## In the Court of Appeals Second Appellate District of Texas at Fo rt Worth

___________________________ No. 02

- 19

- 00235

- CV

_

__ ________________________

On Appeal from the 323rd District Court Tarra nt County, Texas Trial Court No. 323

- 107644

- 18
Before Sudderth, C.J.; Gabriel and Birdwell, JJ. Memorandum Opinion by J ustice Bi rdwell Chief Justice Sudderth and Justice Gabriel concur wit hout opinion. 

### I N THE 

### I NTEREST OF 

### Y.J., A 

### C HILD2 MEMORANDUM OPINION
T h is unusual appeal is fro m an order termin ating parental rights, but n either parent has appealed , t he Department of Family a nd P rotective Services (Department)

w as dismissed and has not a ppeal ed , and no appe aling pa rty challenge s the
termination . Instead, three intervenors

–– the Navajo Nation, t he Off ice of the Attorney General of the State of Texas ( AG), a nd two of the nonparents the trial
court named as joint man aging conservators for the child, C. B. and J.B. (the Bs)

– – app eal th e part o f the trial court ’ s order naming the Bs and the child ’ s Navajo

mater nal great

- aunt A .J. the c h ild ’ s joi n t ma nag ing conservators

. At trial and on appeal, the majority of the parties ’ argu ments h ave center ed o n the constitutionality of the f ederal In dian Child Welfare Act (ICWA) and its applicability to this case. If cons titutional , ICWA ap plies to certain aspects of this case because the child a t issue is Navajo through her biological mother (Mot her)

. See 25
U .S.C.A. § § 19 0 1

– 6 3

. At the heart of the di spute is whether ICWA ’ s post

- termination placement preferences

–– which favor placement of an Indian child wit h Indian
families

–– co ntrol, or whether th e trial court should app ly s olely Texa s law regardi ng the child ’ s best interest

. Id. § 1915 ( manda ti ng that Indian child be placed in a preadoptive or adoptive placement with Indian relatives, the ch ild ’ s t ribe, or any other Indian family absent good caus e not to do so ) ; Tex . Fam. Code Ann. § 1 53.002 ( “ The
best interest o f the child shall always be the pri mary consid eration of the court in determining the issues of conservatorship and possession of an d access to the child

. ” ).3 T he Navajo Nation contend s tha t IC WA is cons titutional and mandates pl acing
the child solely with A. J. 1 The AG and the Bs claim t hat ICWA is u nconstitutional
under both the U n ited States and T e xas Cons titutions, that it does not p re

- empt Texa s law and the refore cannot be applied to the se proceedings, and that the trial

court abused its discretion unde r Texas law by naming A.J. as on e of the c h il d ’ s join t
manag ing conservator s along with the Bs

. The trial judge purported not to dete rmine ICWA ’ s constitutionality u nder the
United S t at es C onstitution . Instead, he held that even if ICWA does not violate th e U nited States Constitution, it ne ver the less does not apply to this proceeding because (1) ICWA v iolates the anticommandeering doctr ine and therefore cannot validly pre

empt Tex as law and (2) F amily Code Sec tion 152.104 , which t he judge con cluded attempts to engra ft ICWA into Texas law , v iolates the Texas constitu tion

. After considering the record and procedural posture of this case

–– t aking into
account the ult ra

- accelerated nature of this appeal

–– we conclude we need not decide

a t this time whethe r IC WA is constitutional ; regard less of I CWA ’ s appl ic ation , the
trial court committed reversible error requ iring a new trial on conse rvator shi p . We
therefore reverse only the part of the trial court ’ s o rder naming the Bs and A.J. joint

ma n ag ing conserva tor s f or the child, and we remand t he case f o r a new trial on that
issue

.

1 Alterna tively, the Navajo Nati on argues that i f ICWA doe s not apply, the trial
co urt did not abuse its d iscretion by naming A.J. a joint managing conservator along with the Bs

.4 Pretrial F a ctual and Proced u r al Background
Removal and i nitia l p lacement e fforts
O n June 13, 2018, t he Departm ent filed a petition seeking con serv a tor ship of Y.J. or termination of h e r parents ’ rights because Y.J. h ad test ed positive for

ma rijuana , amphetamines , and methamphetamine s at b irth

. In the attached affidavit, a
De partm ent casew orker averred that Mother had told Texas C h ild P rotective S e rvices (CPS) workers t h at s he is a membe r of the Na vajo trib e an d that the workers had

contacte d the tribe to seek N avajo tr ib al m embers for foster placement

. Mother
named more than on e man as a possible father ; at least one of those men requested
DNA testin g and was excluded a s Y.J. ’ s biologica l fath er . T he Department alleged
that it had atte mpted to conta ct some of M other ’ s suggested placements, but non e

were suitable. It also alleged that Mother had an ex tensive history with New Me xico
CPS , that s even of her other childr en ha d be en remov ed fro m her care , and that “ the
Tribal Co uncil ” had place d fou r of thos e chi ldren with rel atives

. The cas ewo rk er stated further in the affidavit that one of Mother ’ s other children had been removed
in Texas when the maternal gr andmoth er

–– who a l legedly had a New Mexico CPS history and with whom Mother ha d left the chil d

–– had t este d pos itive for methamp hetamin e use . T h e affidavit also s ta ted that t he Na vajo Nat ion was “ working
to locate a p otentia l Navajo foste r home for placement. ”
An associa te j udg e signed an ord er na ming the Department Y.J. ’ s temporary sole managing conservator
.5 Mother waived service of cit ation

. A fter the sta tutor y t emp orar y adversary hearing, see Tex. Fam

. Code Ann. § 262.201 , the tr ial court orde red Mothe r and the
child ’ s al leged fat hers t o s ubmit the Section 26 1. 307 2 Child Placement Resour ces Form and specifically found, “ the Departme nt
. . . does not have the option of placing
the child with a re lative [ or ] ot her designated c aregiver. ” The or der also noted th at the

“ inquiry regar ding the chi ld or family ’ s po s sible Indian ancestry [was] not complete
du e to ex parte proceedings or si milar circumstances. ” The Department placed Y

. J

. in

a no n

- Indian foster home. Four days after th e adve rsary hea ring, the Navajo Nation sent a let ter stating

t hat Y .J. wa s eligible for “ ICWA[] service ” and that t he Navajo Natio n would assign

a n ICWA so cial w orker to the case to coordinate servic es with th e Department.
I dentifi cation of first IC WA

- com pliant ho me Although a caseworker noted i n the c hild ’ s Ju ne 2018 service plan, “ Worker will engage with the Navajo Nation to d iscuss po ssible pl acements , ” she also stated
that t he Navajo N ation had not c on tacted the Departm ent about what it could d o to
preserv e the child ’ s heritage

. In a July 201 8 statu s report, a CPS s pecialis t told th e tri al
court th at the Na vajo Nation had identified an ICWA

- co mpliant home as a p ossible placement

.

2 See Tex. Fam. Cod e Ann. § 261.307 (a)(2) (describing form ’ s contents , includ ing instru ction tha t pare nt lis t at lea st thre e persons who co uld be relative caregi vers or designated caregivers) , § 264.751 (definin g types of caregiver s).6 Around the s ame time, the D epartm ent file d a M otion for Expedited
Placement Unde r the Inter state Compa ct for the Placemen t of C h ildren (ICPC) , 3 in

w hich it sought an e xpedite d placement of the child with a Colorado family identified by the Navajo Nation. The Navajo Nation h ad also sent t he Department a “ favorable Navajo Adoption H o me Study ” on the fa mily. T h e nine

- page, deta iled repor t discusses the s ui tability of the co uple and the man ’ s Nava jo heritage and family ties

. It
further note s that al though the man had a “ finding ” on an A r izona background check,
the offense was over twenty y ears old (i .e., when he was twenty

- one o r younger ) and his lifesty le had changed for the better. The trial court approved the placement in late July 2018 a n d ordered the
D epartment to e xp edite its compliance with the ICPC to effectuate the placement

. But the Department ’ s attempt s to co mply with t h e ICPC for this pl acemen t were
rep eatedly rejected for administrative reasons , such as missing records an d lack of a

soc ial security n umber for Y.J. After a second failed atte m pt i n Oct ober 2018 , the Departm ent stopped trying to comply wi th the trial cour t ’ s or der be cause, by tha t time, a Texas federal judge had held ICWA un constitutional in a case in which the
S t ate of Texas is a party. See Brackeen v. Zinke , 338 F. Supp. 3d 51 4 , 536

– 46 (N.D. Tex.

