2022 WL 1682422
Only the Westlaw citation is currently available.
SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
Court of Appeals of Texas, Fort Worth.
IN THE INTEREST OF A.H. AND B.H., CHILDREN
No. 02-21-00402-CV
|
Delivered: May 26, 2022
On Appeal from the 360th District Court
Tarrant County, Texas
Trial Court No. 360-639731-18
Before Sudderth, C.J.; Kerr and Womack, JJ.
Memorandum Opinion by Justice Womack

MEMORANDUM OPINION
Dana Womack Justice

I. INTRODUCTION
In this private termination case, pro se appellant L.W. (Mother) appeals the trial court’s order terminating her parental rights to her children A.H. (Aubrey) and B.H. (Brooke) (collectively the Children).1 In four issues and three points,2 Mother complains on appeal that she was not notified or served with certain “important developments” in the case, that the trial court “failed to maintain a clear and concise record,” that the trial court erred by failing to comply with certain requirements found in the Indian Child Welfare Act (ICWA), and that the termination of her parental rights to the Children was not in their best interest. We will affirm.

 

II. BACKGROUND

A. The Children’s Births, Mother’s Drug Problems, the Children’s Removal, and the Children’s Placement with the Simpsons
Mother gave birth to Aubrey in May 2017. Mother had used methamphetamines while pregnant with Aubrey, and Aubrey’s meconium tested positive for methamphetamines and amphetamines. The Department of Family and Protective Services (the Department) investigated the report of Mother’s drug use, and it referred Mother to Family-Based Safety Services. As noted by a Department investigator following that investigation, Mother “successfully completed all services outlined in [the] family plan of service and demonstrated an ability to maintain a clean and sober lifestyle.”

Mother’s ability to demonstrate “a clean and sober lifestyle” was short-lived. In August 2018, the Department was again referred to investigate Mother because of reports that she was using methamphetamines and was leaving Aubrey in the care of others. The Department’s investigator eventually made contact with an individual residing at Mother’s residence, Martin Branson, who informed the investigator that Mother had temporarily given him custody of Aubrey because Mother had given birth to Brooke in May 2018. Branson told the investigator that Mother was nervous that the Department might remove Aubrey and Brooke from Mother’s care. The Department’s investigator later made contact with Mother, who admitted that she had used methamphetamines in January 2018 and had used hydrocodone in May 2018.3 Mother submitted to a urine drug test and a hair-strand drug test in or around September 2018; the urine drug test was negative for illegal substances, while the hair-strand drug test was positive for methamphetamines. Aubrey was also given a hair-strand drug test in September 2018, when she was approximately sixteen months old.4 Aubrey tested positive for methamphetamines.

A month later, Aubrey and Brooke were removed from Mother’s care. Mother asked the Department to look into having the Children placed with either Branson or with one of Mother’s sisters, J.D. or C.C. Both J.D. and C.C. indicated to the Department that they were unable to be a placement for the Children. The Department then looked to place the Children with Branson, but Branson asked that another placement be found. Mother then asked that the Children be placed with a different relative, J.W., and the Department approved J.W. as a potential placement. After the Children stayed with J.W. for a few days, J.W. told the Department that she was unable to serve as a placement for the Children. The Children were eventually placed in a foster home with M.S. and G.S. (the Simpsons) in October 2018.

Mother’s drug problems continued even after the Children were removed from her care. Mother gave birth to a son, Aaron,5 in May 2019. Following his birth, Aaron’s meconium tested positive for methamphetamines and amphetamines. That same month, Mother also tested positive for methamphetamines and amphetamines. Mother admitted to a Department investigator that she had used methamphetamines in February 2019, but she denied using methamphetamines after February 2019.

 

B. Procedural History
In October 2018, following Mother’s and Aubrey’s positive tests for methamphetamines in September, the Department filed a petition to terminate Mother’s and R.H.’s (Father)6 parental rights to the Children. Two weeks later, the Department was appointed as the Children’s temporary managing conservator. Around that same time, Mother and Father completed an “Indian Child & Family Questionnaire” indicating that the Children, Mother, Father, and other family members had possible Native American heritage. The tribes listed as being affiliated with the Children, Mother, Father, and the other family members included the “Chicasaw [sic], Choctaw, Blackfoot [sic], Sue [sic], Apachie [sic], [and] Cheerokee [sic]” tribes.7 In various reports to the trial court, the Department notified the court that the Children had “possible American Indian child status reported by [Mother] and [Father], and is yet to be determined.”

On December 20, 2018, the Department filed a “First Amended Notice of Pending Custody Proceeding Involving Possible Indian Children.” That notice contains a certificate of service, indicating that the Department’s lawyer served thirty-two Indian tribes of the federally recognized Chickasaw, Choctaw, Blackfeet, Sioux, Apache, and Cherokee tribal entities, by certified mail, return receipt requested, of the termination suit involving the Children.8 See BIA Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 86 Fed. Reg. 7554-01 (Jan. 29, 2021). Over the ensuing months, twenty-seven tribal entities sent letters back to the Department. No tribe indicated that the Children were members of the tribe or that the Children were eligible for membership. Further, no tribe indicated a desire to intervene in the proceedings.

