### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00676- CV

B. O. an d T. S ., Appellan ts

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 201 ST JUDICI AL DISTRICT NO. D-1 -F M- 11- 0004 25, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A p p e ll a n ts T

. S. ( h e r e in a f

te r “ F a th e r ” ) a n d B.O

. (her einaf

ter “Gr andmoth e r ” ) f

il e d th is

acc eler ated appea l from the district court’s final order termin at i n g Fa t her’ s pare ntal rig hts to his

m i n o r children T.S. and A.S. and denying Gra ndmother’s reque st to be named poss es s o ry

conser vator of her g randc hildren T.S. and A.S. Fa ther’s court-a ppointe d co u n s el filed a brief concluding that Fa ther’s appea l is frivolous and without merit. See A n der s v. Calif ornia , 386 U.S. 738 (1967) (cour t-appointed co u n s el wh o finds appea l to be wholly frivolous should so advise court and reque st permission to withdraw, wh i ch request should be acc ompanied by brief ref err ing to any

thing in rec ord that might arg uably support appea l); Taylor v. Texas Dep’ t of Protective & Regulatory Servs. , 160 S.W .3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied) (applying Anders proce dure in appea l from termination o f p ar en t al rig hts). I n four issues, Gra ndmother complains that the trial court err ed by : (1) c oncluding that the I ndian Child Welfar eAct did not apply to the case ; (2) excluding evidenc e of T.S.’s and A.S.’s Native Americ an heritag e;

(3) exclu d i n g ev i dence reg arding an ag ree ment betwee n the Texas Depa rtment of Family and Protective Service s (“the Depa rtment”) and T.S. and A.S.’ s mother; and (4) excluding evidenc e reg arding an agr eeme nt betwee n the Depa rtment and the f

ather of A.C., the half sister of T.S

. and A.S. We will affirm.

DISCUSSIO N Termi nation of Father’s Parental Ri ghts Fa ther’s court-a

ppointed counsel filed a brief concluding that his appea l is frivolous and without merit. The brief meets the requirements of Anders v. Calif ornia by prese nting a profe ssional evalua tion of the rec ord and demonstrating why there are no ar gu able g rounds to be advanc ed on appea l. See also Taylor , 160 S.W .3d at 646-47. Counsel has cer tified to this Court that he provided Fa ther with a copy of the Anders brief and a notice of his rig ht to examine the appellate

rec ord and f

ile a pro se brief. N o pro se br ief ha s been f iled. We have rev i ew ed t h e rec ord and counsel’s brief and ag ree that Fa ther’s appea l is frivolous and without merit. Finding nothing in the r ecor d that might ar g uably support an appe al,

we g rant counsel’s motion to withdraw and aff irm the order terminating Fa ther’s pare ntal rig hts to T.S. and A.S. Denial of Grandm other’s Request to be Nam ed Possessory Conservator

Be cause it is unnece ssary to our dispositi on of the issues prese nted in Gra ndmother’s appea l, we will not rec ount the proce dural or fac tual background of this case or discuss the evidenc e

2prese nted at trial. See Tex. R. App. P. 47.1. Rather, we will direc tly addre ss the four issues raised

by Gra ndmother. Application of the Indian Child Welfare Act Gra ndmother first complains that the trial court err ed by concluding that the I ndian Child Welfare Act (I CW A), 25 U.S.C.A. §§ 1901-1963 (West 2001), did not apply to this case . The I CW A was passed in response to “an alar mingly high perc entag e of I n d i an fa milies” who are “broke n up by the remova l, often unwar rante d, of their children from them by nontribal public and private ag encie s” and the “ala rming ly high perc entag e of such children” who wer e being “plac ed in non-I ndian foster and adoptive homes and instit utions.” Id. § 1901(4). The I CW A appli es to all
state child-custody proce eding s involving an I ndian child when the court knows or has rea son to know an I ndian child is involved. See id. § 1912(a)