3 See id. §§ 162.101

– .10 7 ( adopting t he I CPC, by which st ates cooperate to plac e children a cross st ate lines wit h the goa l o f plac ing chi ldren “ in a suitable envi ronment and with pers ons or institutions having appropriate qualifications and fac ilities ” while giving aut ho rities in the state wh ere the chi ld reside s and the state where the child is to be p laced an adeq ua te opp o rtu nity a nd the necessary i nformation to evaluat e the placeme n t ’ s s u itability ).7 2018) , rev ’ d

, 937 F.3d 406 (5 th Cir. 2019 ), reh ’ g en ba nc granted , 942 F. 3d 287 (5 t h Cir. 2019)

. The De partment never placed Y.J. with the Colorado family, 4 and she stayed
wit h her Te x as, non

- ICWA

- compliant fost er placement

. Int e rvention s re lated to Y.J. ’ s p lacement
In late No ve mber 2 018 , t he N ava jo Nation inte rvened in the Departm e n t ’ s suit
and immediately sought removal of the case to a tribal court under ICWA

. The Bs, who by that ti me had adopted Y.J. ’ s three

- year

- old half sibling Alan , 5 a l so intervened seeking te rmina tio n of Y.J. ’ s parent s ’ rights , ado ption of Y.J., and a pp ointment as Y.J. ’ s permanent managing conservator s . The Bs , along with Mother, 6 opposed

rem oval of the case to a tribal court. T he Navajo Nation o pposed placement of Y.J

.

w

ith th e B s. After the Bs int er vened, Mother signed an affidavit that was filed in the clerk ’ s record ; the affida v i t contains a certificate of service from Mother ’ s a ppointed counsel

. In the affidavit, Mother asked the t rial court to place Y.J. with the Bs “ as s oon as po ssible . . . [t o] allow her to be placed with her sibl ing (who is al so a Navaj o

4 The De partment began recon sidering thi s fa mily in January 2019 , and they were approved in F ebru ary 2019, but by that time the Navajo Nation had n otified the Departmen t abou t A .J. , who as a fa mily mem ber is a preferred placement under ICW A

.

5 Alan is a pseudonym. See Tex. Fam. Co de Ann. § 109.002(d). Mother has seven other childre n, but Alan is the c losest in age to Y.J. Because Y.J

. ’ s fat her i s unkno wn, we r efer to al l of M other ’ s other children as hal f siblings

.

6 T h e Departm ent had lost track of Mot her , but the Bs found her in the Tarrant C ounty Jail

. Mot her ’ s appointe d counsel fil ed the objection to removal to tr ibal cour t.8 m ember). ” Mother averred tha t placement with the Bs allowed Y.J. “ rea sonable
p roximity to [Mother ] , her home, [and] ext ended family and siblings. ” Mo t her also signe d a Section 261.307 form naming the Bs as “ relatives or cl ose fam i ly fr iends ”
wh o could ta ke c are of Y

. J.
O n December 3, 2018, t he Fifth Circuit Cou rt of App eal s stayed enforcement

o f the Northern D istrict trial judge ’ s order determining that ICWA i s unconstitutional.
Later that month , the Navajo Nation filed a Motion for Placement of the
C h ild, urgi ng the tr ia l court to place Y.J. with the Colorado family t hat the Navajo
Nation h ad originally identified and complaining that the Departme nt had not

co mplie d with the J uly 2018 order requiring it to do so

. The Bs responded by movin g

to have Y.J. placed with the m. T hey also opposed the Navajo Natio n ’ s motion , arguing tha t if ICWA d o es not a pply , Te xas law favor s placement with them because they ha d adopted Alan

. Cf. 40 Tex . Admin

. Code § 700.1 309(3 ) ( s etting forth fa ctors De partm ent consi ders in placing children in s ubstitu te care and inc luding as a factor
that “ [s] iblings removed from t heir home should be placed together unless such placement would be contrary to the safety or we ll

- being of any of t he siblin gs ” )

. They

a rgued altern atively that good cause existed to depart from ICWA ’ s plac ement
pre ferences

. Thus began a cour se of b riefing in the trial court on ICWA ’ s constitutionality , with the Bs cha llenging its constitutionality and the Navajo Na tion ad vocating it s9 constitu tionality

. The AG filed an amicus curia e brie f i n support of the Bs , challenging
the cons titutionality of ICWA on the same grounds and also urging placeme nt of Y.J.
with the Bs

. In January 2 019, t he Navajo Nati on amende d it s place me nt r equest and ins tead
moved to h ave Y

. J

. placed with Mo ther ’ s gr eat

- aunt A.J.

–– a Navajo w ho lives on the
reservation in A r izona near Y .J. ’ s four oldest half siblings , 7 who live with another great

- aunt

–– and , a lternativel y, with t he Colo ra do couple

. T h e N ava jo Nat ion also
moved t o dismiss th e Bs ’ i nt ervention for lack of standing

. The trial court denied that
motion

. In March 2019, the trial court i ssued a ruling on ICWA ’ s applicability, making
the fol lowing findings:
The C our t acknowledges multiple clai ms under the Unit ed States C onstituti on, b ut is providing deference to the Uni ted States Court of Appeals for the Fifth Circuit Stay Pending Appeal d ated December 3, 2018, and conscientiously refraining from ruling on those m att ers in this order of the cou rt. The Court fi nds

. . . T exas Fami ly Co de §152.104(a) to be in violation of Article I, Section 1 of the Texas Constitution and inapplicable to the p roceedings in this matter.
The Court finds

. . . Texa s Family Code § 152.10 4(a ) to be in violation of Arti cle I, Section 3 of the Te xas Const ituti on and inapplicable to the proceedin gs in this matter.

7 Alth oug h Moth er ’ s ri ght s to t hese half siblin gs have not been terminated , sh e does not see the m.10 The Court finds

. . . Texas Family Code § 1 52.104(a) t o be in violation of Article I, Section 3a of the Texa s Constitution and ina ppl icable to the proceedings in this matter.
T he Court finds

. . . Te xas Family Code § 152.104(a) to be i n violation of Article I, Section 19 of the Texas Constitution and inapplic able to the proceedings in this matter.
The Court fin ds

. . . Texas Family C ode § 1 52.104(a) to be in viola tion of Article I, Sect ion 29 of the Texas Constitution and inapplicable to the proceedings in this matter. T h e court also held,
The C ourt, having reviewed the Motion to Declare I CW A Inapp licable as Unconstitut ion al, any responses and reply thereto, the ev idence p resented, th e pleadings on file, the arguments of the parties, and the applicable law, is of the opinion that the Motion to De clar e I CW A Inapplicable as Unconstitutional should be GRANTED

. IT IS HEREBY OR DERED that Texas Family Code 152.104, is un constitu tional an d i napplicable to these proceedings. Despite this ru ling, neither the Bs nor the Department moved to strike the Navajo Nation ’ s intervention

. Final trial was set for May 3, 2019

. Al tho ugh A.J. intervened before f inal trial ,
t he trial c ourt dism is sed her inte r vention petit ion for lack of standing

. 8
A little less than a month be fore trial , Mother signed a v o luntary affidavit of relinquish me nt of her parental rights ; in it, sh e designated the Department as Y.J. ’ s

8 A.J. ’ s petition in intervention stated “ that placement with her would provide the child access to the four sibli ngs an d the child ’ s matern al g ran dmother

. ” [Emphasi s a dde d.] B ecause the evidence showed that in Navajo society older mater nal relatives are re ferred to as grandmothers , it is unclear whether she was referring to herself or to Y.J. ’ s actual mater nal grand m other.11 managing conservator an d s tated that she preferre d that Y .J. be placed wi th the Bs for adoption.
At tri al, the Department , the N avajo Na tion, and the Bs all supported
termination of Y .J. ’ s parents ’ r ights and appointment of the Department as Y .J. ’ s permanent manag in g con serv ator
. The Department and the Navajo Natio n recommended that Y.J. be placed with A.J., 9 but the Bs advocated placing Y .J. with them and asked to be named possessory conservators so that th e Department wo uld not place Y.J. wit h A.J. after being name d permane nt man aging conservator. The t rial

cou rt or dered on the record that Mother ’ s and all alleged fathers ’ ri ghts be terminated , but instead of naming the Department Y.J. ’ s permanent manag in g conse rvator, the
tri al court named the Bs and A.J. join t man ag ing con servators and designated the Bs

as the pr i m ary persons to designate Y. J. ’ s residence, so long as Y.J. was living within

9 The Depar tme nt ’ s recomme n datio n was different than the AG ’ s amicus recommen dation

. T h e record does not indicate why the se two Stat e agencies disagreed o n the pr oper placement for Y.J., but the record does show that the Departm ent had dealt with th e Bs in connection wi t h Alan ’ s ad o ption and t hat Department workers were aware of the Bs whe n Y.J. came into care because of the federal court litigation

. Y.J. ’ s caseworker could not explain why the De partmen t never considered the Bs even for a tem porary p l acement bec a us e o ther De p artm e nt wor kers made that decision; she admitte d the Depar tment did not follow it s own policy about placing rem o ved children in care with sib lings. Ad ditionally, C.B. testified that he had asked Y.J. ’ s casewor ker

–– also A la n ’ s c ase w o rker

–– on th e dat e the D epartm ent re moved Y.J. from Mot her ’ s care whether she knew anything abo ut Y.J. ’ s being in care, and s he told them she di d not know and said, “ [I]f there was a baby in care, I think I would know about it. ” The c a seworke r at first did no t admit that s he had tal ked to C.B., but w h en gi ven the date of the phone call, she explained, “ I beli eve at that time I didn ’ t feel comf ortable with giving him any information of that case ” because she coul d not disclose a child ’ s persona l information t o a nonpar ty.12 two states of Arizon a (including Texas). The trial co urt stated its in tention to trea t the
Bs and A. J. as i f they were divorced parents re siding more than 100 mi les apart, but

w

it h a sta ir

- ste p schedule for A.J. ’ s possession, beginning with one week in sum mer 2019, two weeks in summer 2020, and so on until Y.J. turned five , when A.J. would have extended summer possession