In October 2019, the Department amended its petition to also seek the termination of Mother’s and Father’s parental rights to Aaron. In November 2019, the Simpsons intervened in the Department’s lawsuit, asking that Mother’s and Father’s parental rights to Aubrey and Brooke be terminated and that the Simpsons be appointed as Aubrey’s and Brooke’s permanent managing conservators. In their petition, the Simpsons indicated that they desired to adopt Aubrey and Brooke.

In March 2020, the Department filed a motion for monitored return, requesting that Aubrey, Brooke, and Aaron be placed in Mother’s home and returned to Mother while the Department continued to serve as temporary managing conservator over them. In the affidavit attached to the Department’s motion, a Department permanency specialist indicated that Mother had taken hair-strand drug tests in October 2019 and January 2020, and both tests were negative for illegal substances. The permanency specialist also averred that Mother had completed a drug assessment, outpatient services, parenting classes, individual counseling, and that Mother had attended a majority of her visits with the Children. The trial court denied the Department’s motion for monitored return, and it ordered the parties to attend mediation.

In May 2020, the parties entered into a mediated settlement agreement. Pursuant to the mediated settlement agreement, the Department was removed as Aubrey’s, Brooke’s, and Aaron’s temporary managing conservator; Mother and the Simpsons were appointed as Aubrey’s and Brooke’s joint managing conservators; and Mother and another individual were appointed as Aaron’s joint managing conservators. The trial court later signed an agreed order consistent with the parties’ mediated settlement agreement.

In December 2020, the Simpsons filed a petition to modify the parent–child relationship pertaining to the Children in a new lawsuit. In March 2021, the Simpsons filed in that lawsuit a petition to terminate Mother’s and Father’s parental rights to the Children. The Simpsons’ new case was later consolidated into the older case involving the Department, and the Simpsons’ termination petition proceeded to trial.

 

C. The Termination Trial
The termination trial on the Simpsons’ petition took place over one day in October 2021. At the trial, Mother admitted that she had been addicted to methamphetamines in the past but stated that she was no longer addicted to them. Mother also admitted that her former drug use had posed a danger to the Children. Mother testified that when she was eight years old, she was diagnosed with depression, Attention Deficit Hyperactivity Disorder (ADHD), and bipolar disorder. She also testified that she suffered from manic episodes. Mother stated that she takes Depakote and Risperidone for her ADHD.9 During her testimony, Mother averred that Depakote causes false positives for amphetamines and that Risperidone causes false positives for methamphetamines, seeming to imply that some of the positive drug test results in her case were due to her medication rather than illegal drug use.10 Mother also testified that she had successfully completed a sixteen-week rehabilitation program with Nexus in 2019.11 Mother stated that she had not relapsed since completing the Nexus program.

During trial, Mother acknowledged that certain temporary orders in the case required her to pay child support and take drug tests at facilities chosen by the trial court. Mother admitted that she had not paid the child support ordered by the trial court. Mother explained that she had not paid the child support because she had been laid off from her job around January 2021, although she also stated that she had started working again around May 2021. Mother also admitted that she had not taken her drug tests at the facility chosen by the trial court, indicating that she “ha[s] [her] own beliefs. Sometimes they --they mess with the drug testing.” Mother was then asked by the Simpsons’ counsel, “What do you believe is more important when it’s regarding [ ] keeping your parental rights, your own belief, or following a court order?” Mother responded, “Shut the f*** up. My own belief.”

Mrs. Simpson testified at trial that the Children had bonded with her and her husband and that the Children got along well with them. Mrs. Simpson also testified that she was concerned about Mother’s appearance when visiting the Children in December 2020. Mrs. Simpson testified that Mother “had lost a lot of weight, and her mouth had looked like an ashtray” and that there had been marks on Mother’s face.

At the termination trial, Mother was also asked to identify the Indian tribes that she had claimed the Children were eligible for during the case filed by the Department. Mother stated that she had thought that the Children were eligible for “Cherokee and Choctaw, but, apparently, [the Children] aren’t.” Mother later stated that she had also previously claimed that the Children were eligible for the “Blackwood,”12 Apache, and Chickasaw tribes. During trial, the trial court took judicial notice of its file, including the notification letters sent by the Department to the various federally recognized tribal entities and the respective responses of the tribal entities.

 

D. The Termination Order
Following the termination trial, the trial court sent a letter to the parties indicating that it was granting the Simpsons’ request to terminate Mother’s and Father’s parental rights to the Children, and it asked the Simpsons’ attorney to prepare a proposed termination order. The Simpsons’ attorney later sent a proposed termination order to the trial court that included the statement, “The Court finds by clear and convincing evidence the [C]hildren are Indian Children as defined by the Indian Child Welfare Act.” The trial court then issued an order terminating Mother’s and Father’s parental rights to the Children and finding that such termination was in the Children’s best interest. The trial court’s termination order included the language from the proposed termination order stating that the Children are Indian children as defined by ICWA. Mother appealed that termination order.

Upon our review of the record, we questioned whether the statement that the Children are Indian children was mistakenly included in the proposed order and ultimately included in the trial court’s termination order, and we abated the appeal and ordered that the trial court conduct a hearing to determine whether the Children are Indian children under ICWA and ordered the trial court to enter findings of fact and conclusions of law regarding whether the Children are Indian children under ICWA.

