in the Interest of R. J., R. I and R. I., Children ( 2020 )

NO. 12-20-00201-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE
R.J., R.I. AND R.I., § COUNTY COURT AT LAW NO. 1
CHILDREN § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
D.A. appeals the termination of her parental rights. In two issues, she contends the trial
court erred in failing to grant her motion for extension and failed to comply with the Indian Child
Welfare Act (ICWA). We affirm.
BACKGROUND
D.A. is the mother of R.I.1, R.I.2, and R.J. R.I.1’s and R.I.2’s father is R.I.3. R.J.’s
father is B.J. R.I.2 also had an alleged father, D.C., who was served but did not respond. On
August 6, 2019, the Department of Family and Protective Services (the Department) filed an
original petition for protection of R.I.1, R.I.2, and R.J., for conservatorship, and for termination
of D.A.’s parental rights. 1 The Department was appointed temporary managing conservator of
the children.
At the conclusion of a trial on the merits, the trial court found, by clear and convincing
evidence, that D.A.’s parental rights should be terminated. The trial court further found, by clear
and convincing evidence, that D.A. had engaged in one or more of the acts or omissions
necessary to support termination of her parental rights under subsections (D), (E), and (O) of
Texas Family Code Section 161.001(b)(1). The trial court also found that termination of the
1
The Department also sought and obtained termination of B.J.’s and R.I.3’s parental rights to the children.
However, they are not parties to this appeal.
1
parent-child relationship between R.I.1, R.I.2, R.J. and D.A. was in the best interest of the
children. Based on these findings, the trial court ordered that the parent-child relationship
between R.I.1, R.I.2, R.J. and D.A. be terminated. This appeal followed.
MOTION FOR EXTENSION
In her first issue, D.A. argues that the trial court abused its discretion in failing to grant
her motion for extension of the court’s jurisdiction.
Standard of Review and Applicable Law
We review a trial court’s decision to grant or deny an extension of the dismissal date
under an abuse of discretion standard. In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort
Worth 2012, pet. denied). When the Department files a suit requesting termination of the parent-
child relationship, the trial court must dismiss the suit on the first Monday after the first
anniversary of the date the court rendered a temporary order appointing the Department as
temporary managing conservator unless the court has commenced the trial on the merits or
granted an extension. See TEX. FAM. CODE ANN. § 263.401(a) (West Supp. 2020). A court may
not maintain the suit on the court’s docket after the one year dismissal date unless the court finds
that extraordinary circumstances necessitate the child’s remaining in the temporary managing
conservatorship of the Department and that continuing the appointment of the Department as
temporary managing conservator is in the best interest of the child. See id. § 263.401(b). If the
court makes those findings, the court may retain the suit on the court’s docket for a period not to
exceed 180 days after the one-year dismissal date. See id.
“The focus is on the needs of the child, whether extraordinary circumstances necessitate
the child remaining in the temporary custody of the Department, and whether continuing such is
in the best interest of the child.” In re A.J.M., 375 S.W.3d at 604. Failure to begin complying
with a family service plan until several weeks before trial court does constitute an extraordinary
circumstance when the requirements necessary to obtain the return of the child were known well
in advance of that time. In re O.R.F., 417 S.W.3d 24, 42 (Tex. App.—Texarkana 2013, pet.
denied). Further, when a parent, through her own choices, fails to comply with a service plan
and then requests an extension of the statutory dismissal date in order to complete the plan, the
trial court does not abuse its discretion by denying the extension. See In re K.P., No. 02-09-
00028-CV, 2009 WL 2462564, at *4 (Tex. App.—Fort Worth Aug. 13, 2009, no pet.) (mem.
2
op.). Actions that are considered to be the parent’s fault will generally not constitute
extraordinary circumstances. In re J.S.S., No. 10-19-00102-CV, 2019 WL 4511483, at *3 (Tex.
App.—Waco Sept. 18, 2019, pet. denied) (mem. op.).
Analysis
D.A. urges that the trial court abused its discretion in denying her motion for an
extension. She claims that her court-ordered inpatient treatment amounts to an “extraordinary
circumstance” because it prevented her from completing her family service plan. We disagree.
The evidence at the hearing showed that D.A. had a prior Department case in 2016 due to
her methamphetamine use. R.I.1 and R.I.2 were removed from her possession at the onset of
that case. D.A. participated in an inpatient treatment program for eight months during that case.
The children were returned to her, and the case was dismissed while she was residing at the
treatment center.
