in the Interest of Z. C., a Child ( 2016 )

NO. 12-15-00279-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 1ST
IN THE INTEREST OF Z. C.,
§ JUDICIAL DISTRICT COURT
A CHILD
§ SAN AUGUSTINE COUNTY, TEXAS
MEMORANDUM OPINION AND ABATEMENT ORDER
C.C. and W.C. appeal the termination of their parental rights. In one and three issues
respectively, they challenge the trial court’s termination order. We abate this appeal and remand
the case to the trial court with instructions.
BACKGROUND
C.C. and W.C. are the parents of Z.C., born February 2, 2009. On July 25, 2014, the
Department of Family and Protective Services (the Department) filed an original petition for
protection of Z.C., for conservatorship, and for termination of C.C.’s and W.C.’s parental rights.
The Department was appointed temporary managing conservator of the child, and C.C. and W.C.
were appointed temporary possessory conservators with limited rights and duties.
At the conclusion of the trial on the merits, the jury found, by clear and convincing
evidence, that C.C.’s parental rights should be terminated under subsections (D), (E), (L), (N),
and (O) of Texas Family Code Section 161.001(b)(1). The jury also found, by clear and
convincing evidence, that W.C.’s parental rights should be terminated under subsections (D),
(E), (N), and (O). Thereafter, the trial court found, by clear and convincing evidence, that C.C.
and W.C. had engaged in one or more of the acts or omissions necessary to support termination
of their parental rights, and that termination of the parent-child relationship between C.C., W.C.,
and Z.C. is in the child’s best interest. Based on these findings, the trial court ordered that the
parent-child relationship between Z.C. and her parents be terminated. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
As part of his first issue, W.C. argues that the evidence is legally insufficient to support
the jury's finding that his parental rights to Z.C. should be terminated. A no evidence complaint
is preserved through one of the following: (1) a motion for instructed verdict; (2) a motion for
judgment notwithstanding the verdict; (3) an objection to the submission of the issue to the jury;
(4) a motion to disregard the jury’s answer to a vital fact issue; or (5) a motion for new trial. T.O.
Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992); see also In re
D.J.J., 178 S.W.3d 424, 426-27 (Tex. App.—Fort Worth 2005, no pet.). W.C. did not make an
objection to the submission of the issue to the jury or file a postverdict motion to preserve his
legal sufficiency complaint. Although he filed a motion for new trial, he did not challenge the
legal sufficiency of the evidence in the motion. See In re A.H.J., No. 05-15-00501-CV, 2015
WL 5866256, at *10 (Tex. App.—Dallas Oct. 8, 2015, pet. denied) (mem. op.) (finding that
mother waived her legal sufficiency complaint because motion for new trial raised only factual
sufficiency challenge). Therefore, W.C. has waived his complaint about the legal sufficiency of
the evidence to support the jury’s findings.
Also as part of his first issue, W.C. contends that the evidence is factually insufficient to
support the jury’s findings that his parental rights to Z.C. should be terminated. A point in a
motion for new trial is a prerequisite to a complaint of factual insufficiency of the evidence to
support a jury finding. TEX. R. CIV. P. 324(b)(2); In re A.J.L., 136 S.W.3d 293, 301 (Tex.
App.—Fort Worth 2004, no pet); see also In re M.S., 115 S.W.3d 534, 547 (Tex. 2003)
(applying Texas Rule of Civil Procedure 324(b)(2) requiring motion for new trial to preserve
complaint of factual sufficiency to support jury finding in parental termination cases). Although
W.C. filed a motion for new trial, he did not raise the issue of factual sufficiency in the motion.
Therefore, he has waived his complaint about the factual sufficiency of the evidence to support
the jury's findings. Accordingly, we overrule W.C.’s first issue.1
IMPROPER JURY ARGUMENT
In his second issue, W.C. complains that statements made by C.C.’s attorney during his
opening statement and closing argument were improper jury arguments. Further, he contends,
1
W.C. makes no claim that failure to preserve error was unjustifiable or the result of ineffective assistance
of counsel. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).