. The t ria l court dismissed the Department from
the suit

. 10
Aft er t rial, the A G also intervened in the s uit and fi led a motion for new trial. The AG continued to support placement of Y.J. with the Bs.
The trial j udge di d not s ign a n order of term ination until almost two months

a fter tria l. The or der is consistent wit h the trial judg e ’ s ruling on the record and provides a detailed possession schedule, which until 2023 gives A.J. exclusive possession of Y.J. only during the stair

- stepped weeks in the su mm e r . B eginning in
20 23, when Y.J. turns five, the ord er p rovides for possession by A. J. one we ekend each month, o ne week eve ry sp ring , and extended summer possession. T h e order provides that the Bs have the right of possession of Y .J. “ at a ll other times not specifically designate d ” for A.J

. The only partie s that appealed the trial court ’ s judgmen t ar e the Bs, t he AG,
and the Navajo Nation. B ecause the Department did n o t file a notice of appeal, and no party has argued that j ust cause exists for render ing a j udgmen t that the Depa r tment be named managing cons ervator , we do not consider that as a cho ice for

10 T he De partment di d not file a notice of appeal fr om the trial court ’ s ru ling.13 our dis position

. See Tex. R. Ap p. P. 25.1 (c) ; see also Te x. Fam. Code Ann. § 161.207(a) (r equ iring trial court to appoint “ suitable , competent adult ” as managing conservator
after termination if not appointi ng the Department) . Thu s, the only disput e be fore
this court is whether the trial court ’ s awarding joi nt manag ing conservatorship to the Bs and A.J. should sta nd

. Th e Navaj o Nation ask s us to reverse and render a judgment that Y.J. be placed in accordance with ICWA pre ference s (or in th e alternat ive, to re mand for ICWA

- compliant proceedin gs); t he Bs and the AG ask us
to hold IC WA unconstitutional , re verse the trial court ’ s o rder, and ren der judgment
that the Bs be named Y.J

. ’ s sole man aging conservators so th at they may adopt her.
Because we deter mine that the t rial court abused it s discre tion i n making i ts joint

managing

- conserva torship ruling , necessitating a remand for a new trial , regardless of whether ICWA app lies , we d o not reach the const itutionality of ICWA. But we do not
foreclose the tria l court ’ s reconside ring the issue and rulin g on i t in the remanded proceedi ngs. The Bs Have Standing In This Suit
In it s fifth issu e, 11 the N avaj o Nation argues that the Bs la ck ed st anding to seek placement of Y.J. w ith them or a ppointment as managing con se rvators. According to
the Nava jo Natio n, Family Code Section 102.005(4), o n which the Bs rel ied to
intervene in the sui t , allows a p arty to see k only adoption or termina tion and adoption, no t placement or appointm en t as a managing conservator. The Navajo

11 We addre ss the issues out of order for ease of discussion.14 N ation also argues that S ection 102.005 allows a party to file only an original suit, not

an intervention , because the stat u t e does not specifi cally say that it allo ws interve ntion

. Section 102.005 prov ides t hat “ [a ] n original suit requesting only an adop t ion or
for termination o f the parent

– child relationship joined with a p etition for adoption may be filed by

. . . an adult w ho has adopte d, or is the foster parent of and has petitioned to adopt, a sibling of the ch ild

. ” Tex. Fam. Code Ann. § 102.005 ( 4). T he Navaj o Nation does no t disp ute that the Bs have adopted Alan

. As a general rule, an individual ’ s standing to intervene is commensurate with
that individual ’ s s tanding to file an original lawsuit. In re A .C. , N o s . 10

- 15

- 00192

- CV,
10

- 15

- 00193

- CV, 2015 W L 6437843, at *9 (Tex. App.

— Waco Oct. 22, 2015, no pet.) (mem. op.) ; Whitworth v. Whitwo rth , 222 S.W.3d 61 6, 621 (Tex. App.

— Houston [1st
Dis t .] 2007, no pet.) (op. on reh ’ g ) ( “ Generally, an interv enor must show stan ding to maintain an origi nal suit in orde r to intervene. ” ) . A par ty ’ s st anding to file an origina l
suit affecting the parent

– child relationship is typically governed by Family Code
S ectio ns 102.00 3 , 102.004, and 102.005

. T ex . F am . C ode A nn . §§ 102.003

– . 005 ; A.C. , 2015 WL 643 7 843 , at *9 ; see In re Smith , 262 S.W.3d 463, 467 (Te x. App.

— B eaumont 2008, orig. proceeding [mand. denied ] )

. A party who has standing to file an original
suit under Section 102.005 may also f ile an in t ervent io n unde r that same statute. A.C. , 2015 WL 6437843 , at * 8

– 9

.15 T h e Nava jo Natio n acknowledges the holding s of A.C. and Whitwor th bu t argues that by not sp ecific ally mentioning intervention, the plain language of Section
102.005 allows only t he f iling of an original suit, not an in terve ntion

. T h e Navajo
Nation cites no authori ty supporting this prop osition, and we have not found any. It discusse s the holding in Wh itworth

–– in whi ch the court discussed Family Code Section 102.004(b), which speci f i es whic h parties can in tervene in a suit af fecti ng the parent

– child relationship

–– bu t W hitwor th does not su pport th e Nava jo Nation ’ s argument
. 222 S. W.3d at 621

– 22

. Section 102.004(b) p rovide s standing to interven e to certain parties who do not h ave stan ding un de r another F a m ily Code provision to f ile a n original suit

. See Tex. Fam. Code Ann. § 10 2.004(b) ; I n re N.L.G. , 238 S. W.3d 828, 830 (Tex. App.

–– Fort Worth 2007, no pet. ); I n re A.M. , 60 S.W.3d 166, 16 9 (Tex. App.

— Houston [1st Dist.] 2001, no pet.)

. But the B s do have sta nding to file an origi n al su it
under Section 102.005(4), and tha t section does not e xpressly prohibit a part y with original standin g f rom intervening in a suit

. Nor does any other Family Cod e provision. But cf

. Tex. F am. Code Ann. § 1 0 2.0 06 (l i miting stand ing of certain parties
who w oul d otherw ise have standing to file an original suit af fecting the parent

– child relationship). Th erefore, we conclude that the plain language of Section 102.005(4) permits the Bs to intervene rather than b ars them f ro m interven ing

. T h e Navajo Nation argu es, alternatively, that the Bs ’ stan ding wa s limit ed to seeking adoption only, or termination and adopt io n, and that the Bs have no standing to seek place ment of Y.J. or managing conservatorship because Sec t ion 10 2. 005 limits16 the relief they can a sk f or. T he Bs ’ focus in their ple adings and at trial was for the parents ’ rights to be terminated so that the B s could adop t Y.J. , which is what Section 102.005 gives them standing to seek. See Turner v. Robinson , 534 S.W.3 d 115, 123 (Tex. App.

— Houston [14th Dist. ] 2017, pet. denied) ( “ Standing is d etermined at the time
suit is filed in the trial court. ” )

. Th eir requests for conser vators hip were in response to the Depart men t ’ s apparent unwillingness to con sider them a s a pla cement and potential adoption choice

. Add itionally, becau se Y.J. had not been placed with them,
she had not lived with them for at least six months

–– a prerequisite to ado ption unl ess the trial court waives that requirement when it is in the child ’ s best in terest
. See Tex.
Fam. Code Ann. § 16 2.009

. Absent the tr i al court ’ s waive r, t he only way the Bs could fulfill the residency pre re quisite was by obtaining conservatorship and possessio n of
Y .J. Here, t he trial co urt or dered termination but not adoption in a suit i n which t he Bs had standing t o see k the m jointly

. Nothing in Section 1 02.0 05 l imit s their standing

to seek post

- termination conservatorship as against t he De partment or any other nonparent in this inst a nc e . See Tex

. Ass ’ n of Bus. v. Tex

. Air Control Bd. , 852 S .W.2d 440 , 446 (Tex. 1993 ) (noting that because s t anding

— in ter ms of a party ’ s right to initia te a l aw suit and the trial court ’ s power to hear it

— is determined w hen suit is filed, subsequent events do not deprive the court of subject matter jurisdiction )

. W e ther efore overrule the Navajo Nation ’ s fi fth issue.17 Constitutiona lity of IC WA and Family Code Section 152. 104(a)
In its first and second issues, th e Navajo Nation contends that the trial judge erred by not holding ICWA constitutional and by holdin g t hat Secti on 152.104(a) of

t he Family Code violates the Texas constitut ion

. The A G ’ s first and se cond issues,
and the Bs ’ first throu gh third issues, urge the opposite contention : they argue that ICWA is unconstitutional , tha t Famil y Code Section 152.104( a) engrafts all of ICWA
into Texas law, and that Section 15 2.104(a) v iolates th e T e xas constitution

. Although
we hold t hat the trial court m ade t wo errors in its legal reasoning, we do not sustain any of the parties ’ issues related to the constitutionality question because we need not
decid e the ir merits

. First, a lthough the tri al j udge stated that he de clined to decide ICWA ’ s constitutionality u nder t he U n ited States Constitution, he determin ed that ICWA
could not validly pre

- empt Texas law because it violates the anticomm andeering
d octrine, as explained in Murph y v. NCAA , 138 S . Ct . 1461, 1475 (2018) : “ The

an ti commandeering doctrine . . . is simply the express ion of a fundamental structural
decision incorporated into the Co n s titution, i.e. , the decisio n to with hol d from
Co ngress the power to issue orders directly to the S t ates. ” In describing the doct rin e, the Supreme Court explained that a statute that violate s the antic ommande ering
doctrine is unconstitutional because no provision in the Constitution gives Cong re ss the
po wer to pass such a law

. Id. at 1479

. Alth ough Murph y disc usse d whether a statute that v iolate s the anticommandeering doctrine could validly p re

- empt state law, the18 Court determi ned that such a statute could not beca use pre

- emption flows from the
S uprem acy Clause, whi ch is not an independent gra nt of congressiona l po wer. Id. In
other words , pre

- emption un der the Suprem acy C lause will not save a statute that
violates t he anti commandeeri ng d octrine because such a law still exceeds Congress ’ s power un der the U nited States Constitution , an d otherwise unconstitutional stat utes cannot pre

- empt s tate l aw. See i d

. Thus, by determining that ICWA violates the
anti commandeerin g d octrine under Murphy and cannot pre

- empt Texas state law , the
tria l court actuall y d e termi n e d that IC WA i s uncons titutional under t he United States
Const itution, even th ough i t purported not to do so.