Lindsey Mason, a Department caseworker, testified that D.A. is not in compliance with
the current service plan and did not enter rehab until June 16, 2020. Mason testified that when
she spoke with D.A., D.A. related that she entered treatment because the trial court ordered her
to attend and failed to mention anything about changing her life. Mason further testified that
D.A. failed to obtain sobriety after participating in substance abuse counseling with two separate
counselors. In addition, all of D.A.’s hair follicle tests during the case were positive for
methamphetamine and amphetamine.
At the conclusion of the hearing, the trial court denied the motion and explained its
reasoning:
I don’t see as regarding [D.A.] where an extraordinary circumstance would be in this case. I
believe she just spent eight or nine months not doing services and now she’s saying whoops, it’s
the end of the case, let’s get it finished up. The comment that was made to the caseworker about
the only reason she’s in rehab is because the Judge ordered it says a whole lot. And I don’t have
any contradictory testimony to that.
Based on the record before the trial court, we conclude that D.A.’s inpatient treatment
was not an “extraordinary circumstance.” The evidence demonstrates that D.A. was aware of the
requirement she refrain from methamphetamine use to retain custody of her children before the
onset of the present case. In addition, it appears that D.A.’s failure to enter a rehabilitation
facility until several months into the case was a result of her own actions. See In re J.S.S., 2019
3
WL 4511483, at *3; In re K.P., 2009 WL 2462564, at *4. Therefore, the trial court did not
abuse its discretion by denying D.A.’s motion for extension of the one-year dismissal date. We
overrule D.A.’s first issue.
INDIAN CHILD WELFARE ACT
In her second issue, D.A. argues the trial court erred by failing to give proper notification
pursuant to the ICWA and failed to determine if the children are Indian children under the
ICWA.
Applicable Law
Congress passed the ICWA 2 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)
(Westlaw current through PL 116-188); 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) (Westlaw current through PL 116-188). “Foster care placement” means any action
removing an Indian child from its parent or Indian custodian for temporary placement in a foster
home or institution or the home of a guardian or conservator where the parent or Indian
custodian cannot have the child returned upon demand, but where parental rights have not been
terminated. Id. § 1903(1)(i). 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.
§ 1903(4). The ICWA, however, does not define what constitutes being a “member” or “being
2
In Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019), the Fifth Circuit reversed the federal district
court’s ruling that declared provisions of ICWA and the 2016 administrative rule implementing it unconstitutional.
Id. at 416. The Fifth Circuit found that ICWA was constitutional and, therefore, the 2016 administrative rule
implementing ICWA was valid. Id. at 441. On November 7, 2019, the Fifth Circuit granted rehearing en banc. See
Brackeen v. Bernhardt, 942 F.3d 287 (5th Cir. 2019).
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eligible for membership.” See id. § 1903(4). Each tribe has its own criteria for determining tribe
membership. See In re R.R., Jr., 294 S.W.3d at 217-18.
The Bureau of Indian Affairs created guidelines for state courts to use in Indian child
welfare proceedings implementing the ICWA. See Bureau of Indian Affairs Guidelines for State
Courts and agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146-02 (Feb. 25,
2015). 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.). “State courts, in every child custody proceeding, must ask whether the child is or could be
an Indian child and conduct an investigation into whether the child is an Indian child.” BIA
Guidelines, 80 Fed. Reg. at 10152. Further, the Guidelines provide that “[a]n agency or court
has reason to believe a child involved in a child custody proceeding is an Indian child if: (1) Any
party to the proceeding . . . informs the agency or court that the child is an Indian child [or] (2)
Any agency involved in child protection services or family support has discovered information
suggesting 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 (Westlaw current through Nov. 12, 2020 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), (c). 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(c). A violation
of the ICWA notice provisions may be cause for invalidation of custody or termination
proceedings at some later, distant point in time. See 25 U.S.C.A. § 1914 (Westlaw current
through PL 116-188) (providing that “[a]ny Indian child who is the subject of any action for
foster care placement or 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”); see also In re W.D.H., 43 S.W.3d at
5
38-9 (recognizing parent of Indian child has standing to challenge adequacy of notice even
though tribe declined to join suit).
Application
In the current case, the trial court relied on notices sent to the Indian Tribes during
the 2016 case when making its ICWA determination. D.A. contends this constitutes error
because the Department and the trial court had reason to know that Indian children were
involved because she claimed to be of Cherokee and Choctaw descent. We disagree.
In the 2016 case, D.A. claimed that R.I.1 had Cherokee, Choctaw, and Sioux ancestry.
