied Native American ancestry and great-grandmother reported no family member was registered with the Choctaw Nation and her own membership was in a Cherokee tribe not recognized by Congress)

In re K.S., 448 S.W. 3d 521 (Tex. App. -- Tyler 2014, pet. denied) (failure to strictly comply with formal notice not basis for invalidation where tribe had actual notice, intervened, and participated in case)

In re R.R., 294 S.W. 3d 213 (Tex. App. — Fort Worth, March 19, 2009, no pet.) (strict compliance with specific ICWA notice requirements necessary to avoid exposing a termination decree to a petition to invalidate at some future date)


In re A.M., a Child, 570 S.W.3d 860 (Tex. App. – El Paso 2018, no pet.) (alleged defects in temporary orders do not invalidate a final termination order when the final order complies with all ICWA requirements, including supporting qualified expert testimony and all necessary ICWA findings.

In re J.J.T., 544 S.W. 3d 874 (Tex. App. — El Paso, no pet.) (termination judgment reversed where tribal intervention denied because untimely and not in writing)

Villarreal v. Villarreal, No. 04-15-00551-CV, 2016 Tex. App. LEXIS 8272 (Tex. App — San Antonio Aug. 3, 2016, no pet. h.) (mem. op.) (a divorce is not a "child custody proceeding" subject to ICWA)

In re E.G.L., 378 S.W. 3d 542 (Tex. App.— Dallas 2012, pet. denied) (ICWA does not apply to suit by stepfather seeking adjudication of father's paternity and appointment as conservator)

In re B.O., No. 03-12-00676-CV, 2013 LEXIS 4712 (Tex. App.—Austin, April 12, 2013, no pet.) (mem. op.) (argument that ICWA should apply because father is a tribal member even though children are not members or eligible for membership in a tribe rejected)

Comanche Nation v. Fox, 128 S.W.3d 745 (Tex. App. —Austin 2004, no pet.) (ICWA does not apply to proceeding to modify child conservatorship where no public or private agency is attempting to remove a child from an Indian family)

Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W.3d 870 (Tex. App. — Dallas 2000, pet. denied) (even if tribe does not intervene, court must apply ICWA if Indian child involved and "[w]hen, as here, an ICWA proceeding takes place in state court, rather than a tribal forum, the trial court should take great precaution to ensure the prerequisites of ICWA have been satisfied.")


In re G.C., No. 10–15–00128–CV, 2015 Tex. App. LEXIS 8527 (Tex. App.—Waco, August 13, 2015, no pet.) (mem. op) (Section 1912(f)'s requirement of a finding beyond a reasonable doubt is limited to the finding expressly stated in Section 1912(f) and does not apply to the termination findings under the Texas Family Code)

In re K.S., 448 S.W.3d 521 (Tex. App.— Tyler 2014, pet. denied) (there must be proof beyond a reasonable doubt that active efforts to prevent the breakup of the Indian family were made and proved unsuccessful)


In re G.C., No. 10–15–00128–CV, 2015 Tex. App. LEXIS 8527 (Tex. App.—Waco, August 13, 2015, no pet) (mem. op.) (concurrent application of the ICWA and the Texas Family Code to proceedings involving Indian children provides additional protection 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.)

In re K.S., 448 S.W. 3d 521 (Tex. App. —Tyler 2014, pet. denied) (when ICWA applies, both ICWA and the Texas Family Code must be satisfied; not error to submit broad form jury charge where charge included instruction on statutory language and burden of proof under both ICWA and the Family Code; and, there must be proof beyond a reasonable doubt that "active efforts" were made and were unsuccessful to prevent the breakup of the Indian family under 25 U.S.C. § 1912(d))

In re W.D.H., 43 S.W.3d 30 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (termination order reversed, citing failure to make requisite ICWA findings and error in making findings on best interests (“an Anglo standard”) and on statutory grounds for termination under the Texas Family Code. Father's whereabouts and status as a member of the Cheyenne-Arapaho tribe of Oklahoma were unknown when child was removed at birth and only after reunification was in progress and father was convicted of burglary did he advise the agency he was one-fourth Indian)


In re K.S., 448 S.W.3d 521 (Tex. App. — Tyler 2014, pet. denied) (in dicta the court observes, "[b]ut when aggravated circumstances exist and reasonable efforts for reunification are not required by the family code, the ICWA requirements must still be satisfied because they provide a higher degree of protection than state law," an approach consistent with the generally strict interpretation of ICWA by Texas courts)


N. M. v. Texas Dep't of Family and Protective Servs., No. 03-19-00240-CV (Tex. App.—Austin Sept. 26, 2019, no pet.) (mem. op.) (Termination order reversed where no qualified expert witness testified as required under the ICWA.)