Second, t he trial cour t then held that Texas Family Code Section 152

. 1 04(a)
purp orts to independently apply all provisions o f ICWA to al l aspects of a Texas c hild custody proceeding i nvo l ving an Indian child

. S ee 2 5 U.S.C. A. § 1903( 4

) (defini ng

“ Indi an child ” ) . Section 152. 1 04 (a) provides that “ [a] child custody proceeding that pertains to an Indian child as defined in the Indian Child Wel fare Act of 1 978 (25
U .S.C. Section 1901 et s eq. ) is not subject to th is chapter to the extent that it is go verned by the Indian Child Welfare Act. ” Tex. Fa m. Code Ann. § 152.104( a) (e mphasis added). “ [ T

] his chapter ” i s Chapter 152, which adopted the Uni f orm Chil d C ustody Juris d iction and Enforcement Ac t (UCCJEA)

. Id. § 152. 10 1. Chapter 152 deals generally with th e p rop er court in which custody di sputes regar ding a child are to be
heard and the authority to be given to child custody determination s of othe r courts. See id

. §§ 15 2

. 001

– .317

.19 By its plain la nguage, Section 152. 10 4 ( a) does not purpo rt to apply all ICWA
pr ovisions to all facets of Texas child custod y proceedings. By limiting its scope to

“ this ch apter, ” i t defers to ICWA only in juri s d i c t i on a l i ssues ari sing unde r the UCCJEA. 12 No such issues oc curred in this proceed in g. Except for the Navaj o Nation ’ s attempt to remove t he case to a tribal court

–– the denial of which the Nava jo
Nation has not appealed 13

–– all parties have agreed that the trial court is the co urt of
continui ng, exclusive jurisdiction for this case. See id

. § 1 52.20 2. Thus, t he tri al court erred by holding that S e ctio n 152.1 0 4 (a) of the Fam ily Code purported to make all of ICWA applicable to all facets of Texas c h ild custody procee dings , in depen dent of
federal law. The placement pr efer ences of IC WA at the h ea rt of thi s case ar e not affected by whether Sectio n 152.104(a) viola tes the T e xas c o nstitution ; thus, that

r uling of law w as unnecessary to the disposition of this case. 14

12 B y comparison, other states have specifically inco rporated ICWA into state proceed ings. See, e.g. , Ca l. Wel f. & I nst. §§ 224

– 224. 6 (in corporating specifi c provisions of ICWA into Calif o rnia law) ; O kla. Stat. tit . 10, § 40.1 ( stating that the Oklahoma I ndian Child Welfare A ct was intended to clarify “ stat e policies and procedu re s rega rding the imple mentati on by the State o f Oklah oma of th e fed eral Indian C h ild Welfar e Act ” ), § 40.6 ( “ The placement preferences specified in 25 U.S.C. Section 1915, shall apply to al l . . . preadoptive, ado ptive and foster care place ments. ” ).

13 ICW A allows such a removal only i f no pare nt obje c ts. 25 U.S.C.A. § 191 1(b).

14

We therefore agre e with the Navajo Nation that Section 152.104(a) ’ s constitutionality has no bearing on th is case. Accordingly , we also decline to address whether Section 152.104 (a) violates the T e xas c onstitut ion. See In re B. L. D. , 113 S. W.3d 340, 349 (Tex. 2 003).20 To summ ariz e, t he tr ial court pu rpo rted not to decide whether ICWA violates
the fe d er al Constitution, bu t it s r uling that ICWA violates the anticommandeeri ng d octrine is a ctually a determination that ICWA is unc onstitutional. Although t he trial

cou rt purported not to apply IC WA to the proce edings, it allowed the Na v ajo Nation

to particip ate in the trial 15 and ma de A. J

. –– a nonparty whose interest is being
represe nted only by the Navajo Nation

–– a joint managing conse rvator. A nd, a s an alternative ruling, t he trial court found tha t even if ICWA is constitutional and appl ie d to the proceedings , go od cause exi ste d to deviate from its preferred placement

s ch eme. See 25 U.S.C.A. § 1 915( a )

– ( b) (provi ding placement pre ferences “ in the absence of good cause to the contrary ” )

. T hu s, the tr ial court appli ed ICWA while purporting n ot to apply IC WA

. The tria l judge under standably attempted to av oid squa rely addressing whether ICWA violates the United States Constitution

. A fede ral district judge has held that it
does , a Fifth Circu it panel

–– wi th one jud ge di ssenting

–– has held that it does not, and
the F if th C ircuit court has vacated th e panel opinion and judgment and will be rehearing the ca se en banc. Therefore, t his exac t issu e h as been

–– and will be

–– extensively briefed and argued in the fede ral system in a case in which both the St ate of T exas and the B s ar e parties. But in his attempt to f ashion a remedy that

15 See 25 U.S.C.A. § 19 11 (c) ( givi ng I ndian child ’ s tribe the right t o intervene at
a ny point in a state proceedi ng for the foster care placement of, or termination of parental rights to , an Indian chil d).21 incorporates the important co ncerns o f ICWA 16 and Texas law reg arding the best
inter est of the child, 17 the trial judge made co nflicting ru lings in thi s case that are
difficult to harmonize

. In attem ptin g to address the interest s of all parties a nd provide
al ternative relief in t he event the Fift h Cir cuit (or pe rhaps ultimately th e United States Supreme Cour t ) decides ICWA is cons titutiona l , 18 the trial j udge reversib ly erred

. Bec ause , as we explain be low, t he trial judge ’ s su a sponte conservatorship r uling
necessitates a new trial regardle ss of th e fede ral system ’ s conclusion regarding ICWA ’ s constitutionality, we need not reach th e federal constitutional issue 19 and t her efore do

n ot grant any of the pa rties relief under the ir related issues.

16 See id

. § 19 0 1

– 02.

17 The Navajo Nation contends “ t hat ICWA does not aban don

–– nor com pel trial courts to abandon

–– t he be st interest s of children. Instead, ICWA supplements the tra ditional best interest standards with a modified best interest standard a nd stated placeme nt preference s, which are not absolute

. ”

18 Pr actica lly spea k ing, we do not quarrel with th is approach. Failing to co mply with certain provision s of ICWA can result in a challeng eable, inf i rm judgment well after the trial court has made a r uli ng a nd the chi ld has bo nded with a c aregiver , s ee id

. § 191 3 ( d ) (allow ing an Indian child ’ s parent who voluntarily consent ed to adoption to petition to vacate it on duress or f raud grounds) , § 1 914 (allowing Indian child ’ s parent or tribe to petition to invalidate foster care placement o r termination for violation of Sections 1911 , 1912, 1913) , a result wh ich goes against bedro ck pr i nciples underpinning Texas family law that are focused on promotin g st ability and permanence for children

. Followi ng the pro cedural r equireme nts o f ICWA for the termination

–– whi l e recogniz ing t h e t ension t hat ca n se emin gly result in some cases be twee n its sta ted goals an d a child ’ s best interest

–– is an understa ndable appro ach until th e federal constitutional question is settled

.

19 Likewise , we nee d n ot address th e Na vajo Nation ’ s subargument that th e AG and the Bs are bou nd by issue preclusion, an argu ment which t he Nav ajo Nation22 Evidence Does Not Support Ruling Under Either T exas Law or ICWA The Navaj o Nation ’ s fourth issue, and the Bs ’ fourth and fifth issues , 20
advocat e that th e trial court ’ s joint managing cons ervato rship decision shoul d be

r eversed: the Navajo Nation because it contends ICWA requires placement with A.J.
onl y , in that the evidenc e is legally and factuall y in sufficient to show that goo d cause
exists to deviate f rom ICWA ’ s Indi an

- centered placement pref erences ; and the Bs
be cause (1) they contend that the tr ial court ’ s decision is not in Y.J. ’ s best interest
unde r Texas law 21 and (2) even if ICWA a pplies, the evidence sh ows that good cause
exists to deviat e from IC W A ’ s p lacement preferences. Because both s i d es ’ complaints

re qu ire an examination of the trial evidence , we review their issu es tog ether.
Standard of review
T h e parties agree that we review the trial court ’ s conservatorship decision for an abuse o f discret ion. See I n re J.A.J. , 243 S.W

. 3d 611, 61 6 (Tex. 2007); In re A .K.M. ,

con cedes has been rendered moot by the Fifth C i rcuit ’ s subsequ ent actio ns in the case pending in tha t court, except t o the extent tha t the complaint must be raise d f or prese rvation p urpose s.