After a hearing pursuant to our abatement order, the trial court signed findings of fact and conclusions of law. The findings concluded that the termination order should have stated, “The Court finds by clear and convincing evidence the [C]hildren are not Indian Children as defined by the Indian Child Welfare Act.” The trial court also found that “[n]otice was properly given to all federally recognized tribes pursuant to the ICWA.” The trial court detailed the responses from the various tribal entities, and it found that “no tribe indicated that the [C]hildren are Indian Children or are eligible for membership under ICWA.” The trial court ultimately found and concluded that the Children are not Indian children under ICWA and that ICWA does not apply in this case. The trial court also signed a “Nunc Pro Tunc Order of Termination of Parental Rights.” In that order, the trial court removed the language indicating that the Children are Indian children under ICWA, replacing it with language stating that the Children are not Indian children under ICWA.

 

III. DISCUSSION

A. Mother’s First Point
In her first point, Mother argues that she was not notified or served with “important developments within this case.”13 Mother generally references that she was not notified of “Ex Parte Hearings, Motions[,] Orders, [and] removal of the [C]hildren” and states that “[t]he trial court and [the Simpson’s attorney] ... failed to properly serve [her] in numerous instances.” Mother, however, does not provide us with any record citations to alert us to the documents and hearings that she was allegedly not served with or given notice of, nor does she explain how her purported lack of notice or service caused the rendition of an improper judgment. See Tex. R. App. P. 38.1(i) (requiring that an appellant’s brief contain “appropriate citations ... to the record”). We thus hold that Mother has inadequately briefed her first point. See, e.g ., Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (discussing “long-standing rule” that point may be waived due to inadequate briefing); In re R.S., No. 02-16-00288-CV, 2017 WL 3821861, at *2 (Tex. App.—Fort Worth Aug. 31, 2017, no pet.) (mem. op.) (overruling appellant’s issues where they did not contain record references or citations to authority); Kramer v. Hollmann, No. 02-11-00136-CV, 2012 WL 5869423, at *9 (Tex. App.—Fort Worth Nov. 21, 2012, pet. denied) (mem. op.) (overruling issue for inadequate briefing when it was not supported by argument, record citations, or citations to authority).

In the interest of justice, we note that Mother’s “Statement of Facts” contains references, without providing any record citations, to certain documents that Mother says were not served on her and certain hearings of which Mother says she did not have notice. We will briefly consider these references:
• Mother references an October 22, 2018 “Citation of Service,” and states that it was created without her signature. In our review of the record, we found a “Waiver of Service” dated October 24, 2018, bearing a signature with Mother’s name, signed before a notary, indicating that Mother had been provided a copy of the Department’s termination petition and had agreed to waive the issuance and service of citation. Mother also complains that she was not served with an October 2018 “Petition for Protection of a Child for Conservatorship,” presumably referring to the Department’s termination petition. But again, the record contains a waiver of service bearing a signature with Mother’s name, signed before a notary, indicating that Mother had been provided a copy of the Department’s termination petition—the “Original Petition for Protection of a Child, For Conservator, and for Termination in Suit Affecting the Parent–Child Relationship”—and had agreed to waive the issuance and service of citation.
• Mother claims that she was not served with a document titled “Notice of Removal.” We have found no such document in the appellate record. Attached to Mother’s brief, however, we found two documents titled “Notice of Removal of Children” that appear to be the documents Mother is referencing. But we cannot consider these documents because they were not included in the record on appeal. See, e.g., Robb v. Horizon Cmtys. Improvement Ass’n, Inc., 417 S.W.3d 585, 589 (Tex. App.—El Paso 2013, no pet.) (“The attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal and, therefore, the documents cannot be considered.”); Jones v. Warren, No. 02-12-00154-CV, 2013 WL 4679731, at *2 (Tex. App.—Fort Worth Aug. 29, 2013, no pet.) (mem. op.) (declining to consider documents attached to appellant’s notice of appeal and brief that were not part of the record in the trial court); Reeve v. Citibank (S.D.) N.A., No. 2-04-152-CV, 2005 WL 554791, at *2 (Tex. App.—Fort Worth Mar. 10, 2005, no pet.) (per curiam) (mem. op.) (“But the documents attached to appellee’s brief are not included in the appellate record; thus, we cannot consider them.”). Even if we were to consider these documents, we note that one of the documents purports to contain Mother’s signature acknowledging that she received the “Notice of Removal of Children” on October 23, 2018, and the other document purports to contain Father’s signature acknowledging that he received the “Notice of Removal of Children” on October 23, 2018.
• Mother complains that the Simpsons did not serve her with a “motion for modification and Temporary Restraining Order, dated December 17th, 2020 and December 18th, 2020 found in the court record.” We note that the record contains an “Original Petition to Modify Parent–Child Relationship” filed by the Simpsons on December 16, 2020, and a “Temporary Restraining Order and Notice of Show Cause Hearing with Notice of Hearing for Temporary Orders” dated December 17, 2020. We also note that Mother filed an answer to the Simpsons’ petition to modify on December 29, 2020. A party waives a complaint regarding service of process if she makes a general appearance. Phillips v. Dall. Cnty. Child Protective Servs. Unit, 197 S.W.3d 862, 865 (Tex. App.—Dallas 2006, pet. denied); see also In re D.M.B., 467 S.W.3d 100, 103 (Tex. App.—San Antonio 2015, pet. denied) (“In general, a party’s personal appearance before a trial court indicates a submission to the court’s jurisdiction, constituting a general appearance and therefore, waiving any complaint as to service.”). By filing an answer, Mother made a general appearance and, thus, any complaints she had regarding service of these documents are waived. See In re A.L.H., 515 S.W.3d 60, 87 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (“Filing an answer constitutes a general appearance, thereby dispensing with the need for the issuance and service of citation and waiving any complaints about service.”).
• Mother complains that the termination order was “entered without the authorization of the judge” and that “[n]o hearing was conducted regarding the execution of said order.” We note that the trial court’s termination order was signed by the trial court following a trial.

