C. Required Notice

ICWA imposes many specific requirements governing the timing, the type of notice, and the persons and entities entitled to notice. In re R.R., 249 S.W.3d 213 (Tex. App. — Fort Worth, March 19, 2009, no pet.). One overarching issue is that without notice, a Tribe cannot confirm or deny Indian child status. Even if a child turns out not to be subject to ICWA, if there is evidence of possible Indian child status, proof of compliance with notice requirements can be essential to counter a challenge based on violation of ICWA.

1. When is Notice Required?

Notice is required for each "child-custody proceeding." Defined as any action except an emergency hearing that may result in a foster care placement, termination of parental rights, preadoptive placement, or adoptive placement, this means any Suit Affecting the Parent Child Relationship filed by CPS requires notice. 25 U.S.C. § 1912(a); 25 C.F.R. § 23.2.

2. Timing (10 + 20 days)

No “foster care placement or termination of parental rights” hearing can be held until at least ten (10) days after notice is received (subject to an additional 20 days if the parent/custodian/tribe requests additional time for preparation). 25 U.S.C. § 1912(a); 25 C.F.R. § 23.112 (a).[61]

To avoid a delay and potential challenge to the court’s jurisdiction, the best practice is to set the initial hearing at least 30 days after notice is given (in effect, this assumes that a 20-day continuance is requested and granted).

3. When Identity of Parent / Indian Custodian is Known

Notice of a pending custody proceeding involving an Indian child must be sent to:

•   Every known parent(s);

•   Indian custodian;

•   Each identified tribe; and

•   Regional Director, Bureau of Indian Affairs (BIA) (a representative of the Secretary of Interior). 25 U.S.C. § 1912(a); 25 C.F.R. §23.11(a).

4. When Identity is Not Known

If the identity or location of a parent or Indian custodian is not known or the identity of the tribe cannot be determined, Notice to Bureau of Indian Affairs: Parent, Custodian or Tribe of Child Cannot be Located or Determined must be sent to:

•   Regional Director, Bureau of Indian Affairs (a representative of the Secretary of Interior). 25 U.S.C. § 1912(a); 25 C.F.R. §23.11(b).

5. How to Send Notice

DFPS has notices with the required advisements which can be tailored with specific child and family information. A copy of the petition should be attached as well as any additional family history, including family trees or copies of membership cards. Family history information can be critical to a tribe's ability to determine membership status.

If a parent has requested anonymity, the agency and the court should maintain confidentiality and relevant court documents should be under seal. 25 C.F.R. § 23.107(d).[62]

The Regulations will allow giving notice by registered or certified mail, with return receipt requested in either case. 25 C.F.R. §23.11(a); 25 C.F.R. §23.111(c). As a practical matter, certified mail is preferred because this allows delivery to someone other than the addressee. If the intended recipient of registered mail is not available, registered mail must be returned to sender, making it necessary to resend notice. Notice may be sent by personal service or electronically in addition, but this does not satisfy the service requirement. 25 C.F.R. § 23.111(c). Particularly where an e-mail contact is provided, sending a duplicate notice this way is best practice to expedite the process of determining a child's status.

A copy of each notice sent, with the return receipt or other proof of service must be filed with the court and should be admitted into evidence at trial. 25 C.F.R. §23.111(a)(2).

6. Parent/Indian Custodian

A parent includes the biological or adoptive parent of an Indian child, including a non-Indian parent. 25 U.S.C. § 1903(9); 25 C.F.R. § 23.2. An alleged father must acknowledge paternity or be legally determined to be the father before being recognized as a parent. In re V.L.R. 2015 Tex. App. LEXIS 11848 (Tex. App. —El Paso, Nov. 18, 2015, no pet.) (unidentified tribe of a child's unwed father who fails to establish paternity is not the child's tribe).

A primary impact of the U.S. Supreme Court's Baby Girl opinion was to limit the rights of a father who was a registered tribal member but had never had custody of his child. The Court found that an action for termination of parental rights against such a father could proceed without meeting the higher burden of proof or standards in 25 U.S.C. § 1912(d) and (f). Adoptive Couple v. Baby Girl, 133 S.Ct. 2552 (2013). The impact of this decision is limited by the following:

The Baby Girl decision does not impact other substantive rights under ICWA, including the right to notice and appointment of counsel for indigent parents;

A Texas court declined to extend the Baby Girl rationale to a parent who had prior custody of an Indian child, albeit not for the preceding twelve years; In re V.L.R. 2015 Tex. App. LEXIS 11848 (Tex. App. —El Paso, Nov. 18, 2015, no pet.).

Tex. Fam. Code § 263.202 (a)(1) and DFPS policy require that a diligent search be conducted and notice provided to a parent, including an alleged father;

The Regulations now define "continued custody" to include physical and/or legal custody (including under tribal law or custom) that a parent "already has or had at any point in the past," and specify that a biological mother has had custody of a child. 23 C.F.R. § 23.2.[63]

“Indian custodian” is broadly defined as “any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.” 25 U.S.C. § 1903(6).

7. More Than One Tribe

If a child has ties to more than one tribe, notice to each tribe is essential so that each tribe can make a determination of membership or eligibility. If more than one tribe responds affirmatively, the Regulations direct the Tribes to designate the child's Tribe and if the Tribes do not agree, the State court must do so, based on specified criteria. 25 C.F.R. §23.109(c).[64]

8. Contact Information

The best resource for contact information for individual tribes is the ICWA notice published in the Federal Register. For tribes without a listing, the Regulations mandate contacting the tribe directly to find out the proper contact person. If the Tribe fails to respond to written communication, seek assistance from the Bureau of Indian Affairs.

For notice to the Regional Director:

For child custody proceedings In Texas, except for notice to the Ysleta del Sur Pueblo of El Paso County:

Anadarko Regional Director

BIA

P.O. Box 368

Anadarko, Oklahoma 73005

For child custody proceedings in El Paso and Hudspeth counties in Texas:

Albuquerque Regional Director

BIA

615 First St.

P.O. Box 26767

Albuquerque, New Mexico 87125.

9. After Initial ICWA Notice

Once the initial Notice of Pending Custody Proceeding Involving Indian Child is sent as required, send notice to the same listed persons and Tribes as follows:

•   Unless or until a tribe confirms a child is not a member or eligible for tribal membership, DFPS will send notice of interim hearings, permanency planning meetings, family group conferencing or similar meetings to all persons and tribes entitled to notice by regular first class mail; and

•   If the pleadings are amended, or a final hearing is set, DFPS will send a new Notice of Pending Custody Proceeding Involving Indian Child, with the petition and any additional child and family history information attached, by certified or registered mail, return receipt requested. 25 U.S.C. § 1912(a); 25 C.F.R. §23.111.