20 We do not reac h the Navajo Nation ’ s third issue, which argues abou t alleged error in pre

- termination placement of Y.J. Because both parent s ’ right s have been termi nat ed and no part y challenges the ter mination, even if error occurre d in the pre

ter m i nation placement s , th e Navajo Nation would not be entitled to relief. See In re A.M. , 570 S.W.3d 860, 86 6

– 67 (Tex. App.

–– El Paso 2018, n o pet.) (citin g, and agreeing with re aso ning of , Mo ntana and Iowa cases holding similarl y) ; see also T ex. R

. A pp. P. 47.1.

21 Se e generally H o l

ley v. Adam s , 544 S.W

. 2d 367, 371

– 72 (Tex. 1976) (set ting forth nonexhaust iv e factors courts generally use in analyzing child ’ s best interest).23 N o . 02

- 12

- 00469

- CV , 2013 WL 6564267, at *2 (Tex. App.

–– Fort Worth Dec. 12, 2013, no pet.) (me m. o p.). A trial court abuses its discretion if it makes an erroneous legal ruling e ven in an unsettled area of law. See In re Dawson , 550 S.W.3d 625, 628 ( Tex. 2018) (orig. proceeding) ; In re United Scaffolding, Inc. , 301 S.W.3d 661, 66 3 (Tex. 2010) (orig. proceeding)

. Thus, w hether the evidence supporting the decision is legally and factually sufficient i s rel evan t in deciding whether the trial court abu sed its
discretion. See In re T.D.C. , 91 S.W.3d 865, 872 (Tex. App.

–– Fort Worth 2002 , pet. denied) (op. on reh ’ g)

. Evidentiary review
T ermination of parental rights was not the focus of the trial because Mother relinquish ed her ri ghts an d a father could not b e found ; ins tead, the primary

co nsider ation before the trial co urt was wh e re t o p lace Y.J. after term ination. The Bs ’ primary foc us was on adoption , whether by immediate placement with them and eventual adopt ion after a cons erv atorship or by waiver of the six

- month re quir ement and immedi ate adoption.
The De partment ’ s c aseworker
As st ated be fore, t he D epartment advocated placement of Y.J. solely with A.J.
T h e caseworker testified that although delays in the Dep artment ’ s IT sys tem had
p revented the compl et ion of a n IC PC home stu d y for A. J. , 22 she had no concerns

22 The Dep artm ent ha d s ent the r equest to A r izona, who then ha d to send the req uest to the Navajo Nation. Onc e the Navajo Nation had completed its home stud y24 about placem ent with A.J . after speakin g wi th her o n the phone. According to a
repre sentative from the Na vajo Nation , the I CPC home stu dy for A.J. woul d ha ve bee n fully completed less than a week aft er trial

. A. J. l ives close to Y.J. ’ s four oldest
half siblings and sees the m at least on ce a week

. A.J. had not visited Y.J. while the case was pending

. When asked why, the caseworker res p onded, “ J ust financi ally and she ’ s out of state. I t ’ s hard to come t o Texas

. ” Y.J . was very bonded to the foster family she was living w ith at the t ime of trial , and the Department had no concerns abou t that home

. The Department planned for Y.J. to s tay t here pending c ompleti on of A.J. ’ s h ome st ud y . Accordi ng to the

casewo r ker , the Dep artment wou ld h ave recommended A.J. for pl acement even if ICWA di d not apply because A

. J

. is a family member. Accordi ng to the caseworker , Y.J. ’ s best interest was to be placed with A.J. instead of the Bs beca u se of “ family
ties , ” which in clud es ex ten ded f amily. A

. J

. and Y .J. ’ s oldest half si bling had visited
with Y.J. the day be fore t rial.
The casewo rker stated that the Bs had of fered Mother an open adoption , 23 i n which Mother would continue to ha ve contact with Y.J. T h e Departme nt did n ot thin k an op en ad option was in Y.J. ’s best i nt e rest. But the casewo rker testif ied that it
and other r equirements, it would send th e material s back to A r izona, which would then send the final app r oval to Texas. A t the time of trial, Tex as had sen t th e or iginal request to Arizona, but Arizona had not yet forwarded it to the Navajo Nation.

23 The casewo rker was never asked to explain how she knew the Bs had offered an ope n adoption, but s h e s a id that she had bec o me c oncerned because she had heard
a bo ut a “ possible ” open a do ption.25 was in Y.J. ’s best int erest to stay in her then

- current foster placemen t “ f or up to
. . . two weeks ” until the I CPC approva l was finished , “ knowing it c an be f i nished with [in]
less th an a week

. ” The Depart m ent intended to place Y.J. with A.J. upon Arizon a ’ s ICPC approv al

. Accord in g to the caseworker , from S epte mber 2018 to t he time of trial, the Bs had possess ion of and access to Y.J. for at least one v i si t per month, anyw h ere fr om overnight to a full day. Y.J. ’ s fos ter mother set up these visits

. When asked whether the sibling contact between Y.J. and Alan w ould be main tained if Y. J. were to b e placed with A. J., the casewo rker responded, “ I believe [Y.J.] wil l know where to

contact her brothe r and how that initial

-- initial bond that she created when sh e m et him here. ”
Al though the foster parent wa s ado ption motivated , the foster family w as not ICWA compliant

. CASA represent a t ive Stacey Main, th e CASA representati ve for Y. J., had also been Alan ’s advocate.
Main recommended placing Y.J. with the Bs because of the relationshi p they al ready
had with her and to minimize “ traum a . ” 24 She also acknowledged that n a ming th e Department a s Y.J. ’ s managing conservator would facilitate f inancial subsid ies for Y .J.

24 Main said that CAS A had trained her in trauma, utilizing a continuing series of two

- hour lectures from a doctor wh o special izes in childhood trauma

.26 According to Main, Y.J. already ha d an attachment to her foster mother a nd to
the Bs. But Main agreed it wa s important for Y.J. to bond wi th her olde st half sib l ings
and extended f am ily in Ar izona. As to placement with A.J., Ma i n opin ed, “ I lo ok at it
as a win

- win eithe r way. If she goes with the [Bs] , she wins. If she goes w ith [A. J.] , she
wins. I f she s tays with the foster home, she wins. I like them all. ” Accordi ng to Main , keepi ng Y.J. “with family ” was the main goal, and Y.J

. would have contact w ith her family with any of those placements. Y.J. had norma l , si bling

- ty pe interactions with t he Bs ’ children. Her then

current fo ster parent s “ ado re [d] ” her a nd were bonded to h er . Na vajo Nation e xpert C eleste S mith, a senior socia l worker with N avajo C hildr en and F amily S ervices
Indi an Child W elfare Act , testified as a n ex pert on th e Navajo Nation. Smith is an

e nrolled member of the tribe who lives on the reservation. Although Smith a greed
that termination of t he parents ’ rights wa s in Y.J. ’ s best interest, she recommen ded place men t of Y.J . with A.J.
Smith had initiated a home study for A.J. , but she had not re c e ive d it by the
tim e of trial be cause the ICPC requ est with Arizona had not been completed

. N evertheless, she had no concer ns about A.J. based on background checks. 25 Smith estimated that when she received t he ICPC request from A r izona, she co uld finish the

25 State and federal backg round checks , and Nav a jo Department of Family Services background checks, f or A.J. and her adult s on living with her showed “ no findings. ”27 hom e study within a w e e k. The only rema ining items were for A.J. to obtain a Navajo
N ation fos ter care li cense and for Smith to check t wo additional re ferences. A

. J

. had already c omp leted the foster c are “ trainin gs , ” and Y.J. could be fully pla ced wit h A

. J

. before A. J. was of ficially license d as a foster parent. Additionally , ac c ordi n g to Smith, A.J. ’ s hom e was cle an, safe, and appropriate for Y.J. A.J. live d with her adu lt so n in a two

- bedroom home with an addition in back
for which a doorway need ed to be cut

. Y.J. would sleep in A.J. ’ s bedroom with her,
which is not u ncommon fo r Navaj o. A.J. is a ho memaker , w hich is a traditional Navajo role , and he r ch ildre n help support her and take care of her bi lls , which is al so Navajo custom

. A.J. receives food stamps and her monthly inco me varies. H er thirty

three

- year

- old son and oth er f a mily me m b ers would provide Y.J. ’ s care when she

co uld not, such as wh en she was helping care for her chronically ill moth er and
brother

. Acco rding to A.J., Y. J. will tak e the bus to school when she gets older

. Sm ith testi fied that the refe rences she con ta c ted for A.J. acknowledge that she is a good candidat e for pla cement. A.J. ’s family, including the famil y living o n the

re servation, are “very close ” and were supportive of A.J. ’s decision to seek placement of Y.J. with her. Y.J

. ’ s maternal g randmother , A. J. ’ s sister

- in

- law , communicat es with A.J . and has contact with Mother. According to Smith, Y.J. ’ s maternal gr a ndmother
returns to the r eservation “ on and off. ” 26