. An “I ndian child” is define d as an “unmar ried person who is unde r ag e eig hteen and is e ither (a) a member of an I ndian tribe or (b) is e ligible for membership in an I n d i an t ri b e and is the biologica l child of a member of an I ndian tribe.” Id. § 1903(4). Among o t h er t h i n gs , the I CW A require s that the State meet a highe r burden of proof befor e the trial court may terminate the rela tionship betwee n an I ndian child and his pare nt. See id. § 1912(f) (“N o termination of par ental rig hts may be order ed in suc h proce eding in the absenc e of

a deter mination, supported by evidenc e beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the pare nt or I ndian custodian is likely to result in serious emotional or phy sical dama g e to the child.” ( Emphasis added.) ).

There is no dispute that T.S. and A.S. are neit h er m em b er s of an I ndian tribe nor elig ible for membership and there fore do not m ee t t h e I C W A’s definition of an “I ndian child.”
3Neve rtheless, Gra ndmother contends that the I CW A applies beca use Fa ther is a member of an I ndian tribe. She maintains that beca use one of the sta t ed p u rp o s es for the statute is “to promote the stability and secur ity of I ndian tribes and families,” see id. § 1902, the I CW A should apply to a proce eding involving an “I ndian family ” even if the child that is the subject of the proce eding does 1 not meet the def

inition of “I ndian child.” This issue involves statutory cons t ru ct i o n and prese nts a question of law that we revie w de novo. See State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006). Our primar y objective in statutory construction is to g ive eff ect to the leg islature’s intent. See id. We find that intent “first and fore most” in the statutory text

. Lexington Ins. Co. v. Strayhorn , 209 S.W .3d 83, 85 (Tex. 2006). “Where t ex t is clea

r, text is deter

minative of that intent.” Entergy Gulf States, Inc. v. Summers , 282 S.W .3d 433, 437 (Tex. 2009) (citing Shumake , 199 S.W .3d at 284; A l ex S h eshunoff Mgmt. Servs. v. Johnson , 209 S.W .3d 644, 651-51 (Tex. 2006)). Only when the statutory text is ambig uous do we resor

t to rules of construction or extrinsi c aids. Entergy Gulf States, Inc. , 282 S.W .3d at 437. Gra ndmother arg ues that the statute contains text ual support for her p o s ition; specific ally , she points to the definition of a “child custody proce eding ” contained in section 1903. That definition identifies four ty pes of proce eding s that are considere d “child custody proce eding s” for pur poses of the I CW A: (i) “foster car e place ment” which shall mean any action removing an I ndian child from its pare nt or I ndian custodian for temporar y place ment in a fost er home or instit ution or the home of a gu ar d i an o r conser vator wher e the pare nt or I ndian

The I CW A does not include a definition for the te rm “I ndian fa mily .” 1 4custodi an ca n n ot have the child returne d upon demand, but wher e pare ntal rig hts

have not be en ter

minated; (ii) “ter mination of pare ntal rig hts” which shall mean an y ac t i o n resulting in the termination of the pa

rent-c hild relationship; (i i i ) “pre adoptive place ment” which shall mean the temporar y place ment of an I ndian child in a foster home or instit ution afte r the termination of pare ntal rig hts, but prior to or in lieu of a doptive place ment; and (iv) “adoptive place ment” which shall mean the perma nent place ment of an I ndian child for a doption, including any action re sulting in a fina l decr ee of adoption.

