In the Interest of T.A.B., a Child v. the State of Texas

Concurring Opinion on Denial of En Banc Reconsideration filed January 30,
2024.

In The

Fourteenth Court of Appeals

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

IN THE INTEREST OF C.J.B., A CHILD
IN THE INTEREST OF T.A.B., A CHILD

On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause Nos. 2021-01521J, 2021-01521J-B

CONCURRING OPINION

Appellant Father filed a motion for en banc reconsideration asking this court
to reverse the trial court’s judgment terminating his parental rights. In seeking en
banc review Father asserts that the trial court’s findings under the Indian Child
Welfare Act (ICWA) were tainted by the inclusion of findings under the Family
Code. Father asserts that this court’s authority in In re W.D.H., 43 S.W.3d 30, 33–
38 (Tex. App.—Houston [14th Dist.] 2001, pet. denied), expressly prohibits the
disregard of erroneous findings in this case. I concur in the denial of Father’s motion
for en banc reconsideration because I disagree with this court’s holding in In re
W.D.H., and urge this court reverse our precedent in a proper case.

In each of the cases, the trial court signed a judgment terminating the parent-
child relationship between Father and the child.1 In each judgment the trial court
made findings under the Family Code, including findings of predicate grounds of
endangerment, and failure to follow a family service plan. See Tex. Fam. Code
161.001(b)(1)(D),(E), and (O). The trial court further found that termination of the
parent-child relationship between Father and the child was in the child’s best
interest. See Tex. Fam. Code 161.001(b)(2) (collectively, Family Code findings). In
each judgment the trial court also made findings under subsections (d) and (f) of
section 1912 of the ICWA (ICWA findings). Under section 1912(d), the trial court
found that “the Department made active efforts to provide remedial services and
rehabilitation programs designed to prevent the breakup of the Indian family and
these efforts proved unsuccessful.” Under section 1912(f), the trial court found,
“[t]hat evidence demonstrates a causal connection between the reasons for removal
and the likelihood that the continued custody of the [Child] is likely to result in
serious emotional or physical damage to the child.” In each judgment the trial court
appointed the Department as the child’s sole managing conservator.

Father timely appealed each judgment, and a divided panel of this court
affirmed the judgments of termination. In re C.J.B., No. 14-23-00186-CV & 14-23-
00208-CV, 2023 WL 5963385, at *7 (Tex. App.—Houston [14th Dist.] Sept. 14,
2023, no pet. h.). Two members of the panel held that under this court’s binding
precedent in In re W.D.H., the trial court erred by making the Family Code findings,

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Each judgment also terminated the parent-child relationship between Mother and the child, but
today’s appeals involve only appeals by Father.

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but that error was not reversible. Id. The dissent asserted that while it is “generally
appropriate for an appellate court to ignore a trial court’s erroneous findings,” it was
inappropriate to do so in this case because those erroneous findings are expressly
prohibited by this court’s precedent in In re W.D.H. Id. at *7 (Hassan, J., dissenting).

The Indian Child Welfare Act

In 1978, the United States Congress enacted the ICWA out of concern that
“an alarmingly high percentage of Indian families are broken up by the removal,
often unwarranted, of their children from them by nontribal public and private
agencies.” 25 U.S.C. §1901(4). Congress found that many of these children were
being “placed in non-Indian foster and adoptive homes and institutions,” and that
the states had contributed to the problem by “fail[ing] to recognize the essential tribal
relations of Indian people and the cultural and social standards prevailing in Indian
communities and families.” 25 U.S.C. §1901(4)(5); Haaland v. Brackeen, 599 U.S.
255, 265 (2023). This harmed not only Indian parents and children, but also Indian
tribes. Haaland, 599 U.S. at 265. As Congress put it, “there is no resource that is
more vital to the continued existence and integrity of Indian tribes than their
children.” 25 U.S.C. §1901(3); Haaland, 599 U.S. at 265.

The ICWA aims to keep Indian children connected to Indian families.
Haaland, 599 U.S. at 265. If an Indian child lives on a reservation, the ICWA grants
the tribal court exclusive jurisdiction over all child custody proceedings, including
adoptions and foster care proceedings. See 25 U.S.C. §1911(a); Haaland, 599 U.S.
at 265. For Indian children who do not live on a reservation, state and tribal courts
exercise concurrent jurisdiction, although the state court is sometimes required to
transfer the case to tribal court. See 25 U.S.C. §1911(b); Haaland, 599 U.S. at 265–
66. When a state court adjudicates the termination proceeding, the ICWA governs
“from start to finish.” Haaland, 599 U.S. at 266.