Finally, we note that Mother filed an answer to the Simpsons’ termination petition, she attended the termination trial, she was represented by counsel at the termination trial, and she testified at the termination trial. Once again, a party waives any complaint regarding service when that party makes a general appearance, as Mother did here. See id.; D.M.B., 467 S.W.3d at 103; Phillips, 197 S.W.3d at 865. We overrule Mother’s first point.

 

B. Mother’s Second Point
In her second point, Mother argues that the trial court “failed to maintain a clear and concise record, which led to [the] maladministration of [j]ustice.” With her second point, Mother, once again, does not provide us with any record citations to alert us to how the trial court “failed to maintain a clear and concise record,” nor does she explain how the trial court’s purported failure caused the rendition of an improper judgment. See Tex. R. App. P. 38.1(i). We thus hold that Mother has inadequately briefed her second point. See, e.g., Fredonia State Bank, 881 S.W.2d at 284–85; R.S., 2017 WL 3821861, at *2; Kramer, 2012 WL 5869423, at *9.

Moreover, Mother does not point us to any place in the record where she presented this argument to the trial court, and we have found no such instance in our review. To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if not apparent from the request’s, objection’s, or motion’s context. Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this, error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). And the complaint on appeal must match that presented in the trial court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). An appellate court cannot reverse based on a complaint not raised in the trial court. Id. Because Mother did not complain to the trial court that it failed to maintain a clear and concise record, she has not preserved her complaint on appeal. We thus overrule Mother’s second point.

 

C. Mother’s Complaints Regarding ICWA (Mother’s Third Point and Mother’s First Three Issues)
In her third point and in her first three issues, Mother complains that the trial court did not comply with certain requirements of ICWA.

 

1. Applicable Law
ICWA is a federal law that applies in state court cases when a court knows or has reason to know that an Indian child is involved in a child custody proceeding. 25 U.S.C.A. § 1912(f);14 In re S.J.H., 594 S.W.3d 682, 687 (Tex. App.—El Paso 2019, no pet.). Congress enacted ICWA in 1978 in response to a “rising concern ... over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 1600 (1989). ICWA sets out minimum requirements with which a state court must comply before terminating parental rights in cases involving Indian children. In re A.M., No. 02-21-00313-CV, 2022 WL 325473, at *2 (Tex. App.—Fort Worth Feb. 3, 2022, no pet.) (mem. op.) (first citing 25 U.S.C.A. § 1912(a); and then Doty-Jabbaar v. Dallas Cnty. Child Protective Servs., 19 S.W.3d 870, 874 (Tex. App.—Dallas 2000, pet. denied)). No termination of parental rights may be ordered in such a proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of a qualified expert witness, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. Id. (citing 25 U.S.C.A. § 1912(f)).

As defined by ICWA, “child custody proceeding” means and includes foster care placement, termination of parental rights, preadoptive placement, and adoptive placement. 25 U.S.C.A. § 1903(1). An “Indian child” is defined by ICWA as an “unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” Id. § 1903(4). ICWA, however, does not define what constitutes being a “member” or “being eligible for membership.” See id.; In re D.C.B., No. 12-21-00175-CV, 2022 WL 399141, at *1 (Tex. App.—Tyler Feb. 9, 2022, no pet.) (mem. op., not designated for publication). Each tribe has its own criteria for determining tribal membership. D.C.B., 2022 WL 399141, at *1. Furthermore, “ICWA does not apply simply based on an allegation of tribal ancestry; there must be a political relationship with a federally recognized Indian [t]ribe.” In re R.J., No. 12-20-00201-CV, 2020 WL 7042607, at *4 (Tex. App.—Tyler Nov. 30, 2020, pet. denied) (mem. op.).

ICWA imposes a duty on parties seeking parental rights termination to notify the relevant tribe when the trial court knows or has a reason to know that the child is an Indian child. In re T.R., 491 S.W.3d 847, 850 (Tex. App.—San Antonio 2016, no pet.) (citing 25 U.S.C.A. § 1912(a)). Circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian child include when “(i) Any party to the case ... informs the court that the child is an Indian child .... (ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child.” In re R.R., 294 S.W.3d 213, 219 (Tex. App.—Fort Worth 2009, no pet.) (citing BIA Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,586 (Nov. 26, 1979)).