2
that even though he did not object at the time, these arguments were so plainly prejudicial that an
instruction to disregard would probably have been to no avail. In other words, W.C. asserts that
C.C.’s attorney’s statements were incurable jury argument. Generally, an objection to improper
jury argument must be preserved by a timely objection and request for an instruction that the jury
disregard the improper remark. TEX. R. APP. P. 33.1(a)(1); see also Nguyen v. Myers, 442
S.W.3d 434, 442 (Tex. App.—Dallas 2013, no pet.). However, a point in a motion for new trial
is a prerequisite to a complaint of incurable jury argument that is not otherwise ruled on by the
trial court. See TEX. R. CIV. P. 324(b)(5); Nguyen, 442 S.W.3d at 442; Clark v. Bres, 217
S.W.3d 501, 509 n.1 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
Here, W.C. admits that he did not timely object to the attorney’s statements and
arguments. Further, he did not raise the issue of incurable jury argument in his motion for new
trial. See TEX. R. CIV. P. 324(b)(5); Nguyen, 442 S.W.3d at 442; Clark, 217 S.W.3d at 509 n.1.
Therefore, he has waived his complaint about C.C.’s attorney’s allegedly incurable jury
arguments. Accordingly, we overrule W.C.’s second issue.2
FATHER’S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, W.C. argues that his trial counsel “unreasonably” failed to conduct an
inquiry outside the presence of the venire panel after a prospective juror commented on her
knowledge of W.C. and Z.C. According to the record, the prospective juror stated that she knew
W.C., his girlfriend, and Z.C., was Z.C.’s teacher at a day care, and “found [W.C.] obnoxious.”
His trial counsel, W.C. asserts, should have moved to disqualify the venire panel and his failure
to do so resulted in a trial tainted by the negative opinion and remarks of the prospective juror.
Thus, he contends, he was deprived of his right to a fair trial by an impartial jury. We construe
W.C.’s argument to be that he received ineffective assistance of counsel from his retained
attorney.
“In Texas, there is a statutory right to counsel for indigent persons in parental-rights
termination cases.” In re M.S., 115 S.W.3d at 544; see TEX. FAM. CODE ANN. § 107.013(a)(1)
(West Supp. 2014). The Supreme Court of Texas has held this statutory right to appointed
counsel necessarily “embodies the right to effective counsel.” In re B.G., 317 S.W.3d 250, 253-
2
Because W.C. has waived his complaint, we express no opinion about whether he could have complained
about the jury arguments of C.C.’s attorney.
3
54 (Tex. 2010) (quoting In re M.S., 115 S.W.3d at 544). Thus, a parent may challenge an order
of termination on the ground that court-appointed counsel rendered ineffective assistance. In re
M.S., 115 S.W.3d at 544-45 (applying Strickland standard to parental termination cases); In re
J.O.A., 283 S.W.3d 336, 341 (Tex. 2009). However, W.C.’s trial counsel was retained.
In August 2014, W.C. filed an affidavit of indigence and the trial court subsequently
granted him a court-appointed attorney. W.C.’s court-appointed attorney filed an original
answer on his behalf in August 2014. The record shows that another attorney filed an
appearance of counsel on W.C.’s behalf in July 2015, and represented him at trial. The second
trial counsel told the court at the beginning of trial that W.C. had retained him.
A parent who hires his own attorney in lieu of the attorney appointed by the court cannot
raise an ineffective assistance of counsel challenge to the parental termination order. See In re
V.G., No. 04-08-00522-CV, 2009 WL 2767040, at *12 (Tex. App.—San Antonio Aug. 31, 2009,
no pet.) (mem. op.) (citing Martin v. Martin, No. 04-04-00828-CV, 2005 WL 1552763, at *1
(Tex. App.—San Antonio July 6, 2005, no pet.) (mem. op.) (holding “no claim for ineffective
assistance of counsel lies in a civil case where counsel is retained”)); In re J.B., No. 07-14-
00187-CV, 2014 WL 5799616, at *5 (Tex. App.—Amarillo Nov. 6, 2014, no pet.) (mem. op.)