26 T h is evidence render s somewhat curious the Department caseworker ’ s concern tha t the Bs w o uld seek an o pen adoption

. Although the tr ia l court co uld not28 Smith further tes tified ab out the importance of the Na vajo c ulture to Y.J.:

“ [I] t ’ s her whole identity. It ’ s going to help

. . . to know where she comes from, what her clans are, w hat

. . . Navajo cu lture traditions there are for her. From

. . . birth

. . .
to [her] elderl y age, sh e could have the ceremonies, the teaching s, in order to

. . . [have] a balance [d] life for her. ” Smith expla ined that children are sacre d to the
Nav ajo and that the tr ibe is always looking to its children ’s future

. Smith explai ned
that contact with Y.J. ’ s olde st half siblings, especially the oldest who understands the
Nava jo language an d traditional Navajo foods and customs, would help Y.J. ’ s cultu ral understanding of what it means to be a Navajo girl and woman. It is e spec ially import an t to hand down the Navaj o langua ge. T h e Navajo Natio n ’s concerns about

non

- Navajo place m ent were th e loss o f cultural and institutional knowledg e of the Navajo Nat ion and th e diff iculty for children living outside the res ervation to particip ate in Nava jo ceremonies because the y gen erally are not open to the public

. But Navajo child ren who do not live on the reservation may participate in traditional

cer emonies with their family

. Smith ac k nowledged that Y.J . would n ot receive bene fits for being a t ribal me mber b ut would receive free medical c are.

have judicial ly noticed for its truth the Depart ment ’ s statement in the affidavit attached to its removal petition that Y.J. ’ s maternal grandmother had a CPS history in New Mexico , se e In re R. A. , N o. 02

- 18

- 00185

- CV, 2018 WL 5832148, at * 8 (Tex. Ap p.

— F ort Worth Nov. 8, 2018, no pet.) (m em. op. ), it could have judicially noticed that the Department had made such an allegation. N evertheless, it is undisputed that A.J. does not have c ontact with Mother.29 Acc ording to Smith, in January 2019, when Mother found ou t that A.J. was also
intereste d in placement, Mot her told her that s he would be satis fied w ith place ment of Y.J. with either the Bs or A.J

. But Smith did not find out about Moth er ’ s affidavit of

r elinqui shment, in which she again expressed a pr efe rence for the Bs, until the day
before trial.
C.B.
C.B. testified that the Bs had found out abo ut Y.J. ’s birth thr ough Alan ’s biological p at ernal grandmother, who is a C her okee. The Bs keep in touch with her and the adoptive mother of Moth er ’ s fifth and si xt h children , w ho also have a
C h erokee birth father

. C. B. testified that th e B s had not promised Mother an open adoption but had
not closed the door to possible supe rvised vis itation between Y .J. and Mother if Mother were to stay sober an d was consistent w ith her prom ises. In other words, they

were “ open to being open. ” But C.B . also said that th e Bs would co mply with any
court order that Mother have no contact with Y.J. Ad ditionally , Mother ha d never requested visitat ion nor had any contact with Alan.
Acco rdin g to C.B. , Alan “ understands that [Y.J. ’s] his s iste r ” an d is excited t o

see her. S he “ lights up ” around him. All of the Bs ’ children are “ver y playful ” with Y.J., and she likes the attention an d interaction. The Bs “ fe el very stron gly that [Y. J. and A lan] should grow up togeth er and su pport and love each other ” because of t he ir importan t sibl ing bond. The Bs were co n cerned that if Y .J. wer e placed with A. J. , she30 might never see Alan again

. Their plan was f or Y.J. to sleep in a room with Alan until

“ it was age a ppropriat e necessary ” for her to have her own room

. Although the Bs met with Mother after they found her in the c ounty ja il, they
did not ask her to re qu est them for place ment , nor did they disc uss an open adoption

. C.B. was no t present wh en Mothe r signed the affidavi t of relinquishment , a nd he did not ask her to sign it. He di d not know where it was signed or created because “ [a]ll of that was handled through her attorney. ” The Bs were trying t o learn Nav ajo c ultu re. They had used age
- appropriate books for that p urpose , but bec ause Alan was only three and a half at the time of trial,
the books were more “ lifestyle ” books

. To involve Alan in the Cherokee culture , they

ma in tained a relationship with his biological family, particularly his biological paternal
gran dmot her

. They had “ sought recommendations from her

. . . [and] directions [they] could point him in. ” They had at te nd ed two public powwows in the
Da l las/Fort Worth area an d w ere ed ucating themselves , as C.B. p ut it, to “ better

e ducate our chil d and o ur children,

. . . as a family, w hat it m eans to be native, the
histo ry, the culture. . . . [A] s an outsider looking in, as best as we can, that is difficult [,] and we have always welcomed any resources tha t a re there to help us in t hat process. ”
C. B. a ckn owledged that b ecause the Cher okee tribe has been mo re involved in Alan ’ s life, he h as a stronger connection to that tribe, but the Bs do not prefer one tribe over
another. Alan ’ s Navajo family had not atte mpted to contact h im , but C.B. said the B s31 “ would we lcome any contact from [that ] family to help ” raise him

. C.B. did not think
that Alan ’ s Navajo fa mily ’ s lack of contact with him would change , though

. When ask ed , “ You underst and the c onundrum h ere, that we have more than ju s t one s ibling in this picture? ” C.B. answered, “Yes. ” He ack nowledged that “ t he problem of trying to prioritize which sibli ng is most important to have a relationship with moving forward ” wa s “ very complica ted. ” J.B. J. B. acknowledged that the Bs did not kn ow much about Navajo culture. J .B. had tried to conta ct Y.J. ’s maternal grandmother and had texted her pictures of Alan
at Mothe r ’s r equest. J.B. testified that Y.J. had visited with t he B fami ly one day each month bet ween S e ptember 2 018 and January 2019 a nd once each month fo r a forty

eight

- hour period between January 201 9 and t rial. Summary of th e Bs ’ adoption report for Alan
The trial court admitted into evidence a favorable 201 7 adop tion report for the
Bs that CK Family S e r vices had comple te d for Alan ’ s foster placement and adoption

. The Depar tment placed Alan with the Bs the day he was removed from Mother ’ s

care. At the tim e o f the repor t, the Bs were in their la te thirtie s; they h ave two biological chi ldren , who were both under the age of ten
. C.B. was a co llege

- educate d

s tay

- at

- home fath er , and J.B. was an employed in the medical field with a substantial monthly income. The interv i ewer describe d their marriage as “ stable and loving , ” their family a s “ lovi ng an d affecti onate , ” and thei r characters as “ co m passionate. ” T h e32 home envi ronment was safe; they lived in a fou r

- bedroom, three

- bath home with their
chil dren and a dog. Both Bs had passed criminal and child abuse ba ckground checks. Regarding Alan ’ s biological fa m ily, the report stated that the Bs had main tained
p hone contact with his paternal grandmother and that they were “ open to
. . . have
contact, a s long as it i s appropr iate, ” with bi ol ogical family members to en sure he has

a “ familial and cultural connection. ” Additi onally, it stated the Bs “ want[ed] to ensu re th ey learn and implement [A lan ’ s] culture into their ho me an d lives due to [h is] b eing Navajo and Cherokee Indian. ” At the time, Alan had n eve r met any of his olde st half siblings.
CK Family Serv ices u pdated the r eport in October 2018 after the Bs beca m e in tereste d i n a dop ting Y.J. T h e addendum was not as detailed as the origi nal repor t but sho wed no significant changes. A.J
. A.J. t estified that she lives on the Navajo reservation close to many fam i ly members. Y.J. ’ s f our oldest half siblings live wi th A. J. ’ s older sister about twenty

seven miles from her. A. J. s e es Y.J. ’ s oldest half sibli n g s tw ice a week , but Y

. J

. would
see them probably every othe r day

. A.J. has a lot of ex tended fam i ly members who would help with Y.J. ’ s care and take care of anyth ing s he could not

. A.J. said she would follow a n y order t hat Y.J. have no contact wit h Mother;
A

. J . had not heard from M o ther for many ye ars .33 A.J. supplements her income by m ak ing and sellin g crafts , and h er four sons and her daug hter help her financially , whic h is normal for Navajo families on th e

reserva tion

. A. J. te s ti fied that she would be able to support Y.J. financiall y. A. J. did no t k now m uch about Alan, but Y.J. ’s maternal g randmother had told
her “ a litt le bit

. ” She did not know about Y.J. ’s other child ren in th e DFW area. When asked, “ When you w ere asked about coming out here to visit [Y.J.] , has cost been a

c onsideratio n

-- has cost been a problem for you to be able to come out here to visit up until now ? , ” she answered “ No

. ” [Emphasis added.]
Fi n dings The trial judge made extensive fin dings on the record an d in written findings of
fact and conclusions of law.
O n th e record, t h e trial judge stated that he had applied the H o lley factors i n deciding who shou ld be Y.J. ’s managing conservator

. H e order ed th at Y.J. be en rolled
in a Nava j o language class , w hich the Navajo Nation had a duty to identify , beginning
as soon as poss ib l e and continuing until she turned fourteen

. T he judge acknowled ged
that “ [w] hen a person leaves a [n]ation, there is an expecta tio n that yo u will lose s om e of your culture.