Allegedly, the Sioux ancestry originated from R.I.1’s father, and the Cherokee and Choctaw
ancestry originated from D.A. And in the present case, D.A. again claimed to have Cherokee
and Choctaw ancestry. No mention of any other Native American heritage from the children’s
fathers was mentioned in the present case.
At trial, the Department notified the trial court that the Native American ancestry claims
in the present case are the same as the 2016 case because D.A. claimed both Cherokee and
Choctaw heritage in each case. The Department further reported that three Cherokee and three
Choctaw tribes were notified in the 2016 case, and five tribes sent denial letters. A denial letter
from the sixth tribe was obtained the morning of trial stating that the children were ineligible for
membership and were not considered Indian children under the ICWA.
Mason testified that the children were identified as having possible Cherokee and
Choctaw heritage. And she confirmed that the ICWA notice was sent to the required tribes
during the 2016 case. Mason testified that five tribes replied to those notices with letters denying
the children’s eligibility under the ICWA. Mason further identified the letter she received from
the sixth tribe stating that the children are not Indian children under the ICWA. Mason stated
that, to her knowledge, D.A.’s membership and eligibility have not changed since 2016:
Q. So since the 2016 case where -- where these tribes were notified, to your knowledge
has [D.A.] indicated to you that she’s joined a tribe or become a member of a tribe or been deemed
eligible to become a member of a tribe?
A. No, sir, not to my knowledge.
Q. And has she notified you that any of her family members have joined a tribe, been deemed
eligible for a tribe or anything of that nature since the 2016 case?
A. No, sir.
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No other evidence regarding changes in D.A.’s membership eligibility or status was admitted.
Mason testified that she was aware that the Department previously filed a notice of ICWA
compliance in the case. As a result, Mason asked the trial court to find that the ICWA does not
apply to R.I.1, R.I.2, and R.J.
At the conclusion of trial, the trial court found that the children were not Indian children
under ICWA:
In -- in looking at how it was all structured, there were numerous tribes in the 2016 case 3 and, I
believe, based on what I saw there was, approximately, 24 responses from various tribes in
the 2016 case which included the Apache tribes, the Sioux tribes, Cherokee, in fact all the
Cherokee and all the Choctaw tribe except the Jena tribe that was, you know, received in this
case.
And while I think the Department should have done better and should have done it by the book
I’m going to find that based on those responses that there is a -- at least a
good codal [sic] argument that there is no reason to believe there is Indian heritage because
it’s already been denied once.
...
So I am going to find that in this particular case that ICWA is not implicated based on
the fast [sic] that I do not believe that it is reasonable to assume that there is Indian heritage in this
particular case. That being said, I’m not discounting anything regarding the Department and their
attempts to -- to do that.
Additionally, at a later hearing, the trial court reaffirmed its ruling on the ICWA issue:
But as my findings previously, and I am going to make those findings again today, is that the
allegations in this particular case were that they were Cherokee and Choctaw heritage. All three
of the tribes for Choctaw and the three tribes for Cherokee have responded in the prior case that
there were not Indian heritage for these children with those tribes. Also, a significant number of
the other tribes, the Sioux and the Apache have also responded as having no Indian heritage.
Therefore, I do not find it reasonable to consider these children as Indian children. I will make a
finding that based on the evidence that we have, that the Indian Child Welfare Act is not going to
apply in this particular case because these children do not qualify as Indian children. And I will
make that specific finding.
The determination by a trial court that a child is not a member of that tribe, or is not
eligible for membership in that tribe, or that the biological parent is not a member of the tribe is
conclusive. In re A.W., 590 S.W.3d 68, 71 (Tex. App.—Texarkana 2019, pet. denied).
Furthermore, the ICWA does not apply simply based on an allegation of tribal ancestry; there
must be a political relationship with a federally recognized Indian Tribe. Indian Child Welfare
Act Proceedings, 81 Fed. Reg. 38778-01, 38792 (June 14, 2016). Because the tribes at issue had
previously determined that the children were not eligible for membership based on D.A.’s
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assertion of Native American heritage, and no evidence demonstrated that D.A.’s status with the
tribes had changed, the children are not Indian children under the ICWA. As a result, the trial
court properly found that R.I.1, R.I.2, and R.J. are not Indian children under the ICWA and the
notice requirements were not triggered by the new case. We overrule D.A.’s second issue.
DISPOSITION
Having overruled D.A.’s first and second issues, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered November 30, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 30, 2020
NO. 12-20-00201-CV
IN THE INTEREST OF R.J., R.I AND R.I., CHILDREN
Appeal from the County Court at Law No. 1
of Henderson County, Texas (Tr.Ct.No. FAM19-0571-CC1)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
9