(citing In re V.G., 2009 WL 2767040, at *12). Consequently, we hold that W.C. cannot
challenge the termination order based on a claim that his retained counsel rendered ineffective
assistance. We overrule W.C.’s third issue.
MOTHER’S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
In her sole issue on appeal, C.C. argues that her trial counsel rendered ineffective
assistance of counsel. She also contends that her trial counsel’s performance was so deficient
that it was tantamount to having no counsel at all, triggering a presumption that it changed the
outcome of the case.
Standard of Review
An indigent parent is entitled to appointed counsel in a termination of parental rights
case, and that statutory right “embodies the right to effective counsel.” In re B.G., 317 S.W.3d
253-54. Ineffective assistance claims must be firmly founded in the record, and the record must
affirmatively show the alleged ineffectiveness. In re L.C.W., 411 S.W.3d 116, 127 (Tex. App.—
El Paso 2013, no pet.); see also Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d
4
608, 622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). When the record is silent
concerning the reasons for counsel’s actions, the reviewing court will not engage in speculation
to find ineffective assistance of counsel, and the appellant bears the burden of overcoming the
presumption that, under the circumstances, the challenged conduct might be considered sound
trial strategy. In re L.C.W., 411 S.W.3d at 127.
In reviewing claims of ineffective assistance of counsel, we consider all circumstances
surrounding the case and apply the Supreme Court’s two pronged test used in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In re M.S., 115 S.W.3d at
545. Under Strickland’s first prong, the parent must show that counsel’s performance was
deficient. See id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). This requires a
showing that counsel made errors so serious that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment. In re J.O.A., 283 S.W.3d at 342. Under the second prong,
the parent must show that the deficient performance prejudiced the defense. See In re M.S., 115
S.W.3d at 545. This requires a showing that counsel’s errors were so serious as to deprive the
parent of a fair trial, a trial whose result is reliable. See In re J.O.A., 283 S.W.3d at 342. To
establish prejudice, the parent must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. In re
V.V., 349 S.W.3d 548, 559 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694, 104 S. Ct. at 2068.
In conducting our review, we “must primarily focus on whether counsel performed in a
reasonably effective manner.” In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006). We give great
deference to counsel’s performance, “indulging a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance, including the possibility that
counsel’s actions are strategic.” Id. Challenged conduct constitutes ineffective assistance only
when it is “so outrageous that no competent attorney would have engaged in it.” Id. To be
successful in her ineffective assistance of counsel claim, C.C. must show that counsel’s
representation fell below an objective standard of reasonableness. See Strickland, 466 U.S. at
688, 104 S. Ct. at 2064; see also In re L.D.G., No. 12-11-00005-CV, 2012 WL 171888, at *1
(Tex. App.—Tyler Jan. 18, 2012, no pet.) (mem. op.). Failure to satisfy Strickland’s
requirements defeats an ineffectiveness challenge. See Walker, 312 S.W.3d at 623.
5
Analysis
In her brief, C.C. argues that her trial counsel failed to (1) provide any Wyoming child
protective services records, criminal records, community supervision records, or testimony from
any source to show that she had been rehabilitated, (2) provide any of her psychological or
counseling records, or (3) provide a defense to subsections (D) and (O) of Texas Family Code
Section 161.001(b)(1). Thus, she contends, she was constructively denied counsel because trial
counsel entirely failed to subject the Department’s case to meaningful adversarial testing. See
United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).