. . . [A] nd the re ’ s expectation your [descendants] will also slowly lose

some o f their cult ur e but that ’ s part of the decision t hat we make to immigrate to other cult ures and other c ountries

. ” He recogn ized that Y.J

. ’ s Navajo culture i s pa rt of
her identi t y and that preserving culture and heritage can be a struggle. He stat e d that

“ [t]he goals of ICWA are noble a nd most often what is best for the c hildren. ” As for34 the dual joint manag ing con servators hip, he explain ed , “ I ’ m trying to find that mix to ensure that we give this child every chance possible to maintai n ties with

. . . her rich Navajo hist ory and culture, in the meantime, doing what I fe el like is best for the child at this point. ” The ju dge indi cated that “ a large factor in thi s [ ruling ] was the relationship that she would have with her biologica l brother wh o is the closest sibling in age to her. ” Acknowledging the evidence about the importanc e of tri bal rituals that oc cur when a child reach es certai n miles tones, the trial court said that t he re is no way to plan those and he “ certainly wish[ed] there was a wa y for the Co ur t to plan other things out to make sure she ’ s in touch with her heritage and n ot lose sight of that. ”
B ut the judge w ent on t o say that

–– w

ithout regard to any of the parties ’ finan cial

resources

–– he though t i t was in Y.J. ’ s best in teres t to li ve wi th her half sibling who

was closest to her in age while maintainin g her cultural ties to the Navajo Nation

. H e

stat ed, “ [T] here was no bad situati on for [Y.J ]

. ”
The trial cou rt si gned findings of fact and conclusion s of law consistent wit h i t s verbal findings

. S pecifically, the trial court found and concluded that “ it is in the
chi ld ’ s bes t inter es t to enter into this joint manag ing conse rvatorship arra ngeme nt to place her in a loving home with her half sibling wh o is closest to h er in age by several
y ears, while still ensuring the child ’ s continued co nnection to Navajo culture and family. ” The trial court also found and c o ncluded that the Bs would provide Y.J.

“ with a stable a nd loving home envi ronment that gives her th e care, nurturance,35 guidance , and supervision necessary for [her] safety an d development ” and that it was
i n Y.J. ’ s best in terest “ to have her pr i mary residence in the same home with her sibling , [Al an], who live s with [them ] as their adopted son. ” The trial court further found that it was in Y.J. ’ s best interest for A.J. t o have “ the right of possessio n . . . f or designated summer, weekend, and holida y periods. ” Finally , t he trial cou rt concluded
that “ the best i nterest of [Y. J.] provides good cause t o place [ her] with the [Bs] pursuant to 25 U.S

. C. § 1915(b). ”
Best

- interest determination wit hout cons ideration of ICWA
The Bs contend that the trial court abused its discretion under T e x as law,
without regard to ICW A ’ s placement preferences, by nami ng A.J . a joint managing conservator and mandating a possession and acces s sch edule akin to parents living
more than one hundred miles apart

. Their argument d iscusses the Holley factors and pla ces great emphasis o n Y.J. ’ s sibli ng relations hip with Alan.
The nonexhaustiv e H o lley factors include (A) the [child’s] desires . . . ; (B) the [child’s] emotiona l and physical needs[,] . . . now and in the future; (C) the emotional and physical danger to t he child now and in the future; (D) the paren tal abil ities of the individuals seeking custody;36 (E) the programs available to a ssist these individuals to promote the [child’s] best interest . . . ; (F) t he plans for the child by these individuals or[, if a p plicable,] by
the a gency seeking custody; (G) the sta bility of the home or proposed placement; (H) the [parent’s] acts or omis sions . . . indicat[ing] t hat the e xisting parent

– child relationship is not a proper one; and (I) any excuse for the [parent’s] a c ts or omissions

. . . . 544 S.W.2d at 371

– 72 (citati ons omit ted). 27 We need not consider (H) and (I ) because
whether Y .J. should be returned to her parents is n ot an iss ue. Y.J. was too young to articulate he r desires, and the evidenc e showed t hat she
had a normal, healthy i nfant ’ s response to c aregivers a nd other children. We nee d not
compare the degree of bonding with Y.J. 28 as between the Bs and A.J. becau se the
evide nce showed that Y.J. ’ s primary bond at th e ti me of trial was with h er foster
mother , who ha d the p rimary car e of and access to Y.J. by v irtue of the foster care placement

. There was no evidence that she had any special emotional or physical

27 We employ the H o lley factors in re view ing cons ervatorship orders , in addi tion to termination o rders. S ee In re R. M. , N o . 02

- 18

- 00004

- CV , 2018 WL 2293285, at * 5 (Tex. App.

–– Fort Worth May 21, 2018, no pet. ) (mem. o p.).

28 If ICW A applies, federal rules implementing it provide th at “ [a] placem ent may not de part from the preferences based solely on ord inary bonding or attachment that flowed from ti me spent in a non

- preferred placement that was made in violation of ICWA. ” 25 C.F.R. § 23.132(e ) (2016)

.37 needs that coul d not be met by either the Bs or A.J. s ep arately, nor was there any evidence of a pa rtic ular emotion al or ph ysical danger to her other th an theor etical
contact with Mother

. B oth the Bs and A. J. ex pressed a willingness to protect Y.J.
from harmful contact w ith M o ther.
Th e evidence sho wed that bo th the Bs were excellent parents . Th ere was not much evidence specif ic to A.J. ’ s parenti ng abili ties, but the evidence show ed that s he
ha d her own adult children who helped support her and that she maintain ed close ties

to her family and extended family. T here was not much evidence about a ny programs

av ailable to assist th e Bs and A.J. other than tha t Y.J. would be entitled to health care
on the reservation and would have access to A r izona Med icaid. She would also have

access to an early interv en tion program and Head Start

. T h e evidence showed that Navaj o culture includes a ssisting older tribal members with the ir needs , and A.J. ’ s family would help her with child care

. T h ere wa s also ev idence that naming the Departm ent as mana ging conservator would have facilitated “ financial subsidies ” for Y.J.
T he Bs wa nted to adopt Y.J. S he would be rais ed in a home with continual daily ac cess to the half sibling that is closest to her in age , i n a loving ho me with t wo other children

. The Bs intended to facilitate contact with her two half siblin g s in th e DFW area and e xpressed a willingne ss to provide contact with her other half sib lings and family on the reservation and to educate her in Navajo culture

. The Navajo Nation asked only fo r placement of Y.J. with A.J .; there was no evidence that A.J. had38 any plan s to a dopt Y. J. if the child we re to be placed with her. But Y.J. would be
immersed in her Na va j o culture and herit a ge , have weekly visits with four of her
olde st h alf sibli ngs , and have close contact with her extended Navajo f amily.
T he evidence s howed that both hom es, ind ivid ually, would be st able choices for Y.J. , and each would fulfill a different primary need: wit h the Bs, a home with daily contact with her half sibling closes t in age , the opportunit y to see other half siblings li ving clo se b y (a nd possibly her h al f sibling s living on the reservation) , and
occasional intera ction with the Navajo tribe direc ted by no n

- Indian parents; and with A.J. , a home without daily sibling interaction but w ith frequent contact with her four
oldest siblings and extended fami ly an d with immer sion in Y.J. ’ s Nava jo culture and
her itage ( but with possibly little to no contact with her half siblings in Tex a s)

. Con sidering th e Holley factors separately , then, without considering the sibling

atta chment and contact evidence , the evid ence is favorable for either the Bs or A.J. to provide a home for Y.J. B ut we are reviewing t he trial court ’ s decisio n to nam e all
three nonparent joint managing cons ervators. N o evidence supports the trial cou rt ’ s decision that Y.J. ’ s stability and p erman ence would b e best served by the arran gement ordered. As t h e Bs note, the standard possession and acc ess provisions g enerally exist
for when parents

–– with whom the child already has an exi sti ng relatio nship

–– di vorc e

or are not married and the trial co urt must order custody in a way that maintains an already existing bond between the child and thos e t wo parents. That is n ot t he case
here. And t he arran gement seri ously undermines the possibility that Y.J. could ev er be39 adopted. See T ex. Fam. Code Ann. § 162.009 ( si x
- month residency r e quirement ) , 29 §
162 .010 (requ iring written consent to ad o ption by “ a managing conservator ” u nless

“ the manag ing con servator ” is a petition er, but not specif ically addressing co nsent
req uired when a child has more than one

–– non alig ned

–– joint managing conservator ) , § 263.3026 (including as only perman ency goal after termination by Department ,

“ adop tion of the child by a relative or other suitable individual ” )

. Thus, h ere, the join t managin g conserv ator arrangement does little to promote a stable and permanent solut ion for Y.J.

Based on the trial judg e ’ s com ments, it is clear that he was trying to pl ace Y.J.
where she woul d develop and enjoy a daily sibling attach ment, have t he most access
to all of her half sibli ngs , and stil l maintain her relationshi p with and ac ce ss to her Navajo culture and extended fam ily

. 30 But in doing so , the trial judge fashioned a remedy that seriously undermin es Y. J. ’ s stability and perm anence, particularly i n her
younger years. 31 Not only is establish ing a stable , permanent home for a child a compelling state interest , the need for permanence is a paramount consideration for a

29 A.J. could not meet this r equi rement under the curr ent orde r.

30 We also have no quarrel wit h the trial judge ’ s suggestion that this could be a proper best

- interest consideration under Texas law , regardless of ICWA ’ s application, esp ecially consideri ng tha t th e record includes expert te stimony about the benefit to Y.J . of being a part of her heritage a nd culture.

