In re C.J.B.

681 S.W.3d 778

In the INTEREST OF C.J.B., a Child

In the Interest of T.A.B., a Child

NO. 14-23-00186-CV, NO. 14-23-00208-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed September 14, 2023

West Codenotes

Recognized as Preempted

Tex. Fam. Code Ann. §161.001 On Appeal from the 315th District Court, Harris County, Texas, Trial Court Cause Nos. 2021-01521J, 2021-01521J-B

Juliane Crow, Robert J. Hazeltine-Shedd, for Appellee.

Steven Burk Frazier, for Appellant.

Panel consists of Justices Jewell, Hassan, and Wilson

OPINION

Randy Wilson, Justice

In two appeals a father challenges judgments terminating the parent-child relationship between the father and his sons. The father raises issues regarding the Indian Child Welfare Act and an alleged discrepancy between docket-sheet renditions and the final judgment. Concluding that father has not shown any error that is reversible, we affirm both judgments.

I. Factual and Procedural Background

On September 28, 2021, four-year old, T.A.B. ("Thomas") was referred to his school nurse for a deep laceration on his right arm that had been concealed by a makeshift bandage.¹ The nurse also discovered other injuries including a bruise around Thomas’s eye. Thomas, his father ("Father"), and his mother ("Mother") reported that the arm injury, a four-inch laceration requiring stitches, was caused by Father throwing a dustpan in Thomas’s direction which accidentally hit Thomas. No one at Thomas’s school, the hospital, or at the Texas Department of Family and Protective Services ("Department") believed this account. Thomas and his brothers, including his younger brother C.J.B. ("Charles"), were immediately removed from their home.

The Department filed the underlying lawsuits on September 29, 2021, seeking emergency protection, conservatorship and termination of Father’s parental rights to his sons Charles and Thomas. In each case, the Miami Tribe of Oklahoma ("Miami Tribe") appeared in the trial court, filed a motion to intervene, and was treated by the trial court as a respondent. The Miami Tribe asserted that it is a federally recognized Indian Tribe and that Charles and Thomas are direct descendants of an enrolled member of the Miami Tribe and are eligible for enrollment or are enrolled with the Miami Tribe. In its live pleading in each case, the Department alleged that the Miami Tribe had been joined as a party and that the child in question was an Indian child.

The two cases were tried together to the bench. Father, incarcerated during the trial, was not present at trial but was represented by counsel. Though the Department did not specifically plead for termination under the Indian Child Welfare Act, title 25, section 1901, seq., of the United States Code ("ICWA") in its live petitions, no party objected to the Department’s pleadings in this regard or to the Department’s presentation of evidence at trial to support the termination of Father’s parental rights under the ICWA. The Department devoted a substantial part of its case to developing facts pertinent to the termination of Father’s parental rights under the ICWA.

Toni Rogers, a Department caseworker, testified about the Department’s efforts to place the children with members of the Miami Tribe, with which Father is affiliated. According to Rogers, Father and Mother submitted the names of two relatives at the beginning of the case. Rogers testified that one of those individuals had significant history with the Department so that relative could not be considered. She said the other relative was the children’s paternal aunt. Rogers testified the aunt’s name was resubmitted by Mother the week before her testimony.

Rogers said the other person submitted recently by the Mother is a family friend, but that friend declined placement. Rogers reported that the children’s paternal aunt told Rogers the day before her testimony that she would like to be considered. Rogers said she has not had time to submit paperwork but that the aunt will be considered.

Rogers testified that the Miami Tribe submitted preferential placements. Rogers said everyone on the list was considered, but that no one on the list was able to be a placement for the children.

Father’s twenty-one-year-old sister, Adeline testified about her relationship with the Miami Tribe. Adeline testified that she’s a commission-based digital artist and on-line entertainer. She said that she made $15,000 to $20,000 as income last year and that she raised $800 in an online campaign to take care of Thomas and Charles. She explained that when she was contacted regarding placement she was initially unavailable because she had just moved, but that she contacted the department as soon as she was alerted. Adeline does not have any children of her own, is not married, and lives by herself. Howell said she lives in a two-bedroom house with a den that is converted into a playroom.