I CW A § 1903(1). Gra

ndmother asser

ts that beca

use the term “I ndian child” is not used in subsection (i i ), t h e fa ct that no I ndian child is involved does not prec lude application of t he I CW A when the proce eding is one to te rminate pare ntal rig hts a nd, as is the case here , the ca se involves an “I ndian family .” This arg ument, howeve r, overlooks the plain expression of leg islative intent found in the statute’s definition of the term “par ent.” Section 1903(9) define s “par ent” as “any biologica l pare nt

or pare nts of an Indian child or any I ndian p erson who has lawfully adopted an Indian child , including adoptions under tribal law or custom.” Id

. § 1903(9) (empha sis added)

. Thus, by its own terms, the I CW A applies only when the rela tionship soug ht to be terminated is one betwee n an “I ndian child” and his biologica l or ad o p t i ve pare nt, provided the adoptive pare nt is an “I ndian” person. Her e, beca

use his c hildren are not “ I ndian children,” Fa ther is not a

“par ent” a s that term 2

The I CW A define s the term “I ndian” as “any person who is a member of an I ndian tribe, 2 or who is a

n Alaska Native and a member of a Reg ional Corporation as define d in se ction 1606 of Title 43.” 25 U.S.C.A. § 1903(3) ( West 2001). 5is define d in the statute. There fore , the I CW A does not apply to a proce eding to terminate his

rela tionship wit h his non-I ndian childre n. We overrule Gra ndmother’s fir st issue. 3

Exclusion of Evidence

Regarding T.S

and A.S .’s Native American Herit age I n her second issue, Gra

ndmother contends that the trial court err oneously excluded evidenc e of the children’ s Nativ e Am er i can heritag e. Gra ndmother arg ues that beca use the trial
court sustained an objection lodge d when counsel for Fa ther stated during opening arg ument that the evidenc e would show that Fa ther was of Native Americ an ance stry , there was a “chilling eff ect” on the presentation of evidence reg arding the children’s heritag e and there fo re t h e jury was deprived of i nformation about the children’s Native America n background. We are unable to conside r this arg ument, howeve r, bec ause ne ither F ather nor Gra ndmother pre serve d it for appe llate re view. To complain on appea l that the trial court err on eously excluded evidenc e, Gra ndmother m ust have offer ed the evidenc e during trial and obtained an adverse ruling from the trial court. Ulogo v. Vil lanueva , 177 S.W .3d 496, 501 (Tex. App.— Ho u s t o n [ 1 s t Dist.] 2005, no pet.). Whil e Gra

ndmother contends that ear ly ruling s by the trial court had a “chilling eff ect” on the prese ntatio n of evidenc e reg arding the children’ s heritag e, she does not identify any instance in

Numerous other courts have held that the I CW A is trig g ere d only when the child at 3 issue meets the statutory definition of “I ndian child.” See, e.g. , Michael J. , Jr

. v. Michae l J., Sr. , 7 P.3d 960, 962 (Ariz. App. 2000) (I CW A applies to “child custody proce eding ” involving an “I ndian child”); In re Maricopa Cnty. Juve nile Action No. A-25525 , 667 P.2d 228, 231 (Ariz. App. 1983) (pre requisites for application of I CW A are that proce eding is “child custody proce eding ” and child involved is “I ndian child”); In re Crystal K. , 276 Cal. Rptr. 619, 620 (Cal. App. 1990) (I CW A applicable to petition by I ndian child’s non-I n d i an mother to terminate pare ntal rig hts of child’s I ndian fathe r); In re B.R.B ., 381 N.W.2d 283, 284 (S.D. 1986) (I CW A require s initial deter mination by court that c hild is I ndian child). 6wh i ch the trial court ref used to admit such evidenc e when she offe red it. Consequently , t h er e i s nothing to complain of

on appea l. See Tex. R. App. P . 33.1(a) (1)( A). Moreove r, to the extent that the trial court’s ruling s may have cause d evidenc e to be excluded, Gra

ndmother failed to make the substance of the evidenc e known to the trial court throug h

an offe r of proof. See R.F. v. Texas Dep’ t of Family & Protective Servs. , 390 S.W .3d 63, 71 (Tex. App.—El Paso 2012, no pet.) (w hen ruling excludes evidenc e appellant must make offer of proof showing substance of evidenc e to prese rve err or). Whil e the revie wing court may sometimes be able
t o d i s ce rn from the rec ord the g ener al nature of the evidenc e and the propriety of the trial court ’s ruling , we cannot, without an offe r of proof, deter mine whether exclusion of t h e evidence was harmful. See Fletche r v. Minnesota Mining & Mfg. Co. , 57 S.W .3d 602, 608 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)