In re D.L.N.G., 2019 WL 3214151 (Tex. App. – Dallas, July 17. 2019, no pet. h.) (reversed and remanded trial court's final order finding the trial court failed to comply with the ICWA requirement of a qualified expert witness before appointing the foster parents as managing conservators.)

In re D.E.D.L., 568 S.W.3d 261 (Tex. App.—Eastland 2019, no pet.) (the trial court was able to determine the Indian tribe's representative met the requirements for a qualified expert witness even though the Department did not specifically designate her, and the trial court did not expressly certify her as a qualified expert witness)

In re S.P., 2018 WL 1220895 (Tex. App. — Austin, March 9, 2018, no pet. h.) (mem.op.) (testimony of foster parent and Department caseworker fails to satisfy requirement for evidence, including qualified expert testimony, that “the continued custody of the child by the parent is likely to result in the serious emotional or physical damage to the child,” and necessitates remand)

In re V.L.R., 507 S.W.3d 788, (Tex. App. — El Paso, Nov. 18, 2015, no pet. h.) (caseworker without tribal membership, recognition by tribe of her 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, not a qualified expert)

Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W. 3d 870 (Tex. App. — Dallas, 2000, pet. denied) (without reference to the particular grounds for removal (cocaine exposed infant), court found social worker's nine and a half years of experience insufficient qualification as ICWA expert, citing the lack of evidence of social worker's education and familiarity with Indian culture and childrearing practices)


Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 at 169 (Tex. App.—Houston [14th Dist.] 1995) (error to use "best interests of the child" and the children's lack of contact with the tribe to determine good cause to deny transfer to tribal court; court approves use of a modified forum non conveniens doctrine, citing location of evidence and witnesses, to assess good cause and affirm denial of transfer, observing that “when a state court keeps a case in a concurrent setting, it is still required to apply the relevant sections of ICWA. In other words, avoiding tribal court jurisdiction does not render ICWA inapplicable.”)


In re V.L.R., 507 S.W.3d 788 (Tex. App. — El Paso, Nov. 18, 2015, no pet. h.) (violation of ICWA requires reversal of termination judgment)

In re G.D.P., No. 09–14–00066–CV, 2014 Tex. App. LEXIS 7477 (Tex. App. — Beaumont, 2014, no pet.) (parties agreed to reverse termination judgment based on violation of ICWA)

In the Interest of P.J.B., No. 10-12-00286-CV, 2013 LEXIS 4076 (Tex. App. — Waco, March 28, 2013, no pet.) (no violation where appeal abated and trial court found ICWA did not apply)

In re J.J.C., 302 S.W. 3d 896 (Tex. App. — Waco 2009, no pet.) (trial court's failure to follow ICWA can be raised for the first time on appeal; appeal abated pending trial court determination of Indian child status; disp. on merits, 2010 Tex. App. LEXIS 2513 (Tex. App.--Waco, April 7, 2010, no pet.) (mem. op.) (termination reversed and remanded based on determination that children were Indian children)

Doty-Jabbaar v. Dallas County Child Protective Services, 19 S.W. 3d 870 (Tex. App. — Dallas, 2000, pet. denied) (termination judgment reversed for failure to adhere to ICWA requirements)


In re V.L.R., 507 S.W.3d 788, (Tex. App. — El Paso, Nov. 18, 2015, no pet.) (where burden of proof is beyond a reasonable doubt in ICWA termination case, the Jackson v. Virginia standard requires review of evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found 25 U.S.C. § 1912(d) and (f) were satisfied beyond a reasonable doubt)

3. Other State Courts


In the interest of N.S., 837 N.W. 2d 680 (Iowa Ct. App. 2013) (where all three Ute tribes notified, two confirmed child was not a member and the third provided sufficient evidence for the court to conclude child was not a member, trial court properly concluded that ICWA did not apply)

In re Jack, 122 Cal. Rptr.3d 6 (Cal. Ct. App. 2011) (father and children's lack of tribal enrollment does not determine Indian child status; differences in tribal membership criteria and enrollment procedures mean that whether a child is an Indian child depends on "the singular facts of each case")

In re B.R., 97 Cal. Rptr. 3d 890 (Ca. Ct. App. 2009) (where children's biological father had been adopted by Apache parent, error to allow tribe to determine Indian child status)