When a state court has reason to know that a child involved in a child custody proceeding might be subject to ICWA, the court shall seek verification of the child’s status from either the Bureau of Indian Affairs or the child’s tribe. A.M., 2022 WL 325473, at *2 (citing BIA Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,586). The tribal entities must be notified by registered mail with return receipt requested. 25 U.S.C.A. § 1912(a). Substantial compliance with these notice provisions will not suffice, A.M., 2022 WL 325473, at *2; R.R., 294 S.W.3d at 224, and a violation of the ICWA notice provisions may be cause for a later invalidation of custody or termination proceedings. D.C.B., 2022 WL 399141, at *2 (citing 25 U.S.C.A. § 1914). “Once proper notice is given in compliance with the dictates of [ICWA], however, if the tribe fails to respond ... the burden shifts to the party asserting the child’s status as Indian to show that [ICWA] applies.” A.M., 2022 WL 325473, at *2 (citing R.R., 294 S.W.3d at 226).

The trial court’s application of ICWA is reviewed de novo, as is the question of whether ICWA applies to a proceeding. In re A.E., No. 02-19-00173-CV, 2019 WL 4784419, at *9 (Tex. App.—Fort Worth Oct. 1, 2019, pet. denied) (mem. op.); T.R., 491 S.W.3d at 850.

 

2. Mother’s Third Point and First Issue
In her third point and first issue, Mother argues that the trial court erred because it had reason to believe that the Children are Indian children pursuant to ICWA and that it did not ensure that proper notice was given to the pertinent Indian tribes pursuant to ICWA.

Here, the clerk’s record contains evidence that the Department served thirty-two Indian tribes of the federally recognized Chickasaw, Choctaw, Blackfeet, Sioux, Apache, and Cherokee tribal entities, by certified mail, return receipt requested, with notice of the termination suit involving the Children. See BIA Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 86 Fed. Reg. 7554-01 (Jan. 29, 2021). While there is some distinction between registered mail and certified mail,15 courts applying ICWA often treat the terms interchangeably, and courts have held that proper notice under ICWA can be given by certified mail. See D.C.B., 2022 WL 399141, at *3 (affirming trial court’s finding that Department sent “proper notices” to Indian tribes where notices were sent by certified mail, return receipt requested); E.A.H. v. Tex. Dep’t of Fam. and Protective Servs., No. 03-17-00816-CV, 2018 WL 2451824, at *2 (Tex. App.—Austin June 1, 2018, no pet.) (mem. op.) (stating that Department sent notice required by ICWA to tribe when it sent notice by certified mail, return receipt requested); In re V.L.R., 507 S.W.3d 788, 794 (Tex. App.—El Paso 2015, no pet.) (“The notices [to the tribes] were sent by certified mail, return receipt requested, as required by ICWA.”); R.R., 294 S.W.3d at 224 (stating that ICWA requires notice to be provided by “certified mail, return receipt requested”); see also In re H.T., 343 P.3d 159, 215–16 (Mont. 2015) (recognizing that “there are some differences between registered and certified mail” but stating that “[f]or the purpose of indicating that [tribe] was given notice, however, the two are virtually identical,” and holding that notice sent by certified mail, return receipt requested met ICWA’s notice requirements); In re S.G.V.E., 634 N.W.2d 88, 93 n.4 (S.D. 2001) (holding that notice by certified mail to tribe met ICWA notice requirements even where there was no evidence that tribe received notice by registered mail).

The clerk’s record also contains evidence that the tribes received the Department’s notice, as twenty-seven tribal entities sent letters back to the Department indicating that the Children are not Indian children or are not eligible for tribal enrollment. That five of the tribal entities did not respond does not invalidate proper service under ICWA.16 See A.M., 2022 WL 325473, at *2 (holding that if a tribe fails to respond to proper ICWA notification, the burden shifts to the party asserting the child’s status as Indian to show that ICWA applies); R.R., 294 S.W.3d at 226 (same). And while the notices had been sent in the Department’s termination case, no new notices needed to be given where there was no evidence before the trial court that the Children’s status as Indian children had changed.17 See R.J., 2020 WL 7042607, at *4 (holding that “[b]ecause the tribes at issue had previously determined that the children were not eligible for membership based on [mother’s] assertion of Native American heritage, and no evidence demonstrated that [mother’s] status with the tribes had changed, the children are not Indian children under [ICWA]” and holding that because the trial court had properly found that the children were not Indian children under ICWA in a previous case, “the notice requirements were not triggered by the new case”).

Based on these facts, the trial court found that proper notice was sent to the tribes identified by Mother and Father, found that no tribe had indicated that the Children are Indian children or are eligible for membership under ICWA, and concluded that the Children are not Indian children under ICWA. We conclude that the trial court correctly determined that proper notice was sent to the various tribal entities and that the Children are not Indian children under ICWA. See A.M., 2022 WL 969782, at *1 (overruling appellants’ complaints that the trial court failed to ensure compliance with ICWA where the trial court found that notice had been properly sent to six Indian tribes and that five of the six tribes responded to the notice by stating that the subject child was not enrolled nor eligible for enrollment in the respective tribe and the “sixth tribe did not respond to the notice after receiving it by certified mail”); D.C.B., 2022 WL 399141, at *3 (holding that because the Department sent proper notices and found that the subject child was not an Indian child, “the trial court complied with the ICWA requirements”).