In Cronic, the Court identified three situations implicating the right to counsel that
involved circumstances so likely to prejudice the accused that the cost of litigating their effect in
a particular case is unjustified. Bell v. Cone, 535 U.S 685, 695, 122 S. Ct. 1843, 1850, 152 L.
Ed. 2d 914 (2002) (quoting Cronic, 466 U.S. at 658–59, 104 S. Ct. at 2046-47). These three
situations occur when (1) the accused is denied the presence of counsel at a critical stage of her
trial, (2) counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,
or (3) circumstances at trial are such that, although counsel is available to assist the accused
during trial, the likelihood that any lawyer, even a fully competent one, could provide effective
assistance is so small that a presumption of prejudice is appropriate without inquiry into the
actual conduct of the trial. Cronic, 466 U.S. at 659–60, 104 S. Ct. at 2047.
C.C. contends that Cronic applies because her trial counsel did not address the risk to
Z.C. by providing child protective services records, criminal records, community supervision
records, testimony, or any psychological or counseling records showing that she had been
rehabilitated and posed no risk to Z.C. She also argues that her trial counsel failed to subject the
Department’s case regarding subsections (D) and (O) of Texas Family Code Section
161.001(b)(1) to meaningful adversarial testing. Thus, she appears to argue that she does not
need to prove prejudice. However, the differences in the Strickland and Cronic standards are
not of degree, but of kind. Bell, 535 U.S. at 697, 122 S. Ct. at 1851. In other words, the
standards distinguish between shoddy representation and no defense at all. Childress v.
Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997). “[B]ad lawyering, regardless of how bad, does
not support” applying the Cronic standard. See McInerney v. Puckett, 919 F.2d 350, 353 (5th
Cir.1990). Accordingly, prejudice will be presumed only when the accused can establish that
counsel was not merely incompetent but inert. Childress, 103 F.3d at 1228. Here, C.C. does not
6
complain that she was denied counsel at a critical stage of her trial or that her trial counsel was
inert. Because C.C. complains of her trial counsel’s alleged errors, omissions, or strategic
decisions in her defense, i.e., incompetence, we decline to apply the Cronic standard to this case.
Moreover, it is C.C.’s burden to overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial strategy. See Strickland, 466 U.S. at 689,
104 S. Ct. at 2065; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Any allegation
of ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). But C.C. did not file a motion for new trial and call her trial counsel as a witness to
explain his reasoning for failing to provide certain records, testimony, or defenses. See Bone v.
State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (stating that defense counsel should be given
opportunity to explain actions before being condemned as unprofessional and incompetent); see
also Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d)
(holding that because appellant did not call his trial counsel during motion for new trial hearing
to give reasons for failure to investigate or present mitigating evidence, record does not support
ineffective assistance claim). When, as here, the record fails to show why counsel did not
provide certain records, testimony, or defenses, we cannot conclude that counsel’s performance
was deficient. See Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). Because
the record does not show deficient performance, we conclude that C.C. has failed to meet the
first prong of the Strickland test. See id.
C.C. also has failed to show that, but for counsel’s allegedly unprofessional errors, the
result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct.
at 2068; Tong, 25 S.W.3d at 712. C.C. does not explain in her brief how her trial counsel’s
alleged failures caused her harm. Instead, she requests that this court abate her appeal and order
the trial court to conduct a hearing to determine whether trial counsel’s actions or failures to
present a defense are meritorious. We decline to do so. See In re V.V.. 349 S.W.3d at 569-70
(Keyes, J., concurring in part, and dissenting in part).
Because C.C. failed to show that the result of the proceeding would have been different if
her trial counsel had provided certain records, testimony, or defenses, she has failed to meet the
second prong of the Strickland test. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong,
7
25 S.W.3d at 712. Therefore, even if she had met the first prong of Strickland, she still could
not prevail.
We overrule C.C.’s sole issue on appeal.
