In the Interest of C.C. and Z.C., children Appeal from County Court at Law No 2 of Angelina County (memorandum opinion)

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NO. 12-17-00114-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS § APPEAL FROM THE § COUNTY COURT AT LAW NO. 2 § ANGELINA COUNTY, TEXAS IN THE INTEREST OF C.C. AND Z.C., CHILDREN MEMORANDUM OPINION AND ABATEMENT ORDER B.C. appeals the termination of his parental rights. On appeal, he presents one issue. We abate this appeal and remand the case to the trial court with instructions. BACKGROUND R.A. is the mother and B.C. is the father of C.C. and Z.C.1 On October 7, 2015, the Department of Family and Protective Services (the Department) filed an original petition for protection of C.C. and Z.C., for conservatorship, and for termination of R.A.’s and B.C.’s parental rights. The Department was appointed temporary managing conservator of the children, and both parents were granted supervised visitation with the children. At the conclusion of the trial on the merits, the jury found, by clear and convincing evidence, that B.C. had engaged in one or more of the acts or omissions necessary to support termination of his parental rights under subsections (D), (E), (N), and (O) of Texas Family Code Section 161.001(b)(1). The jury also found that termination of the parent-child relationship between B.C., C.C., and Z.C. is in the children’s best interest. Based on these findings, the trial court ordered that the parent-child relationship between B.C., C.C., and Z.C. be terminated. This appeal followed. 1 R.A. appeals the termination of her parental rights to C.C. and Z.C. R.A.’s appellate counsel concluded that the appeal is frivolous and filed an Anders brief. We address R.A.’s appeal by a separate opinion. INDIAN CHILD WELFARE ACT In his sole issue on appeal, B.C. argues that the trial court erred by failing to give proper notification pursuant to the Indian Child Welfare Act and failing to determine whether the children were Indian children. In our review of the record, we observed that at an adversary hearing on October 19, 2015, B.C. reported that he had “Indian blood,” but that he was not an active member of a tribe. R.A. agreed. B.C. also stated that he knew that his family was “part of a reservation, the Azteca,” but he believed that it was “probably about four generations or – two or three generations of being part of the reservation.” In a status report from the Department to the trial court dated November 19, 2015, the “box” indicating each child’s Native American status was checked. The report explained that each “Child’s possible American Indian child status reported by [R.A.], and is yet to be determined.” The permanency reports to the trial court dated March 10, 2016, July 15, 2016, and December 30, 2016, however, indicated that both parents denied the children’s American Indian status. The record does not show the basis for the subsequent denial by both parents of the children’s American Indian status, or that the children’s American Indian 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) (Westlaw current through PL 115-40); 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 115-40). 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) (Westlaw current through PL 115-40). The ICWA, however, does not define what constitutes being a “member” or “being eligible for membership.” 2 See 25 U.S.C.A. § 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 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 (Westlaw current through June 22, 2017 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 the termination proceedings at some later, distant point in time. See 25 U.S.C.A. § 1914 (Westlaw current through PL 115-40) (providing that “[a]ny Indian child 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 3 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 30, 38-9 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (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 will likely result ultimately in the adoption of C.C. and 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 would 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, at an adversary hearing on October 19, 2015, B.C. reported that he had “Indian blood,” but that he was not an active member of a tribe. R.A. agreed. B.C. also stated that he knew that his family was “part of a reservation, the Azteca,” but he believed that it was “probably about four generations or – two or three generations of being part of the reservation.” In a status report from the Department to the trial court dated November 19, 2015, the “box” indicating each child’s Native American status was checked. The report explained that each “Child’s possible American Indian child status reported by [R.A.], and is yet to be determined.” This was information discovered by a state licensed agency involved in child protection services that suggested C.C. and Z.C. may be Indian children, 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., Jr., 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 children’s Indian status. See In re R.R., Jr., 294 S.W.3d at 219 (noting that the Guidelines listed circumstances that “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 4 proceeding is an Indian, the court shall seek verification of the child’s status from either the BIA or the child’s tribe). Accordingly, we sustain B.C.’s sole issue on appeal. Because the inquiry required by ICWA is necessary here, we must abate this appeal and remand this case to the trial court. Proper notice that complies with the statutory notice requisites shall be provided, and then the trial court shall conduct a hearing to determine whether C.C. and Z.C. are Indian children 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 C.C. and Z.C. are Indian children. 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 C.C. and Z.C. are not Indian children, we will issue a judgment affirming the trial court’s termination judgment. See TEX. R. APP. P. 43.2(a). If, after notice and hearing, the trial court determines that C.C. and Z.C. are Indian children, this court will issue a judgment reversing the trial court’s termination judgment, and remanding the cause to the trial court for a new trial applying the ICWA. See TEX. R. APP. P. 43.2(d); R.R., Jr., 294 S.W.3d at 238. UNCHALLENGED FINDINGS On appeal, B.C. does not argue that the evidence is insufficient to support the predicate grounds for termination or the finding that termination was in the best interest of the children. Section 161.001 of the family code permits a court to order termination of parental rights if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re J.M.T., 39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have engaged in any one of the acts or omissions itemized in the second subsection of the statute. TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2016); Green v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2016); In re J.M.T., 39 S.W.3d at 237. 5 Unchallenged findings of statutory predicate acts and of best interest are binding on an appellate court. See In re G.R., No. 07-16-00277-CV, 2016 WL 6242829, at *3 (Tex. App.— Amarillo Oct. 25, 2016, no pet.) (mem. op.); In re K.L.G., No. 14-09-00403-CV, 2009 WL 3295018, at *2 (Tex. App.—Houston [14th Dist.] Oct. 15, 2009, no pet.) (mem. op.) (because the predicate and best interest findings were not challenged, they were binding on the appellate court); see also IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997). Moreover, “[o]nly one predicate finding under section [161.001(b)(1)] is necessary to support a judgment of termination when there is also a finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Because B.C. does not challenge any of the predicate grounds for termination or the best interest finding, these findings are binding on this court. See In re G.R., 2016 WL 6242829, at *3; In re K.L.G., 2009 WL 3295018, at *2; IKB Indus. (Nigeria) Ltd., 938 S.W.2d at 445. Therefore, the unchallenged finding that termination is in the children’s best interest along with the unchallenged predicate grounds for termination suffice to support the trial court’s judgment. See Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 434 (Tex. App.—El Paso 2004, no pet.); In re M.F., No. 13-10-00248-CV, 2010 4901407, at *3 (Tex. App.—Corpus Christi Dec. 2, 2010, no pet.) (mem. op.). Accordingly, B.C. has waived any complaint about the sufficiency of the evidence to support these findings. DISPOSITION We abate this appeal and remand the case to the trial court so that notice may be sent in compliance with the ICWA, as outlined above. If, after notice and a hearing, the trial court determines that C.C. and Z.C. are not Indian children, then the termination judgment of the trial court is affirmed. If, after notice and a hearing, the trial court determines that C.C. and Z.C. are Indian children, then the termination judgment of the trial court is reversed, and the trial court shall conduct a new trial applying the ICWA. See R.R., Jr., 294 S.W.3d at 238. BRIAN HOYLE Justice Opinion delivered June 30, 2017. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (PUBLISH) 6 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS ABATEMENT ORDER JUNE 30, 2017 NO. 12-17-00114-CV IN THE INTEREST OF C.C. AND Z.C., CHILDREN Appeal from the County Court at Law No. 2 of Angelina County, Texas (Tr.Ct.No. CV-00638-15-10) 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 C.C. and 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. Brian Hoyle, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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