In the Interest of K.S., a Child
448 S.W.3d 521
| Tex. App. | 2014Background
- Case: No. 12-14-00061-CV, Tex. App. Twelfth Dist. Tyler; CPS sought termination of parental rights of D.S. to K.S.
- K.S. (born March 14, 2011) and D.S. were Oklahoma City, Oklahoma residents at start of proceedings.
- K.S. was removed from D.S. after a Texas hospital neglectful supervision report.
- Cherokee Nation intervened early; Choctaw Nation potential affiliation discussed.
- Trial court terminated D.S.’s parental rights; opinion affirms termination with ICWA applicability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ICWA notice adequacy and tribal notice responsibilities | D.S. argues lack of proper Section 1912(a) notice | CPS/Department claims Cherokee Nation had actual notice; notices to Choctaw were insufficient | Issue 1 overruled; actual notice supported validity of termination |
| Preemption of Texas Family Code by ICWA | ICWA preempts state grounds, creating conflict | ICWA and family code can operate concurrently | Issue 2 overruled; harmony maintained; ICWA requirements satisfied |
| Trial by consent and ICWA grounds not pleaded | ICWA grounds not in pleadings | Evidence and proposed charges included ICWA; trial by consent | Issue 3 overruled; trial by consent; no reversible error |
| Broad-form jury submission versus ICWA-specific submissions | Special ICWA form required | Broad-form form proper under Rule 277, with ICWA instructions included | Issue 4 overruled; broad-form submission affirmed |
| Sufficiency of evidence under ICWA and family code | Active efforts and danger findings not adequately proven | Evidence supports active efforts and endangerment; expert testimony corroborates | Issue 6-7 (ICWA grounds) sustained; termination upheld under 161.001(1)(E) and ICWA §§ 1912(d),(f) |
Key Cases Cited
- In re J.J.C., 302 S.W.3d 896 (Tex. App.—Waco 2009) (ICWA applicability and notice issues in Indian child custody)
- In re R.R., Jr., 294 S.W.3d 213 (Tex. App.—Fort Worth 2009) (ICWA notice and Indian child status considerations)
- In re D.S.P., 480 N.W.2d 234 (Wis. 1992) (Concurrent state and ICWA protections in termination)
- In re N.J., 221 P.3d 1255 (Nev. 2009) (Actual notice may suffice when timing/contents are irregular)
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (Clear and convincing standard for termination; tolerates overlap with ICWA)