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In re M.M.W.

Court of Appeals Sixth Appellate District of Texas at Texarkana
Nov 8, 2017
No. 06-17-00076-CV (Tex. App. Nov. 8, 2017)

Opinion

No. 06-17-00076-CV No. 06-17-00080-CV

11-08-2017

IN THE INTEREST OF M.M.W. AND N.N.G., CHILDREN IN THE INTEREST OF N.N.G., A CHILD


On Appeal from the County Court at Law Lamar County, Texas
Trial Court No. 85116 Before Morriss, C.J., Moseley and Burgess, JJ. ORDER

As a result of a petition filed by the Texas Department of Family and Protective Services (the Department), the trial court terminated Mother's and Father's parental rights to M.M.W. and N.N.G. Mother and Father have both filed separate appeals from this order. In response, the Department had appropriately asked this Court to abate these appeals to allow the trial court the opportunity to comply with the Indian Child Welfare Act (ICWA). By our order dated October 16, 2017, we abated both cases so that the trial court could provide the proper notices as required by the ICWA. Because the trial court did not comply with statutory requirements, we must abate these appeals a second time.

Our previous order required the trial court to comply with Section 23.11 of the Code of Federal Regulations and the Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings (BIA Guidelines), 44 Fed. Reg. 67,584 (Nov. 26, 1979). Section 23.11 states:

Notice must include the requisite information identified in § 23.111, consistent with the confidentiality requirement in § 23.111(d)(6)(ix). Copies of these notices must be sent to the appropriate Regional Director listed in paragraphs (b)(1) through (12) of this section by registered or certified mail with return receipt requested or by personal delivery and must include the information required by § 23.111.
25 C.F.R. § 23.11 (West, current through Nov. 2, 2017).

In response to our order requiring the trial court to send the proper ICWA notices, the attorney representing the Department mailed a letter to the Bureau of Indian Affairs (the Bureau) at the address provided by Section 23.11(b)(4). However, that letter failed to include the information required by Section 23.111, which required the notice to include "[a]ll names known (including maiden, married, and former names or aliases) of the parents . . . ." 25 C.F.R. § 23.111(d) (West, current through Nov. 2, 2017). A review of our appellate record reveals that the Department had knowledge that Mother's last name was once Bacon, but did not supply that information to the Bureau in its notice.

The letter returned by the Bureau stated that insufficient information was provided to identify the Tribe for a referral. The letter further referred the Department, under a section labeled "Other Action," to the "BIA Website for Receipt of Designated Tribal Agents for Service of ICWA Notices." At a hearing held on October 23, 2017, the Department's witness testified that she had spoken with an employee of the Bureau that morning and that the Bureau employee indicated that she would research the matter further and would send another letter to the Department. The contents of that letter are not included in the supplemental record filed with this Court.

Section 23.11(c) states, "If . . . the Secretary is unable to verify that the child meets the criteria of an Indian child as defined in § 23.2, . . . the Secretary will so inform the court and state how much more time, if any, will be needed to complete the verification or the search. The Secretary will complete all research efforts, even if those efforts cannot be completed before the child-custody proceeding begins." 25 C.F.R. § 23.11(c).

Further, our previous order required the trial court to send notices to the proper Regional Director. The appropriate Regional Director is determined by application of the BIA Guidelines and the ICWA. The BIA Guidelines and Section 23.11 both refer to Section 23.111, which further states:

(e) If the identity or location of the child's parents, the child's Indian custodian, or the Tribes in which the Indian child is a member or eligible for membership cannot be ascertained, but there is reason to know the child is an Indian child, notice of the child-custody proceeding must be sent to the appropriate Bureau of Indian Affairs Regional Director (see www.bia.gov). To establish Tribal identity, as much information as is known regarding the child's direct lineal ancestors should be provided. The Bureau of Indian Affairs will not make a determination of Tribal membership but may, in some instances, be able to identify Tribes to contact.
25 C.F.R. § 23.111(e) (West, current through Nov. 2, 2017). According to the BIA website, notices sent from Lamar County pursuant to Section 23.111(e) must be sent to the Regional Director at both of the following offices:
Eastern Oklahoma Region
3100 W. Peak Boulevard
Muskogee, OK 74401
Phone: (918) 781-4608
Fax Number: (918) 781-4604

Southern Plains Region
US Indian Affairs Bureau - P.O. Box 368
132 E Broadway St
Anadarko, OK 73005
Phone: (405) 247-6673
Fax Number: (405) 247-5611

See the "Search by Zip" feature on the BIA website at https://www.bia.gov/regional-offices.

Failure to comply with the notice requirements of the ICWA provisions creates the danger of invalidation of parental-rights termination proceedings. Thus, because further inquiry required by the ICWA is necessary here, we abate the appeals in cause numbers 06-17-00076-CV and 06-17-00080-CV, for a second time, with the following instructions:

(1) No later than November 17, 2017, the trial court shall provide proper notice that complies with all of the ICWA's statutory requirements discussed herein;

(2) then the trial court shall conduct a hearing to determine whether M.M.W. and N.N.G. are Indian children under the ICWA;

(3) the trial court shall cause a record of the proceedings to be prepared and shall make appropriate findings as to whether M.M.W. and N.N.G. are Indian children;

(4) the reporter's record from the hearing shall be filed with this Court, and
(5) a supplemental clerk's record (including any orders and findings resulting from the ICWA hearing) shall be filed with this Court.
See TEX. R. APP. P. 44.4. Due to the accelerated nature of parental-rights termination proceedings, all matters relating to this order must be handled in an expedited fashion.

All appellate timetables are stayed and will resume on our receipt of the supplemental clerk's records and the reporter's records from the hearing mandated by this order.

IT IS SO ORDERED.

BY THE COURT Date: November 8, 2017


Summaries of

In re M.M.W.

Court of Appeals Sixth Appellate District of Texas at Texarkana
Nov 8, 2017
No. 06-17-00076-CV (Tex. App. Nov. 8, 2017)
Case details for

In re M.M.W.

Case Details

Full title:IN THE INTEREST OF M.M.W. AND N.N.G., CHILDREN IN THE INTEREST OF N.N.G.…

Court:Court of Appeals Sixth Appellate District of Texas at Texarkana

Date published: Nov 8, 2017

Citations

No. 06-17-00076-CV (Tex. App. Nov. 8, 2017)