. Thus, when evidenc e is excluded by the trial court, the proponent of
t h e ev idence must prese rve the evidenc e in the rec ord in order to complain of the exclusion o n appea l. Id

. at 606; see Tex. R. Evid. 103(a) , (b). I f the party fails to make an offe r of proof, it must i n t ro d u ce the excluded testimony into the rec ord by a formal bill of exception. See Southwest Country Enters., Inc. v. Lucky Lady Oil Co. , 991 S.W .2d 490, 494-95 (Tex. App.—For t Worth 1999, pet. denied)

. Fa ilure to demonstrate the substance of the excluded evidenc e throug h an offe r of proof or bi ll of ex ception results in waiver of any err or i n its ex clusion. See id. at 494; see also Tex. R. App. P. 33.1(a)( 1)(B ).

I n the prese nt case , Gra

ndmother did not offe r the evidenc e she contends should have been admitted and conseque ntly did not obtain a ruling excluding that evidenc e. Nor did she make

7an offe r of proof or a bill of exception. Consequently , Gra ndmother has waived this complaint for revie w, and we overr

ule the sec ond issue. See Tex. R. Evi d. 103; Tex. R . App. P. 33.1(a)( 1)(B ).

Exclusion of Evidence Regarding Agreement Bet ween Children’s Mother and the Departm ent I n her third issue, Gra

ndmother asser

ts that the trial court err ed by ref using to admit evidenc e reg arding a mediate d settlement ag ree ment betwee n the Depa rtment and T.S. and A.S.’s mother. On appea l, Gra

ndmother contends that, by sustaining objections to evidenc e reg arding the ag ree ment, her “ability to introduce rele vant and pertinent evidenc e for the jury ’s revie w” was impacted. Ag ain, Gra

ndmother has waived any complaint reg arding the exclusion of evid en ce reg arding an ag ree ment betwe en the Depa rtment and the children’ s mother by failing to make an offe r of pr oof or bill of exception. We overr ule Gra ndmother’s third issue.

Exclusion of

Evidence Regarding Agreement Between Departm ent and Diffe rent Fath er I n her fourth issue, Gra

ndmother asser

ts that the trial court err ed by excluding evidenc e reg arding an ag ree ment betwee n the Depa rtment and the fathe r of T.S. and A.S.’s half sister A.C. Acc ording to Gra

ndmother, the Depa

rtment ag ree d that A.C.’s father could have “ce rtain rig hts” to his daug hter. Gra ndmother maintains that the Depa rtment took an “inconsistent position” with respe ct t o Fa ther by i n sisting t hat t ermination of his pare ntal rig hts was necessa ry to achie ve “per manenc e” for the children. Gra ndmother ar gu es that she should have been permitted to introduce e vidence of t he agr eeme nt with A.C.’s fathe r i n order to impeach a Depa rtment witness who testified that termination was require d. Such evidenc e would only constitute i m p ea chment evidenc e, howeve r, if Gra ndmother established sufficie nt simil arity betwee n A.C.’s father’s

8circ umstances with respe ct to A.C. and Fa ther’s circ umstances with respe ct to T.S. and A.S.

Gra ndmother made no such showing by offe r of pr oof or other

wise. Consequently , we a re una ble
to conclude that the trial court abuse d i t s discretion in ref using to admit into evidenc e, for impeachme nt purposes, the ag ree ment betwee n the Depa rtment and A.C.’s fathe r. We o v er rule Gra ndmother’s four

th issue.

CONCLUSION Having overr

uled Gra ndmother’s four issues, and having ag ree d that Fa ther’s appea l is frivolous and without merit, we a ffirm the tria l court’s orde r of ter mination.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Apr il 12, 2013

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