Here is the opinion in Choctaw Nation of Oklahoma v. Sewell (Tex. Ct. App.):
Texas Court of Appeals
Unpublished QEW Opinion out of Texas Court of Appeals
Here.
This is the second time recently a well-reasoned QEW case has been unreported, which means it can’t be used as precedent. The first was in Washington. In re K.S., 199 Wash.App. 1034 (2017). This one is out of the Texas Court of Appeals.
First, because I’ve been getting a lot of emails lately about foster parent issues, here are the witnesses who testified:
Only three witnesses testified at the termination hearing: S.P., R.C.P.’s foster parent, and Glendalys Mojica Gonzalez, the caseworker assigned to the case. The Department did not designate or proffer any of the witnesses as an expert, and the trial court did not make any rulings or findings regarding expert witnesses.
The Court then analyses the 2015 Guidelines (which it appears would have been governing this case since it was started in October 2016, i.e. initiated prior to December, 2016. 25 CFR 23.143) and concludes none of those people are QEWs.
The failure of the Department to produce the kind of competent evidence expressly required under the Act to support termination constitutes a failure of proof. See City of Keller,
168 S.W.3d at 812 (“[W]hen expert testimony is required, lay evidence . . . is legally insufficient.”); see also Martin v. State, 222 S.W.3d 532, 537 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (reversing involuntary-commitment order as unsupported by legally sufficient evidence where State
failed to introduce expert testimony as required by involuntary-commitment statute). Therefore, even viewing all of the evidence in the light most favorable to the verdict, because the record does not contain the statutorily required qualified-expert testimony, we conclude that the evidence is legally insufficient to meet the standard of proof under section 1912(f). See Jackson, 443 U.S. at 319; see also In re V.L.R., 507 S.W.3d at 796–97 (reversing judgment terminating parental rights because not supported by testimony of qualified expert witness as required under ICWA); Doty-Jabbaar, 19 S.W.3d at 877 (same).
Unpublished ICWA Case from Texas
Here. Probably need to do some training down in Texas:
On September 9, 2016, the [Texas] Department’s attorney sent proper notice to the Bureau of Indian Affairs. The [Texas] Department [of Family and Protective Services] also sent a letter dated March 16, 2017, to the Secretary of the Interior, ICWA, and to the Bureau of Indian Affairs, stating that W.C. testified that his Indian tribe was “maybe Lakota Sioux.” According to the Department’s letter, that tribe is not federally recognized as eligible for services or, more particularly, is not an “Indian tribe” pursuant to the ICWA. See 25 U.S.C.A. § 1903(8) (Westlaw through Pub. L. No. 115-22).
Emphasis added.
Texas COA Reinstates State Court Jurisdiction over Indian Child Custody Dispute
Here is the opinion in Villarreal v. Villarreal (Tex. Ct. App.):
ICWA Burden of Proof Case Out of Texas
Here. The case cites to the In re K.S. case here.
The court found a way to splice the burden of proof issue, finding that the beyond a reasonable doubt standard only applies to the finding that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child, not to the termination of parental rights.
Texas COA Issues Distubing ICWA Notice Opinion
Here is the opinion in In re C.T. & K.:
From pages 32-33:
Paul and Alice argue that the trial court “ha[d] reason to know that an Indian child” was involved in the case—and the notice and verification requirements of subsection 1912(a) were therefore applicable—because of Myra’s testimony that C.T. is “half-Indian.” The Department, for its part, agrees that the case should be abated and remanded to the trial court for a determination as to whether ICWA applies.
We disagree that the case should be remanded or abated, however, because we do not believe that the trial court “kn[e]w or ha[d] reason to know that an Indian child” was involved in the case. See id. The only evidence adduced regarding C.T.’s heritage was Myra’s statement that Myra is “half Black Foot” and that Alice is “half Cheyenne.” She did not state that either Alice, Paul, C.T., K.T., or herself were “members” of an Indian tribe, and she did not state that either child would be “eligible for membership” in an Indian tribe. See id. § 1903(4) (defining “Indian child” as a person under eighteen who either: (a) is a member of an Indian [55] tribe; or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe); see also In re Trever I., 973 A.2d 752, 758 (Me. 2009) (noting that “the party asserting the applicability of the ICWA has the burden to provide sufficient information to at least put the court or Department on notice that the child may be an ‘Indian child,’ within the meaning of the ICWA, and that further inquiry is necessary”); In re Arianna R.G., 657 N.W.2d 363, 370 (Wis. 2003) (holding that ICWA notice provisions did not apply because “the information available to the court was too vague for the court to have reason to know” that children were Indian where only evidence was father’s statement that his children have “Indian heritage” and that their “ancestry stems from the Ojibwa Tribe in Marinette, Wisconsin”).
Tribal Lawyer Libel Suit against Newspaper Survives Summary Judgment in Texas
Here is the opinion in ZYZY Corp. v. Hernandez (Tex. App.).
An excerpt from fairly amazing facts:
The lawsuit arises out of an article published in the News-Guide on April 27, 2006. The article reported on a hearing held April 26, 2006, before the Tribal District Court for the Kickapoo Traditional Tribe of Texas. That proceeding concerned a long-standing dispute about who were the legitimate and duly elected leaders of the tribe. During the hearing, the plaintiffs called Hernandez to testify about some of the facts surrounding the dispute. Hernandez, who is not a member of the tribe, testified she was hired to be legal counsel for the tribe in October 2002, and was on retainer at the time of the hearing. In response to a question about how much of her legal practice is devoted to work for the tribe, Hernandez testified, “I make roughly about ten percent of my income from the tribe.”
The day after the hearing, the article on the front page of the News-Guide contained the subheadline, “Gloria Hernandez admits she’s skimming 10% of casino profits off the top.” The article stated in part:
The most damning of testimony came when Hernandez admitted on the stand that she rakes off a 10% share of Lucky Eagle Casino profits for her services to the handful of remaining Kickapoo insurgents. This admission is a clear cut violation of National Indian Gaming Commission rules and regulations which require approval of any management contract by an outsider hired to oversee an Indian casino operation. And Hernandez leaves little doubt she intended to defraud to [sic] the federal governmental agency when she has never listed herself as anything but a legal representative to the Kickapoo Tribe of Texas.
Texas Court Decides ICWA Notice Case
Here is the opinion in In re J.J.C., where the court conditionally affirmed a trial court decision provided adequate notice is provided to relevant Indian tribes.
An excerpt:
We find that the trial court did have reason to believe that A.M.C. and J.J.C. were Indian children and that the trial court erred in failing to ensure that proper notice was given to the appropriate individuals and agencies. We abate this cause to the trial court as stated above. If, after notice and a hearing, the trial court determines that A.M.C. and J.J.C are not Indian children, then the termination order will be affirmed. If, after notice and a hearing, the trial court determines that A.M.C. and J.J .C are Indian children, then the termination judgment of the trial court will be reversed and the trial court must conduct a new trial applying the requirements and standards of the ICWA.
ICWA Notice Case Out of Texas
Here is the opinion in In re R.R., Jr. The Texas Court of Appeals (Fort Worth) remanded this case back to the trial court for purposes of providing proper notice to the tribes and/or the Secretary in accordance with ICWA. Apparently, a non-certified, non-registered letter addressed to “Mr. David Anderson, Assistant Secretary For Indian Affairs” is insufficient.
Turtle Talk 