Rich England, testified as an expert witness in the area of the Department’s compliance with the ICWA. No party objected to his qualifications to testify as an expert about the case or the subject matter of his testimony pertaining to the prevailing social and cultural standards of the Miami Tribe. England stated that the most important issue is that the children need to be protected. He testified that, in this case, the children were not in a good, safe environment prior to removal and that situation necessitated the Department’s removal to ensure their safety. England said he was very concerned by the cuts, bruising and other physical abuse, as well as Mother’s inability to be protective. He testified that it is imperative that the children have a supportive, nurturing and loving home. England described the situation in the home prior to removal as "very dangerous." England found the behaviors of the children to be consistent with children who have been abused or neglected. He said that the diagnosis of oppositional defiant disorder in one of the boys was notable because that disorder is often connected with a difficult home environment.

After his review of the case and his investigation, England produced a report with his recommendations which were admitted at trial. Regarding the continuing danger to the children, England concluded that the continued custody of the children by Mother and Father is likely to result in serious emotional or physical damage to the children. He said the efforts of the Department to work with Mother to keep the family together were diligent but were unsuccessful at preventing the breakup of this Indian family.

Regarding placement, England said Mother has put forward an aunt who is interested in placement, which would be in line With the ICWA for placement preferences. He said that it is in the children’s best interest to keep the children in the current placements until the aunt can be fully considered. England stated that the caregivers are continuing to work with both children’s behaviors, and it can be very tricky at times.

Corinna Campbell-Green, the Indian Child Welfare Coordinator for the Miami Tribe, testified regarding the tribe’s perspective on the Department’s efforts and the children’s well-being. Campbell-Green stated that the tribal family tree referred to Father’s family because he is the family member that draws lineage from the tribe. She stated that Father’s family was not very involved with the tribe prior to the case with the Department.

Nevertheless, Campbell-Green explained that the Miami Tribe has been involved in this case since the beginning. After reviewing England’s report and hearing his testimony, she explained that the tribe agrees with the assessment made by England. Campbell-Green explained that, based on the acquired documentation, England’s recommendations and assessment are appropriate and in line with the tribe’s preference.

Campbell-Green further testified that the tribe’s preferential placements have been taken into consideration. She testified that the Department worked diligently to try to accommodate the preferential placements. Campbell-Green stated that none of the preferential placements were appropriate so far. She said that the tribe also believes that the continued placement of the boys with their current caregivers is in their best interests.

According to Campbell-Green, the Department has made active efforts to prevent the breakdown of this Indian family. Campbell-Green testified that she believes the Department has gone "above and beyond" to try to accommodate a preferential placement, contacting kinship opportunities provided by the Miami Tribe and working through a family tree provided by the tribe. Campbell-Green said that the Department has also provided therapeutic services to the family and made sure that the relationship between the boys stays intact, despite the separate placements. She said the tribe would like to see a permanent placement for the boys to happen as soon as possible, preferably with the boys placed together.

Various other witnesses testified at trial including Charles’s foster mother, other Department caseworkers, law enforcement officers, and child advocate representatives. Mother also testified about her relationship with Father in the past, the current status of that relationship, her drug usage, Father’s drug problems, Father’s mental health problems, the criminal charges brought against Father, and Thomas’s various injuries discovered shortly before removal.

In each of the cases, the trial court signed a judgment terminating the parent-child relationship between Father and the child.² In each judgment the trial court made various findings under the Texas Family Code, including findings of various predicate grounds under Family Code section 161.001(b)(1) and findings that termination of the parent-child relationship between Father and the child is in the child’s best interest ("Section 161.001 Findings"). See Tex. Fam. Code Ann. 161.001(b) (West, Westlaw through 2023 R.S.). In each judgment ...