M. Related 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. Federal Appellate Courts

Brackeen v. Haaland, 994 F.3d 249 (5th Cir. Apr. 6, 2021), is a 2017 lawsuit originating in the U.S. District Court for the Northern District of Texas.

On April 6, 2021, the Fifth Circuit issued a 325-page opinion in which no principal opinion nor any other writings in the case garnered an en banc majority on all issues. Therefore, the court provided an issue-by-issue summary of the en banc court's holdings, which does not override or amend the en banc opinions themselves.

Special Issue: The Fifth Circuit's Brackeen opinion is complex and only applies to Louisiana, Mississippi, and Texas. A key takeaway is that ICWA remains constitutional, and the legal issues addressed in the case remain alive and ripe for decision before any state court in which they are raised. The Supreme Court of the United States granted petitions for a writ of certiorari and will hear oral arguments in the Fall 2022 term. For more details about the Fifth Circuit opinion and case history please see the July 1, 2021 Resource Letter from the Children's Commission. See also the related state case Interest of Y.J., No. 02-19-00235-CV, 2019 WL 6904728 (Tex. App.—Fort Worth, December 19, 2019, pet. denied).

3. Texas Courts

a. “Indian Child” Status

In re E.A.H., 2018 WL 2451824 (Tex. App.—Austin June 1, 2018, no pet.) (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 Dawes Rolls not required.)

In re C.C. and Z.C., No. 12-17-00114-CV, 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.) (termination reversed where documents in clerk's record indicated Father reported “Indian blood” but trial court failed to make determination of child's status. Case was remanded for determination of child's Indian status.)

In re A.E., No. 05-17-00425-CV, 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.)

C.D.G.D.M., v. Dept. of Family and Protective Servs., No. 03-17-00477-CV, 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; 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 WL 1730740 (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 was sufficient to trigger duty to give notice to the Tribe); (In the Interest of Z.C., No. 12-15-00279-CV, 2017 WL 1534050 (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 judgment was then affirmed.)

In re D.D, No.12-15-00192-CV, 2016 WL 7401925 (Tex. App.—Tyler 2016, pet. denied) (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 WL 814195 (Tex. App.—Fort Worth, Feb. 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 WL 6738266 (Tex. App.—Corpus Christi-Edinburg, Dec. 27, 2012, 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 was not considered 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" that “Indian child” was involved.)

In re R.R., 294 S.W. 3d 213 (Tex. App.—Fort Worth 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 [below], 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 Servs., 19 S.W.3d 870 (Tex. App.—Dallas 2000, pet. denied) (termination reversed for failure to adhere to ICWA requirements where court concluded "it is apparent [the agency] acknowledged the child's status as an ‘Indian child' …” when caseworker notified the Tribe in a prior proceeding for termination of parental rights and again in this case but failed to apply ICWA.)

b. Notice

In the Interest of A.H., No. 04-21-003670-CV, 2022 WL 527661 (Tex. App.—San Antonio Feb. 23, 2022, pet. denied) (mem. op.) (ICWA notice is not required where trial court had no reason to believe A.H. was an “Indian child” under ICWA, whether or not the original trial court asked each participant about the child's Native American ancestry, when Mother was given an opportunity to provide evidence at a de novo trial.)

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, 2019 WL4784419 (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, 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 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.)

c. ICWA Application

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 witness testimony and all necessary ICWA findings.)

In re J.J.T., 544 S.W. 3d 874 (Tex. App.—El Paso 2017, no pet.) (termination judgment reversed where Tribal intervention denied at trial as untimely and not in writing.)

Villarreal v. Villarreal, No. 04-15-00551-CV, 2016 WL 4124067 (Tex. App.—San Antonio Aug. 3, 2016, no pet.) (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.)

B.O. v. Tex. Dep't of Family and Protective Servs., No. 03-12-00676-CV, 2013 WL 1567452 (Tex. App.—Austin, Apr. 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.")

d. Burden of Proof

In re G.C., No. 10–15–00128–CV, 2015 WL 4855888 (Tex. App.—Waco, Aug. 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.)

BUT SEE 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 interest (“an Anglo standard”) and on statutory grounds for termination under the Texas Family Code.)

e. Pleadings and Jury Charge

In re G.C., No. 10–15–00128–CV, 2015 WL 4855888 (Tex. App.—Waco, Aug. 13, 2015, no pet.) (mem. op.) (concurrent application of 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 Texas 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.)

f. Active Efforts

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 Texas Family Code, 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)

g. Qualified Expert Witness

N.M. v. Tex. Dep't of Family and Protective Servs., No. 03-19-00240-CV, 2019 WL 4678420 (Tex. App.—Austin Sept. 26, 2019, no pet.) (mem. op.) (termination order reversed where no qualified expert witness testified as required under ICWA.)

In re D.L.N.G., No. 05-19-00206-CV, 2019 WL 3214151 (Tex. App.–Dallas, July 17, 2019, no pet.) (reversed and remanded trial court's final order finding that the trial court failed to comply with 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 that 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., No. 03-17-00698-CV, 2018 WL 1220895 (Tex. App.—Austin, Mar. 9, 2018, no pet.) (mem. op.) (testimony of foster parent and Department caseworker failed 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 necessitated remand.)

In re V.L.R., 507 S.W.3d 788 (Tex. App.—El Paso, Nov. 18, 2015, no pet.) (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, was not a qualified expert witness.)

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, 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.)

h. Jurisdiction/Transfer

In re S.R.P. and C.P., 2021 WL 1881036 (Tex. App.—Amarillo May 10, 2021, pet. denied) (mem. op.) (Appellate court dismissed case on appeal for lack of jurisdiction where the trial court ordered the case transferred to the District Court for the Citizen Potawatomi Nation on motion of the Nation after trial court terminated parental rights. The appellate court noted that there are times when Texas and an Indian Tribe may share jurisdiction over a child but in this case the Tribe has exclusive jurisdiction under 25 U.S.C. § 1911.)

Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (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, and 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.”)

i. Remedy for ICWA Violation

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

In re G.D.P., No. 09–14–00066–CV, 2014 WL 3387639 (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 WL 128667 (Tex. App.—Waco Mar. 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 WL 1380123 (Tex. App.—Waco, Apr. 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.)

j. Standard of Review

In re V.L.R., 507 S.W.3d 788, (Tex. App.—El Paso 2015, no pet.) (where burden of proof is beyond a reasonable doubt in ICWA termination case, the Jackson v. Virginia, 99 S.Ct. 2781 (1979) 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.)