We overrule Mother’s third point and first issue.

 

3. Mother’s Second Issue
In her second issue, Mother argues, “Burden of Proof lies on the petitioning party to determine that continued custody of the Appellant could result in ‘serious emotional or physical damage to the child.’ ” We liberally construe this argument to mean that the trial court’s judgment should be reversed because the trial court did not comply with Section 1912(f) of ICWA. See 25 U.S.C.A § 1912(f). Section 1912(f) requires that before a trial court terminates parental rights in a case involving an Indian child, the trial court must first make a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. Id. But, Section 1912(f) only applies to cases subject to ICWA. See id. And, here, the trial court determined that the Children are not Indian children subject to ICWA, and we have held that the trial court did not err in making that determination. Accordingly, we overrule Mother’s second issue.

 

4. Mother’s Third Issue
In her third issue, Mother argues that the trial court “did not apply the correct legal standard for the termination of the parent[–]child relationship, as found in [ICWA].” We liberally construe this argument to mean that the trial court’s judgment should be reversed because the trial court applied the standard of clear and convincing evidence for the termination of Mother’s parental rights to the Children rather than the standard of proof beyond a reasonable doubt. See In re X.E.V., No. 08-20-00160-CV, 2020 WL 6867068, at *1 (Tex. App.—El Paso Nov. 23, 2020, no pet.) (mem. op.) (“Substantively, [ICWA] resets the standard of proof in termination cases from clear and convincing evidence to beyond a reasonable doubt.”). But ICWA’s requirement of proof beyond a reasonable doubt only applies to cases subject to ICWA. See 25 U.S.C.A § 1912(f); X.E.V., 2020 WL 6867068, at *1. And, here, the trial court determined that the Children are not Indian children subject to ICWA, and we have held that the trial court did not err in making that determination. Accordingly, we overrule Mother’s third issue.

 

D. Mother’s Fourth Issue
In her fourth issue, Mother challenges the trial court’s finding that termination of her parental rights to the Children was in the Children’s best interest.

 

1. Standard of Review
For a trial court to terminate a parent–child relationship, the party seeking termination must establish, by clear and convincing evidence, that (1) the parent’s actions satisfy just one of the many predicate grounds listed in Family Code Section 161.001(b)(1), and (2) termination is in the child’s best interest under Section 161.001(b)(2).18 Tex. Fam. Code Ann. § 161.001(b); In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is clear and convincing if it “will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007.

To determine whether the evidence is legally sufficient in parental-termination cases, we look at all the evidence in the light most favorable to the challenged findings—here the best-interest finding—to determine whether a reasonable factfinder could form a firm belief or conviction that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); see Tex. Fam. Code Ann. § 161.001(b)(2). We assume that the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable factfinder could have done so. J.P.B., 180 S.W.3d at 573. We disregard all evidence that a reasonable factfinder could have disbelieved, and we consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to the finding if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id. The factfinder is the sole judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

We must perform “an exacting review of the entire record” in determining the factual sufficiency of the evidence supporting the termination of a parent–child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due deference to the factfinder’s findings and do not supplant them with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to decide whether a factfinder could reasonably form a firm conviction or belief that the termination of Mother’s parental rights to the Children was in the Children’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). If the factfinder reasonably could form such a firm conviction or belief, then the evidence is factually sufficient. In re C.H., 89 S.W.3d 17, 18–19 (Tex. 2002).

 

2. Applicable Law
Although we generally presume that keeping a child with a parent is in the child’s best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest analysis is child-centered, focusing on the child’s well-being, safety, and development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). Evidence that is probative of the predicate grounds under Section 161.001(b)(1) may also be probative of best interest under Section 161.001(b)(2). In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); C.H., 89 S.W.3d at 28. We also consider the evidence in light of the following nonexclusive factors that the factfinder may apply in determining the child’s best interest:
• the child’s desires;
• the child’s emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the child’s best interest;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the parent’s acts or omissions that may indicate that the existing parent-child relationship is not a proper one; and
• the parent’s excuse, if any, for the acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249; E.N.C., 384 S.W.3d at 807. These factors do not form an exhaustive list, and some factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may suffice in a particular case to support a finding that termination is in the child’s best interest. Id. On the other hand, the presence of paltry evidence relevant to each factor will not support such a finding. Id.; In re C.G., No. 02-20-00087-CV, 2020 WL 4518590, at *7 (Tex. App.—Fort Worth Aug. 6, 2020, pet. denied) (mem. op.); In re J.B., No. 02-18-00034-CV, 2018 WL 3289612, at *4 (Tex. App.—Fort Worth July 5, 2018, no pet.) (mem. op.).

 

3. Best-Interest Analysis
As to the Children’s desires, Aubrey was four and Brooke was three at the time of trial. Neither Aubrey nor Brooke testified at trial. When children are too young to express their desires, the factfinder may consider whether they have bonded with their current caregiver and have spent minimal time with the parent. In re J.G., No. 02-21-00020-CV, 2021 WL 2966165, at *9 (Tex. App.—Fort Worth July 15, 2021, no pet.) (mem. op.); In re J.V., No. 02-19-00392-CV, 2020 WL 1540865, at *6 (Tex. App.—sFort Worth Apr. 1, 2020, no pet.) (mem. op.). Here, there was evidence that the Children had bonded with the Simpsons and that Mother had spent minimal time with the Children since removal. The trial court was entitled to find that this factor weighed in favor of terminating Mother’s parental rights to the Children.