INDIAN CHILD WELFARE ACT
In our review of the record, we observed that in an adversary hearing report from CASA
to the court dated August 4, 2014, there was a statement that W.C. “refused to do the hair
follicle” test because he was “part Indian and [was not] allowed to cut his hair.” In a
permanency plan and progress report from the Department to the trial court dated January 5,
2015, the “box” indicating the child’s Native American status was checked. The report
explained the “Child’s possible American Indian child status reported by [W.C.], father, and is
yet to be determined.” The permanency plan and progress reports to the trial court dated May 1,
2015, and September 1, 2015, repeated the language quoted above. The record does not show
that the child’s Native American status was determined prior to trial, and the order of termination
makes no reference to the issue.
Congress passed the Indian Child Welfare Act (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, 109 S. Ct. 1597, 1599-
1600, 104 L. Ed. 2d 29 (1989); see also In re W.D.H., 43 S.W.3d 30, 34 (Tex. App–Houston
[14th Dist.] 2001, pet. denied). 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. 25 U.S.C.A. § 1912(a) (West, Lexis current through PL 114-143, approved Apr. 11,
2016); In re R.R., Jr., 294 S.W.3d 213, 217 (Tex. App.–Fort Worth 2009, no pet.). “Child
custody proceeding” means, and includes, foster care placement, termination of parental rights,
preadoptive placement, and adoptive placement. 25 U.S.C.A. § 1903(1) (West, Lexis current
through PL114-143, approved Apr. 11, 2016). 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.” 25 U.S.C.A. § 1903(4) (West, Lexis current through PL 114-143, approved Apr. 11,
8
2016). The ICWA, however, does not define what constitutes being a “member” or “being
eligible for membership.” See 25 U.S.C.A. § 1903(4). Each tribe has its own criteria for
determining tribe membership. See In re R.R., 294 S.W.3d at 217-18.
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. See BUREAU OF INDIAN
AFFAIRS GUIDELINES FOR STATE COURTS; INDIAN CHILD CUSTODY PROCEEDINGS (BIA
GUIDELINES), 44 FED. REG. 67,584 (Nov. 26, 1979). The Guidelines state that “[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.”
BIA GUIDELINES, 44 FED. REG. at 67,586. Specific instructions are provided in the Guidelines
for the determination of the status of an alleged Indian child. See 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. BIA
GUIDELINES, 44 FED. REG. at 67,586 (stating that “the court shall seek verification of the child’s
status”). Further, the Guidelines provide that “[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) Any party to the case . . . informs the court that the child is an Indian child. . . . (ii) Any 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.
Under the ICWA, an Indian tribe is entitled to notice of a custody proceeding involving
an Indian child. See 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.” 25 C.F.R. § 23.11 (Lexis current through Apr. 25, 2016 issue).
Section 23.11 also requires that the notice be sent to the “appropriate Regional Director” and the
Secretary of the Interior. Id. § 23.11(a), (b), (f). Upon receiving the notice, the Secretary of the
Interior or his designee is obliged 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. § 23.11(f).
A violation of the ICWA notice provisions may be cause for invalidation of the
termination proceedings at some later, distant point in time. See 25 U.S.C.A. § 1914 (West,
Lexis current through PL 114-143, approved Apr. 11, 2016) (providing that “[a]ny Indian child
9
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 act”); see also In re W.D.H., 43 S.W.3d
at 38-39 (recognizing parent of Indian child has standing to challenge adequacy of notice even
though tribe declined to join suit). Consequently, because the termination proceeding here may
ultimately result in the adoption of Z.C., strict compliance with the notice provisions of the
ICWA and the regulations implementing it in the Code of Federal Regulations is especially
important, or “the State could offer prospective adoptive parents no assurance this termination
and a subsequent adoption could not be invalidated.” See In re J.W., 498 N.W.2d 417, 419-22
(Iowa Ct. App.1993) (disapproved on other grounds by In re N.N.E., 752 N.E.2d 1 (Iowa 2008))
(recognizing that notice provisions of the ICWA are to be strictly construed and reversing order
terminating parental rights because of inadequate notice and remanding for new hearing after
proper notice).