31 For example, without stating w hy it would be in her best interest, the order provides t hat when Y.J. turns five, she may fly alone between the airpor t nearest the B s ’ residenc e and the ai rpo r t nearest A.J. ’ s residence

.40 child ’ s present and future physica l and emotional needs. In re J.W. , N o . 10

- 18

- 00344

- CV, 2019 WL 5078678, at *8 (Tex. App.

— Waco Oct. 9, 2019, no pet. h.) (mem. op.

on r eh ’ g ) ; see T ex. Fam. Code An n. § 153.001(a)(2); I n re A.B. , 412 S. W.3d 588, 609 n.15 (Tex. App.

–– Fort Worth 2013 ) (en banc op. on reh ’ g) , aff ’ d

, 437 S.W.3d 498 ( Tex. 2014)

. Acc ordin gly , we hold

–– without reference to ICWA

–– that th e trial c ourt abused its discretion by naming the Bs and A.J. the child ’ s joint managing

conservators with a possession and access schedule akin to parents living more than
100 mi les apart.
W e sustai n the Bs ’ fift h issue.
Good cause under ICWA
The trial co urt likewise ab used its d iscret ion in mak ing i ts alternative good

c ause finding under ICWA becaus e the evidence is factually insufficient to support i t. A party seeking to establish good c aus e for no t following ICWA ’ s placement preferences for ado ptive or preadoptive placement

–– here, wi th a membe r o f the
Indian c hild ’ s extende d family

–– m ust bring fort h clear and convincing evidence of good c au se. See 25 C.F.R. § 23.132(b) (2016)

. 32 That good cause mus t be bas ed on at

32 T his s tandard is set forth in the Bureau of Indian Aff airs ’ Final Rule , which clarifies the “ minimum Fed eral standards govern ing implementation of . . . ICWA to ensure th at ICWA is applie d in all States consiste nt with the Act ’ s express language, Congress ’ s inte nt in enacting t he s tatute, and to promote the stability and sec urity of Indian tribes and families. ” Id

. § 23.101 (2016)

. The B s do not raise indepen dent con s t i tutio n al c hallenges to I CWA and the current version o f the Fi nal R u l e . Thus, in assuming ICWA ’ s application for pu rposes of this part of our anal ysis, we also presume

–– without deciding

–– the constitutional ity of the Final R ule.41 least one of several considerations; he re , the t wo possible consideration s are “ [t]he

r eq uest of one or both of the In dian child ’ s parents, if th ey attest that they have reviewed the place ment option s, if any, that comply with the order of prefere nce ” and

“ [t]he presence of a sibling attachment t hat can be maintained only through a
p articular placement. ” Id. § 23.132(c) (1), (3)

. To determine if evidence is legally sufficient under the clear

- and

- convincing standard, we look at all the eviden ce in th e light most favorable to the challenged finding t o deter mine whether a reasonable factfinder co ul d form a firm belief or

c onviction that the finding is true. In re J.F.C. , 96 S.W.3d 256, 26 6 (Tex. 2002)

. Evidence is factually insuff icient under th e clear

- and

- c onvincing s tan dard if, in light of
the enti re record , the disputed evidence that a r easonable factfinder co uld not hav e credited in favor of the finding is so significant th at a factfinder cou ld not rea sonably
have formed a firm b elief or con v iction t hat the fin ding is true. Id.
Mother ’ s placemen t p referen ce In M other ’ s first affidavit sta ti ng he r pre ference t hat Y.J. be placed with the Bs , she averred that she had reviewed the potential place ment with the Colorado couple and pref erred t he Bs so that Y.J. would be “ placed with[] her brother and hi s a doptive family rather th a n with strangers who li ve several hu n dred miles away. ” A. J. had not been identified as a pote ntial pla cement at that time. Although t h is evidence is legally
sufficient to meet the clear

- and

- convi ncing standard , Moth er ’ s affid avit o f voluntary

re linquishment

–– which a lso stated he r p reference fo r Y.J. ’ s p lacement wit h the Bs but42 which she signed after A.J. had been identified a s a potential p lacement

–– did not state
tha t Mother had reviewed A.J. as a potential placement

. And Smith test ified that
Mother ha d indicated at one time that she preferred pl acement with either the Bs or A.J. Thus, the eviden ce i s factually insufficient under the clear

- and

- convin cing

st andard t o support the trial court ’ s finding of good cause bas ed on a parent ’ s preference. Sibling atta chment maintainable only wit h a particular placement Y.J. has seven hal f siblings : Alan who lives with the Bs, the four oldest who live
in A rizona on the reservation, and two who live close to the Bs in the DFW area. The
tria l co urt was cl ea rly concerned with how best to foster a ll of those sibli ng attachme nts and was faced with an incredibly difficult decision as to how to pr i oritize the impo rtance of each of those attachments to Y.J

. T h e evidence showed that Y.J. was the closest in age to Alan, that she had
visit ed wit h him, and that Alan had formed an att achment to her. Although Y.J. was by all accounts a happy infant w ith no discer nable att achment problems

–– a nd
therefore could be expec ted to “ light [] up ” w hen around other small ch ildren such as
Alan

–– the evidenc e of Alan ’ s atta chment to her sh ows a benefit of that relationship to Y.

J. 33 as she ages. She would also be l iving in a home with , and have daily interaction

33 The Nava jo Nation a ttempts to minim ize this evidence, arguing that prese rvat io n of s iblin g attachments should be a gu iding concern only when two sibli n gs had been li vi ng together before being removed f rom a home. We do not43 with , two nonbiological older siblings

. T h e evidence also sho ws tha t the Bs have
cultivate d contact with Y .J. ’ s other two half si bli ngs that do not liv e in Arizona and
desire to continue that co ntact
. C.B. t estified that the Navajo family had not attempted to contact Alan and that he did no t think Y.J. would have mu ch con ta ct with Alan if she w ere to be placed wit h A.J. Although A.J. testified that it ha d been no problem to come to Texas up until the time o f trial , she had only atten ded trial and visited with Y.J. once

. Ther e was no evidence sh e or the family could afford to maintain cross

- cou nt ry vis its with Alan or her other two DFW

- area siblings

. And Y.J. would n ot be l ivi ng in a home with any of her half sibling s in Arizona.
But the evidenc e also showed that A.J. and Y.J. ’ s oldest half sibling had visited
wit h her once before tria l and that her close Navajo family was exci ted at the pro spe ct of ha ving Y.J. live with A .J

. Althou gh t he trial court found that the Bs coul d best maintain the sibling relationships , it ordered A.J. to pay the cost of Y.J. ’ s travel to
A r izona af ter the age of five and to accompa ny her on all flights during summer
2 0 22

. 34 The evid ence also s howed that eve n though the olde st half s iblings lived about half an hour from A.J., she s aw them frequently and anticipated that Y.J. wo uld see
them every other day. This is in keeping with Smith ’ s te stimony about the impo rtance
agree that the trial court ’ s consideratio n of the im portance of sibl ing re lationships to a child when mak ing a best

- i ntere st determination is so limited.

34 This provision appears to con flict wit h another provision in the order re q u iring the Bs to deliver Y.J. to A.J

. ’ s residence , and for A.J. to s urrender Y. J. at her residence, for the “ four conti n uous week[] ” sum me r 2022 pos session.44 o f fa mily in Nav ajo cultur e. Fina lly, the evidence showed that the Bs wanted to
maintain a relationship between Alan and Y.J. and likely have the fin ancial means to
travel to facilitate v isits. Thus , there is conflicting evidence of a si bling at tachment that

c ould be ma intaine d only through a par ticular placem ent. We hold that th e evidence regarding sibling attachment confl icts such that the
trial court ’ s finding that good c ause existed t o deviate from Section 1915 ’ s placement prefer ences is fact ually insuffici ent. 35 Beca use the evidence is factually insufficien t to support the trial court ’ s good ca use finding under either of the possible considerations

set forth in the Fina l Rule , we concl u de that the tr ial court abused its discretion in

m aking th at finding. We thus susta in the Navajo Nation ’ s fourth issue and o verrule
the Bs ’ fourth issue

. Conclusio n Having sustained the Navajo Nation ’ s fourth issue and the Bs ’ f i fth issue , we

reverse onl y the part of the trial court ’ s June 28, 2019 order appoint ing the Bs and A.J. joint managi ng conservators of Y.J ., and we re mand the case for a new decision

on c onservatorship, or adoption, as the case may be. Although we limit remand to the

conservator s h i p/adoption decision, we do not limit the trial cou rt ’ s rec onsideration of previ ousl y r aise d legal issues that we have not ru led on , such as ICWA ’ s

35 Bec ause we determine d tha t the evidence s up porting pa rent al consent is legally sufficient, we need not addres s the legal sufficiency of t he sibling

- attachment factor.45 cons titutionality , or the trial court ’ s consideration of new iss ues or evidence raised regarding conservator s hip. /s/ Wade Birdwell
Wade Birdwell J ustice Delivered: December 19, 2019