As to the Children’s emotional and physical needs now and in the future and the emotional and physical danger to the Children now and in the future, the record reflects that Mother has a history of drug problems, specifically with methamphetamines. Mother used methamphetamines while pregnant with Aubrey, and Aubrey’s meconium tested positive for methamphetamines and amphetamines. Mother’s drug problems did not stop with Aubrey’s birth. Mother admitted to a Department investigator that she had used methamphetamines in January 2018, while she was pregnant with Brooke. Mother also tested positive for methamphetamines in September 2018, as did Aubrey, after which the Children were removed from Mother’s care. Mother’s drug problems did not stop with the Children’s removal. When Mother gave birth to Aaron in May 2019, both she and Aaron tested positive for methamphetamines and amphetamines. Mother admitted to a Department investigator that she had used methamphetamines in February 2019, and she admitted at trial that her drug use had posed a danger to the Children.

While there was evidence that Mother had not used illegal drugs since attending the Nexus program in 2019, there was also evidence that Mother had refused to submit to drug testing at the facility ordered by the trial court. There was also evidence that Mother’s health had deteriorated by December 2020, with Mrs. Simpson testifying that Mother “had lost a lot of weight, and her mouth had looked like an ashtray,” and that there had been marks on Mother’s face. A factfinder may measure a parent’s future conduct by her past conduct. In re R.H., No. 02-19-00273-CV, 2019 WL 6767804, at *5 (Tex. App.—Fort Worth Dec. 12, 2019, pet. denied) (mem. op.); In re E.M., 494 S.W.3d 209, 226 (Tex. App.—Waco 2015, pet. denied). Here, the trial court could have inferred from Mother’s past history of drug use that she did not have the ability to meet the Children’s physical and emotional needs in the future. See R.H., 2019 WL 6767804, at *5 (“The trial court could have inferred from [father’s] past history of instability, criminal conduct, and drug use that [father] did not have the ability to meet [child’s] physical and emotional needs in the future.”). The trial court was entitled to find that this factor weighed in favor of terminating Mother’s parental rights to the Children.

As to Mother’s plans for the Children and the Simpsons’ plans for the Children, the record reflects that the Simpsons plan to adopt the Children. The record was less clear on Mother’s plans for the Children, although it indicates that Mother had not made court-ordered child support payments and that Mother had difficulty keeping a job, even after her completion of the Nexus program. The trial court was entitled to find that this factor weighed in favor of terminating Mother’s parental rights to the Children.

As to Mother’s acts or omissions that may indicate that the existing parent–child relationship is not a proper one and any excuses for Mother’s acts or omissions, the record reflects, as detailed above, that Mother used illegal drugs during her pregnancies with Aubrey, Brooke, and Aaron, and that Mother continued to use illegal drugs even after Aubrey and Brooke had been removed from her care. At trial, Mother seemed to imply that some of her positive drug tests were the result of her use of medication for ADHD, although Mother also admitted to past use of methamphetamines. The trial court could have chosen not to believe Mother’s testimony that her medication resulted in false positives for illegal drug use. See In re Z.L.W., No. 01-12-00736-CV, 2013 WL 396270, at *4 (Tex. App.—Houston [1st Dist.] Jan. 31, 2013, no pet.) (mem. op.) (holding that trial court “was not required to believe the mother’s assertion that the [drug] test produced a false positive”). The trial court was entitled to find that this factor weighed in favor of terminating Mother’s parental rights to the Children.

 

4. Best-Interest Conclusion
Viewing the evidence in the light most favorable to the trial court’s best-interest finding, we hold that a reasonable factfinder could have reasonably formed a firm conviction or belief that termination of the parent–child relationship between Mother and the Children was in the Children’s best interest, and we therefore hold that the evidence is legally sufficient to support the trial court’s best-interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2); J.P.B., 180 S.W.3d at 573. Based on our exacting review of the entire record and giving due deference to the factfinder’s findings, we likewise conclude that the evidence is factually sufficient to support the trial court’s best-interest finding. See C.H., 89 S.W.3d at 18–19. Accordingly, we overrule Mother’s fourth issue.

 