In re E.H., 46 Cal. Rptr.3d 787 (Cal. Ct. App. 2006) (mother's failure to repond to trial court's repeated exhortations that she disclose Indian heritage or to challenge social worker's report stating ICWA did not apply prompts court to observe “this is the most cynical and specious ICWA claim we have encountered.” It is also worth noting that even on appeal, the mother did not assert that the children were subject to ICWA, but merely that the case should be reversed because the state agency and the court had made insufficient inquiries about whether ICWA applied to these children)

In re Gerardo A., 14 Cal. Rptr. 3d 798 (Cal. Ct. App. 2004) (error to find ICWA did not apply where child welfare department failed to share additional Indian heritage information with all proper tribes. Without available Indian family history information, neither the tribe nor the Bureau of Indian Affairs can investigate and determine if child is an “Indian child”)

In re O.K., 130 Cal. Rptr. 2d 276 (Cal. Ct. App. 2003) (no reason to believe child is an Indian child where the only evidence is paternal grandmother's vague and speculative statement that child's father “may have Indian in him.”)


Oliver N. v. State, 2019 WL 2896647 (Alaska 2019) (Based on the court's findings in Eva H. and reviewing two separate appeals in a consolidated opinion, an expert witness was qualified to speak to tribal social cultral standards but lacked the ability to testify to the risk of harm and did not qualify as an expert witness for the purposes of ICWA; similiarly, an expert in ICWA compliance was not qualfiied to testify to the risk of harm)

Eva H. v. State, 436 P.3d 1050 (Alaska 2019) (evidence was unsufficient to qualify an attorney, who had previously served as a guardian ad litem, as an expert witness for the purposes of ICWA; The court based its reasoning on a plain reading of 25 C.F.R. § 23.122(a) which requires an expert witness be qualified to to testify to the risk of harm in every case but the ability to testify to prevailing social and cultural standards isn not essential in every case)

Matter of I.W., 419 P.3d 362 (Okla. Civ. App. 2017) (tribal social services director who is an elder in the tribe and licensed as a social worker witness is not disqualified as expert witness under ICWA because he was not the primary caseworker on the case; however, an expert's equivocal testimony that fails to support the required finding does not satisfy the burden)

Bob. S. v. State, 400 P.3d 99 (Alaska 2017) (proof that parent's continued custody likely to result in serious damage to the child may be established with the testimony of one or more experts or by aggregating testimony of lay and expert witnesses)

In re L.M.B., 54 Kan. App.2d 285 (Kan. Ct. App. 2017) (despite lack of experience in the direct delivery of child and family services, tribal doctor who is a member of the same tribe as the children, with a PhD in Native American history, who is professor of indigenous American Indian studies and has taught the Indian Child Welfare Act is a qualified expert)

Caitlyn E. v. State, 399 P.3d 646 (Alaska 2017) (tribal woman with tribal social work experience who testified that members of Yupik tribes “don't raise our children being verbally abusive” is a qualified expert)

In re K.S.D., 904 N.W. 2d 479 (North Dakota 2017) (despite testimony from agency experts qualified in child deprivation and welfare, termination reversed and case remanded in the absence of testimony from qualified expert that continued custody by parent or Indian custodian is likely to result in serious emotional or physical damage to the child)

In re D.B., 414 P. 3d 46 (Colo. Ct. App. 2017) (ICWA expert not required to specifically state that continued custody of the Indian child by the parent will likely result in serious physical or emotional harm to the child; rather, expert's testimony must be a part of the evidence that support the court's finding to this effect)

In re Diana P., 355 P.3d 541 (Alaska, Sept. 1, 2015) (where the basis for termination of parental rights is "culturally neutral," expert testimony combined with lay testimony can be sufficient to establish "serious emotional or physical damage.")

In re Shane, 842 N.W.2d 140 (Neb. Ct. App. 2013) (licensed mental health practitioner and certified professional counselor whose practice serving abused or neglected children and those with behavioral problems, includes Indian children, who has experience working with Indian youth at a youth shelter and at a high school program, qualifies as expert witness)

Brenda O. v. Arizona Dep't of Economic Security, 244 P.3d 574 (Ariz. Ct. App. 2010) (mental health professional qualified as expert witness, without extensive knowledge of prevailing social and cultural standards and childrearing practices of the Navajo where "there was no evidence at trial that Navajo culture or mores are relevant to the effect Brenda's demonstrated alcohol problem has on her children.")

Marcia V. v. Alaska, Office of Children's Services, 201 P.3d 496 (Alaska 2009) (legislative history suggests "expertise beyond the normal social worker qualifications" or "substantial education in the area of his or her specialty" are necessary but"[w]hen the basis for termination is unrelated to Native culture and society and when any lack of familiarity with cultural mores will not influence the termination decision or implicate cultural bias in the termination proceeding, the qualifications of an expert testifying under 25 U.S.C. § 1912(f) need not include familiarity with Native culture.")