As noted above, a statement in an adversary hearing report from CASA noted that W.C.
“refused to do the hair follicle” test because he was “part Indian and [was not] allowed to cut his
hair.” Moreover, three permanency plan and progress reports indicated that Z.C.’s father
reported that the child was of possible “American Indian status.” This was information
discovered by a state licensed agency involved in child protection services that suggested Z.C.
may be an Indian child, and it was sufficient to trigger the ICWA’s requirements for notification
and determination of Indian status. See In re J.J.C., 302 S.W.3d at 901 (holding that the trial
court had reason to believe that the children were Indian because DFPS discovered that their
maternal grandmother was alleged to be a member of the Chippewa Indian Nation); In re R.R.,
294 S.W.3d at 222 (holding that the trial court had reason to believe the children were Indian
when mother testified that her grandmother was a registered member of the Kiowa Indian
Nation). Therefore, the trial court was obligated to notify the Indian tribe or tribes for an inquiry
into the child’s Indian status. See In re R.R., 294 S.W.3d at 219 (noting that the Guidelines’
listed circumstances “shall trigger an inquiry by the court and petitioners”). The notice
provisions of the ICWA are mandatory. See BIA GUIDELINES, 44 FED. REG. at 67,586 (providing
that when a state court has reason to believe a child involved in a child custody proceeding is an
10
Indian, the court shall seek verification of the child’s status from either the BIA or the child’s
tribe).
CONCLUSION
Because the inquiry required by ICWA is necessary here, we abate this appeal and
remand the case to the trial court. Proper notice that complies with ICWA’s notice requisites
shall be provided, and then the trial court shall conduct a hearing to determine whether Z.C. is an
Indian child under the ICWA. See TEX. R. APP. P. 44.4 (providing that appellate court shall not
reverse or affirm judgment if trial court can correct erroneous failure to act, and authorizing
appellate court to direct trial court to correct erroneous failure to act and to then proceed as if
erroneous failure to act had not occurred). The trial court shall cause a record of the proceedings
to be prepared and make appropriate findings as to whether Z.C. is an Indian child. The trial
court also shall cause a supplemental clerk’s record (including any orders and findings resulting
from the ICWA hearing) to be filed with the clerk of this court. After we receive the
supplemental clerk’s record, this appeal will be reinstated.
If, after proper notice and hearing, the trial court has determined that Z.C. is not an Indian
child, we will issue a judgment affirming the trial court’s termination judgment regarding C.C.
and W.C. See TEX. R. APP. P. 43.2(a). If, after notice and hearing, the trial court determines that
Z.C. is an Indian child, we will issue a judgment reversing the trial court’s termination judgment,
and remanding the cause to the trial court for a new trial for C.C. and W.C. applying the ICWA.
See TEX. R. APP. P. 43.2(d); R.R., Jr., 294 S.W.3d at 238.
GREG NEELEY
Justice
Opinion delivered April 29, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
11
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
ABATEMENT ORDER
APRIL 29, 2016
NO. 12-15-00279-CV
IN THE INTEREST OF Z. C., A CHILD
Appeal from the 1st District Court
of San Augustine County, Texas (Tr.Ct.No. CV-14-9548)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
in the trial court below, it is ORDERED, ADJUDGED and DECREED by this court that this
appeal be abated and the cause remanded to the trial court with instructions to give proper
notification pursuant to the ICWA and determine Z.C.’s status as defined by ICWA and for
further proceedings in accordance with this opinion; and that this decision be certified to the
court below for observance.
It is THEREFORE ORDERED that the appeal be abated and
administratively removed from this court’s docket until the supplemental clerk’s record
containing the trial court’s order and findings is filed with the clerk of this court.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.