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Among the ICWA safeguards that apply to termination of parental rights
proceedings in state court is the requirement in section 1912(f) that “[n]o termination
of parental rights may be ordered in such proceeding in the absence of a
determination, supported by evidence beyond a reasonable doubt, including
testimony of qualified expert witnesses, that the continued custody of the child by
the parent or Indian custodian is likely to result in serious emotional or physical
damage to the child.” 25 U.S.C. §1912(f); Haaland, 599 U.S. at 266. The issue
Father raises is whether a trial court in a Texas termination proceeding to which the
ICWA applies can make the finding under section 1912(f) of the ICWA (Section
1912(f) finding) as well as the Family Code findings or whether a trial court should
make only the Section 1912(f) finding. See 25 U.S.C. §1912(f); Tex. Fam. Code
161.001(b).

In re W.D.H.

In In re W.D.H., a panel of this court held that the trial court erred in
terminating a parent’s rights in the absence of a Section 1912(f) finding. In re
W.D.H., 43 S.W.3d at 38. Two members of that panel went on to hold that the Family
Code provisions conflicted with the ICWA and were thus preempted by the ICWA.
Id. The majority of the panel concluded that “it was improper for the trial court to
base its findings regarding termination on the Family Code” and reversed the
judgment of termination remanding for proceedings consistent with the opinion. Id.
at 39. In a concurring opinion, the third member of the panel opined that the ICWA
and the Family Code should be construed in harmony. Id. at 40 (Wittig, J.,
concurring).

In In re W.D.H., the trial court terminated a father’s parental rights in a case
to which the ICWA applied. See In re W.D.H., 43 S.W.3d at 33. The trial court did
not make a Section 1912(f) finding; instead, the trial court made Family Code

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findings under the beyond-a-reasonable-doubt burden of proof, rather than the clear-
and-convincing-evidence burden of proof that applies to these findings under the
Family Code. See id. at 35. On appeal the father argued that the trial court erred by
not applying the standard for termination of parental rights in section 1912(f) of the
ICWA instead of the standard for termination of parental rights in section 161.001(b)
of the Family Code. See id. at 33. Two justices agreed with the father that the trial
court had committed this error. See id. The majority in In re W.D.H. reasoned:

[t]he requirement under the Family Code that termination of the
parent’s rights must be in the best interest of the child is based on the
“Anglo” standard for determining the best interest of the child. When
state courts make a determination regarding the best interest of the
child, “they obviously consider the factors from their own perspective,
that is, an Anglo–American point of view.” Therefore, we conclude that
it is not possible to comply with both the two-prong test of the Family
Code, which requires a determination of the best interest of the child
under the “Anglo” standard, and the ICWA, which views the best
interest of the Indian child in the context of maintaining the child’s
relationship with the Indian Tribe, culture, and family.

Id. at 37 (internal citations and footnote omitted).

Since the issuance of In re W.D.H., the decision that the ICWA preempts the
Family Code in parental termination cases has not been followed by this court and
has been rejected by four of our sister courts of appeals. See In re J.L.C., 582 S.W.3d
421, 429 (Tex. App.—Amarillo 2018, pet. denied); In re S.P., No. 03-17-00698-CV,
2018 WL 1220895, at *2 (Tex. App.—Austin Mar. 9, 2018, no pet.) (mem. op.); In
re G.C., No. 10-15-00128-CV, 2015 WL 4855888, at *1–2 (Tex. App.—Waco Aug.
13, 2015, no pet.) (mem. op.); In re K.S., 448 S.W.3d 521, 530–33 (Tex. App.—
Tyler 2014, pet. denied). The parties have not cited and research has not revealed (1)
an opinion from the Supreme Court of the United States, the Supreme Court of
Texas, or this court sitting en banc that addresses this issue; or (2) an intervening

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and material change in the statutory law.

Preemption

Under the Supremacy Clause of Article VI of the United States Constitution,
Congress has the power to preempt state law. R.R. Comm’n of Tex. v. Lone Star Gas
Co., 844 S.W.2d 679, 690 (Tex. 1992). State action may be preempted by express
language in a congressional enactment, by implication from the depth and breadth
of a congressional scheme that occupies the legislative field, or by implication
because of a conflict with a congressional enactment. Lorillard Tobacco Co. v.
Reilly, 533 U.S. 525, 541 (2001). When Congress legislates in a field traditionally
occupied by the states, such as family law, there is a presumption against
preemption. Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 151 (2001). We read
state law provisions in harmony with federal law unless the state law provisions
stand as an obstacle to the accomplishment and execution of congressional
objectives, i.e., the ICWA. See id.; see also Caller–Times Publ’g Co., Inc. v. Triad
Commc’n, Inc., 826 S.W.2d 576, 581 (Tex. 1992).