IV. CONCLUSION
Having overruled Mother’s three points and four issues, we affirm the trial court’s termination order.

All Citations
Not Reported in S.W. Rptr., 2022 WL 1682422

Footnotes
1	To protect the identities of the Children, we use aliases to refer to them, their parents, and others connected to this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2	It is unclear what distinction, if any, Mother makes between an “issue” and a “point.”
3	It is unclear from the record whether Mother was prescribed hydrocodone in May 2018. At the termination trial, Mother testified that she had been prescribed hydrocodone in 2019 following a dog bite that allegedly caused her to contract rabies.
4	Brooke, who was approximately four months old at the time, did not have enough hair to be tested for drugs.
5	Aaron is not part of the termination order challenged on appeal. When we refer to the “Children” in this opinion, we are referring to Aubrey and Brooke but not Aaron.
6	The order terminating Mother’s parental rights to the Children also terminated Father’s parental rights to the Children. Father did not file a notice of appeal in this case, although the notice of appeal filed by Mother indicated that she was filing the appeal on both her and Father’s behalf. A person can only represent herself pro se and cannot litigate the rights of others in a representative capacity. See Tex. R. Civ. P. 7; Funmilayo v. Aresco, LP, No. 05-20-00492-CV, 2021 WL 5578019, at *4 (Tex. App.—Dallas Nov. 30, 2021, no pet.) (mem. op.). As such, a notice of appeal filed by a non-attorney in a representative capacity is ineffective. Funmilayo, 2021 WL 5578019, at *4; Kaminetzky v. Newman, No. 01-10-01113-CV, 2011 WL 6938536, at *2 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem. op.). Even if we were inclined to construe the notice of appeal filed by Mother as including Father’s appeal of the termination order, Father has not filed a brief. By letter dated February 14, 2022, we informed both Mother and Father that the appellant’s briefs in this case were late, and we told them that the appeal could be dismissed for want of prosecution if they did not file, by February 24, 2022, a brief along with a motion reasonably explaining the failure to file a brief and the need for an extension. While Mother filed a brief and a motion for extension, Father did not. Thus, Father has presented nothing for us to review on appeal.
7	The questionnaire also stated that “our tribe goes back to the biblical times tribe of Esau.”
8	To that end, the Department’s lawyer certified that each of the respective tribes had been served by “CMRRR,” and a unique twenty-digit certified mail number was listed next to each of the tribes. The notice also indicated that the Department’s lawyer gave notice, by certified mail, return receipt requested, to the Anadarko Regional Director, Bureau of Indian Affairs. See 25 C.F.R. § 23.11(b)(4).
9	At one point during her testimony, Mother stated that she had stopped taking her medicine “[a] few times” and that “[n]othing” happened when she stopped taking her medicine. Mother later testified that she had consistently taken her medicine for the three years prior to trial.
10	At another point in the trial, Mother admitted that Aubrey had tested positive for methamphetamines because Mother “was on methamphetamines.” Mother, however, later testified that she did not use drugs while Aubrey was a baby, indicating that a roommate who lived next door to Mother and Aubrey smoked methamphetamines.
11	Mother testified that Nexus is “a rehabilitation [program] for mothers that are struggling from addi[c]tion.”
12	Presumably, Mother was referring to the Blackfeet tribe when she stated “Blackwood.”
13	We note that the appellees in this case, the Simpsons, did not file an appellate brief. Indeed, by letter dated April 20, 2022, the Simpsons’ attorney informed us that the Simpsons would not be filing a brief.
14	We note that portions of ICWA were recently declared unconstitutional by the Fifth Circuit. See Brackeen v. Haaland, 994 F.3d 249, 268–69 (5th Cir. 2021). We also note that on February 28, 2022, the United States Supreme Court granted certiorari in Brackeen. 142 S. Ct. 1205 (2022). Because certiorari has been granted in Brackeen and because the constitutionality of ICWA was not challenged or addressed by the parties here, we do not reach any issue related to the constitutionality of ICWA in this appeal. See In re D.E.D.I., 568 S.W.3d 261, 262 (Tex. App.—Eastland 2019, no pet.) (declining to address any issue relating to the constitutionality of ICWA where that issue was not challenged or addressed in the trial court). Nor is this court’s opinion to be read to express any viewpoint as to Brackeen or the constitutionality of ICWA. See id.
15	Certified mail is “[m]ail for which the sender requests proof of delivery in the form of a receipt signed by the addressee.” Mail, Black’s Law Dictionary (11th ed. 2019). Registered mail is “[m]ail that the U.S. Postal Service records at the time of mailing and at each point on its route so as to guarantee safe delivery.” Id.
16	In her brief, Mother references a “letter from the Chickasaw Nation” filed in the trial court on February 25, 2019, and argues that the letter indicates that the Chickasaw Nation “did not have enough information to determine the heritage of the [C]hildren.” In that letter, a representative of the Chickasaw Nation stated that because it was “unable to locate the [C]hildren’s ancestors in [its] records,” it “determined that the [C]hildren are not ‘Indian Children’ as defined by [ICWA] as it pertains to the Chickasaw Nation.” That letter does nothing to call into doubt ICWA compliance; indeed, if a tribe fails to determine a child’s membership or eligibility in a tribe after being given proper notice, the burden shifts to the party asserting the child’s status as Indian to show that ICWA applies. A.M., 2022 WL 325473, at *2; R.R., 294 S.W.3d at 226.
17	Mother attaches certain documents to her brief that she says “[n]ow ... establish[h] strong proof that the [C]hildren are in fact Native American.” These documents consist largely of ancestry.com records that reference certain individuals’ affiliation with certain Indian tribes. But we cannot consider these documents because they were not included in the record on appeal. See Robb, 417 S.W.3d at 589; Jones, 2013 WL 4679731, at *2; Reeve, 2005 WL 554791, at *2. Even if we were to consider these documents, it is unclear how exactly the individuals referenced in the documents relate to the Children in this case, and there is no sworn proof indicating as such.
18	Mother does not challenge the finding of predicate grounds for termination.