In re Tavian B., 874 N.W.2d 456 (Nebraska 2016) (advanced stage of the proceedings not a valid basis for finding good cause to deny motion to transfer jurisdiction to a tribal court, based on Guidelines. Notably, the later enacted 25 C.F.R. § 23.118(c)(1) only prohibits consideration of this factor if the ICWA notice was given at an advanced state of the proceedings)

In re Jayden D., 842 N.W. 2d 199 (Neb. Ct. App. 2014) (no good cause to deny transfer to tribal court where no evidence introduced regarding the current location of parent and children, the identity and location of witnesses, location of the tribal court, or the ease with which evidence might be presented in the tribal court)

Navajo Nation v. Norris, 331 F.3d 1041 (9th Cir. 2003) (denial of tribe's challenge to adoption of Indian child based on state court's lack of jurisdiction affirmed, because Indian parents were not domiciliaries of the reservation at the time of the child's birth and as such, state court had concurrent jurisdiction)


In re R.H., 228 Cal.Rptr.3d 747 (Cal. Ct. App 2018) (good cause to deviate from the placement preferences established where mother obstructed efforts to place with maternal family, tribe failed to respond to repeated messages from the agency, child never had any contact with the Tribe, and was bonded to prospective adoptive parents)

In re D.L., 298 P.3d 1203 (Ok. Civ. App. 2013) (tribal family failed to show good cause to deviate from the mandatory placement preferences, which give first preference to extended family, whether or not family is associated with a tribe)

In re Enrique P., 709 N.W.2d 676 (Neb. Ct. App. 2012) (in the absence of evidence showing good cause to deviate from placement preferences, court order to cease search for relative placements reversed)

Navajo Nation v. Arizona Dep't of Economic Security, Z., 284 P.3d 29 (Ariz. Ct. App. 2012) (good cause to deviate from placement preferences where infant placed in foster home at one month of age, removal would create severe distress, and family agreed to expose child to tribal culture; original placement was with extended family of alleged father later excluded as father)


Damon W., 2018 WL 1357357, No. S-16739 (Alaska 2018) (agency's efforts over the entire case, showing efforts beyond developing case plan and leaving parent to complete it on his own, satisfy “active efforts”)


In re L.M.B., 54 Kan. App.2d 285 (Kan. Ct. App. 2017) ( “active efforts” does not require “absolutely every effort;” a narrow focus on what the caseworker failed to do ignores the other ways that the provider engaged in active efforts)

State ex rel. Children, Youth & Families Dep't v. Yodell B., 367 P.3d 881 (N.M. Ct. App., December 21, 2015) (no active efforts found where the Department created a service plan and referred the father to a parenting class but otherwise took a passive role and shouldered father with burden of locating and obtaining services and ensuring providers communicated with Department)

In re D.A., 305 P.3d 824 (Mont. 2013) (attempting to work around parent's incarceration, supervision, and chemical dependency problems, "[t]he Department's active efforts matched the Department's words in its desire to facilitate reunification.")

In re D.S., 806 N.W.2d 458 (Iowa Ct. App. 2011) (responding to tribe's statement that parents should be allowed up to five years additional time to reunify, court found active efforts to reunify were made, explaining "[w]hile ICWA focuses on preserving Indian culture, it does not do so at the expense of a child's right to security and stability.")

In re J.S.B., 691 N.W.2d 611 (S.D. 2005) ("we do not think Congress intended that ASFA's "aggravated circumstances" should undo the State's burden of providing 'active efforts' under ICWA.")

N.A. v. State, 19 P.3d 597 (Alaska 2001) (citing long list of efforts by child welfare agency as well as Dept. of Corrections to address parent's substance abuse and reunify family, court concludes state's effort were not only active, but exemplary)

In re Leticia V., 97 Cal. Rptr.2d 303 (Cal. Ct. App. 2000) (active efforts does not require duplicative reunification services or the performance of idle acts; where parent failed to respond to substantial but unsuccessful efforts to address drug problem in one child's case, repeating those efforts for the same parent in another child's case is not required)


In re S.E., 158 Cal. Rptr. 3d 497 (Cal. Ct. App. 2013) (failure to investigate child's Indian heritage and provide information to the tribe requires reversal of guardianship order and remand)

In re Adoption of Erin G, 140 P.3d 886 (Alaska 2006), 127 S.Ct. 591 (2006, cert. denied) (although ICWA contains no statute of limitations for a petition to invalidate, state law limiting challenge of adoption decree not based on fraud or duress to one year applied in the absence of explicit congressional intent to impose no time limit on such actions)