The ICWA establishes the “minimum Federal standards” for the removal and
placement of Indian children. 25 U.S.C. § 1902. Additionally, Section 1921 provides
that state law, rather than federal law, shall be applied if it “provides a higher
standard of protection” to the rights of the parent or Indian child custodian. See 25
U.S.C. § 1921. 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, 44 Fed. Reg. 67,584 (Nov. 26, 1979). The Guidelines direct that any
ambiguities between the ICWA and all regulations, guidelines, and state statutes
relating to the ICWA shall be resolved in favor of the result that is most consistent
with the ICWA’s preferences of keeping Indian children with their families or other

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Indian families. BIA Guidelines for State Courts; Indian Child Custody Proceedings,
44 Fed. Reg. at 67,586.

In enacting the ICWA, Congress found that the states often failed to recognize
the essential tribal relations of Indian people and the cultural and social standards
prevailing in Indian communities and families. See 25 U.S.C. § 1901(5).
Nevertheless, it did not expressly state that by enacting the ICWA it was preempting
state law concerning child custody proceedings or that it intended for the ICWA to
occupy the area of child custody proceedings completely. See In re J.J.C., 302
S.W.3d 896, 899 (Tex. App.—Waco 2009, no pet.). Accordingly, we must presume
that Congress did not intend to preempt the Family Code when it enacted the ICWA.
See Egelhoff, 532 U.S. at 151; Lone Star Gas Co., 844 S.W.2d at 691. In addressing
the preemption issue, we compare the Family Code provisions relating to the
termination of the parent-child relationship with the pertinent ICWA provisions to
determine whether the Family Code serves as an obstacle to the accomplishment and
execution of the objectives Congress sought to accomplish. See Egelhoff, 532 U.S.
at 151; Lone Star Gas Co., 844 S.W.2d at 691.

The ICWA and the Family Code address similar interests when a child is
removed from their home because both statutes seek to protect the best interests of
the child and to preserve family stability. See 25 U.S.C. § 1902; Tex. Fam. Code §§
263.3026(b), 263.307. The ICWA seeks to achieve this goal by requiring “active
efforts” to prevent the breakup of the Indian family and proof beyond a reasonable
doubt that “the continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child.” See 25 U.S.C.
§ 1912(d),(f). The Family Code seeks to achieve this goal by requiring “reasonable
efforts” to make it possible to return the child to the home and requiring clear and
convincing evidence that (1) the parent has engaged in conduct described in section

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161.001(b)(1) of the Family Code and that (2) termination of the parent-child
relationship is in the child’s best interest. See Tex. Fam. Code §§ 161.001,
262.001(b); see also Tex. Fam. Code § 263.307(b) (listing best interest factors).

Several courts in other states apply state termination grounds concurrently
with termination grounds under the ICWA. See In re K.S., 448 S.W.3d 521, 532
(Tex. App.—Tyler 2014, pet. denied) (collecting cases). The concurrent application
of the Family Code to proceedings involving Indian children provides additional
protection to parents of Indian children because it requires the party seeking
termination to prove state and federal grounds before the parent-child relationship
may be terminated. See 25 U.S.C. § 1921; see also In re K.S., 448 S.W.3d at 532.
When aggravated circumstances exist and reasonable efforts for reunification are not
required by the Family Code, the ICWA requirements must still be satisfied because
they provide a different degree of protection than state law. See 25 U.S.C. §§ 1914,
1921; Tex. Fam. Code § 262.2015.

The Family Code is not preempted each time an Indian child is involved in a
child custody proceeding in Texas, namely a suit involving the termination of the
parent-child relationship. In re K.S., 448 S.W.3d at 533; see, e.g., In re Denice F.,
658 A.2d 1070, 1072 (Me 1995) (“The state grounds for termination of parental
rights, unaffected by the ICWA, provide a supplemental degree of protection to
parents facing a petition for termination of parental rights.”).

In this case, because the trial court’s error in making Family Code findings
was not reversible, it is inappropriate to revisit our precedent in In re W.D.H. In an
appropriate case, I would overrule this court’s holding that the ICWA preempts the
Family Code.

With these additional thoughts, I concur in the court’s denial of Father’s
motion for en banc reconsideration.
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/s/ Jerry Zimmerer
Justice

En Banc Court consists of Chief Justice Christopher, and Justices Wise, Jewell,
Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Justice Zimmerer
authored the Concurring Opinion on Denial of En Banc Reconsideration.

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