Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act, STATE of Texas, The YAVAPAI-APACHE TRIBE, Relator, v. The Honorable Berta MEJIA, Judge, 315th Judicial District, Harris County, Texas, Respondent.

Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act, Texas Cases

(Cite as: 906 S.W.2d 152)

Court of Appeals of Texas,

Houston (14th Dist.).

The YAVAPAI-APACHE TRIBE, Relator,

The Honorable Berta MEJIA, Judge, 315th Judicial District, Harris County,

Texas, Respondent.

No. 14-94-01052-CV.

Aug. 24, 1995.

*157 Rodolfo Mares, Jr., Houston, for appellant.

Brenda K. Schwartz, Bruce Hughes, William S. Cox, Miriam J. Riskind, Scott R. McLaughlin, Roger Bridgwater, Houston, for appellees.

*158 Before LEE, AMIDEI and EDELMAN, JJ.

OPINION

LEE, Justice.

On October 25, 1994, the Yavapai-Apache Tribe ("the Tribe"), relator, filed a motion for leave to file petition for writ of mandamus in this Court. See Tex.Gov't Code Ann. § 22.221 (Vernon 1988). We granted relator's motion for leave to file on November 8, 1994. On October 6, 1994, the Honorable Berta Mejia, respondent, entered an order in trial court cause number 82282 (consolidated with cause number 93-013623), styled In the Interest of M.Z.W., M.C.J., and M.T.W., Minors. In that order, Judge Mejia denied relator's motion to transfer jurisdiction to the Yavapai-Apache Tribal Court. Relator asks this court to order Judge Mejia to rescind her order of October 6, 1994, and order her to enter a new order transferring the cause to the Yavapai-Apache Tribal Court. We deny relator's petition for writ of mandamus.

ISSUE

This mandamus action involves a dispute over the appropriate jurisdiction for a child custody case involving three Native American children. It requires interpretation of section 1911(b) of the Indian Child Welfare Act of 1978 [hereinafter "ICWA" or "the Act"]. See 25 U.S.C.A. § 1911(b) (1983). The question to be determined is whether the trial court abused its discretion in refusing the Tribe's request to transfer jurisdiction to the Yavapai-Apache Tribal Court.

THE PARTIES

Yvette Rita Johnson ("Johnson") is the natural mother of the three children who are the subject of this dispute: M.C.J. ("Michael"), age five; M.T.W. ("Mark"), age four; and M.Z.W. ("Matthew"), age two. She is a full-blooded member of the Yavapai-Apache Tribe. It is undisputed that the children, Michael, Mark, and Matthew, are eligible for enrollment with the Tribe. Johnson currently resides at the Tonto-Apache Tribe Reservation in Payson, Arizona. Monterey Cayton White, IV ("White") is the father of the two youngest children, Mark and Matthew. The father of the oldest child is unknown. Michelle Jenkins is the aunt of White. Charles Jenkins is the husband of Michelle Jenkins. The Jenkins are residents of Harris County. The Tribe is a federally recognized Indian tribe as defined by the ICWA. See 25 U.S.C.A. § 1903(8) (1983). The Yavapai-Apache Reservation is located in Camp Verde, Arizona.

PROCEDURAL HISTORY

The initial suit in this case was filed March 12, 1993, in the 315th Judicial District Court under cause number 82282. It was brought by the Harris County Children's Protective Services ("CPS") and styled "SUIT FOR THE PROTECTION OF A CHILD IN AN EMERGENCY AND ORIGINAL PETITION IN SUIT TO AFFECT PARENT-CHILD RELATIONSHIP." The subject of this first action filed by CPS was the youngest child, Matthew. CPS sought to have itself appointed as Managing Conservator of Matthew; alleging there was a serious and immediate question concerning Matthew's welfare. On March 24, 1993, CPS filed its "FIRST AMENDED PETITION IN SUIT TO AFFECT PARENT-CHILD RELATIONSHIP." In its first amended petition, CPS suggested that the court appoint either CPS or Michelle Jenkins as Matthew's managing conservator. Ultimately, Matthew was placed in the Jenkins' home by the CPS which had been appointed temporary managing conservator of Matthew. [FN1]

FN1. This fact was noted in the Jenkins' "ORIGINAL PETITION IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP." That petition did not concern Matthew; rather, it concerned Michael and Mark.

The second suit affecting the parent-child relationship concerning the other two children, Michael and Mark, was filed on March 18, 1993, in the 308th Judicial District Court under cause number 93-013623. The second suit was brought by Michelle and Charles Jenkins, real parties in interest in this mandamus action. In their petition, the Jenkins asked the court to appoint them sole managing conservators of Michael and Mark.

The Tribe, having received notice pursuant to 25 U.S.C.A. § 1912(a), intervened and on June 11, 1993, filed a motion to transfer *159 jurisdiction in the 308th Judicial District Court in cause number 93- 013623, the case concerning Michael and Mark. On August 25, 1993, the Tribe filed a similar motion in the 315th Judicial District Court in cause number 82282, the case concerning Matthew. These motions were filed pursuant to the ICWA and based specifically on section 1911(b).

In October of 1993, White executed a statement of paternity and sought a decree adjudicating Mark and Matthew as his biological children. The trial court signed a decree of paternity on March 8, 1994, adjudicating Mark and Matthew as the children of White. In the decree, the court named White the possessory conservator but found good cause to deny any specific periods of possession at the time. The court further ordered White to pay child support for the children to the Jenkins.

On November 3, 1993, Judge Mejia signed an order consolidating the two cases under the older and lower case number, thereby placing both cases in the 315th Judicial District.

Following the consolidation, the Tribe filed its "RENEWED MOTION TO TRANSFER JURISDICTION AND TO DISMISS THE CASE" on January 14, 1994. On August 26, 1994, the motion to transfer, as consolidated, was heard in the 315th Judicial District. On October 6, 1994, the trial court denied the Tribe's motion. In its order, the trial court made the following findings:

The Court, having examined the pleadings and heard the evidence and argument of counsel, finds by clear and convincing evidence, that:

1. The children the subject of this suit are Indian children, as described under the Indian Child Welfare Act;

2. The children were not domiciles of the reservation, nor did they reside within the reservation at the time of placement or at any other time, but reside in Texas;

3. The 315th Judicial District Court of Harris County, Texas, has concurrent jurisdiction pursuant to the Indian Child Welfare Act;

4. Proper notice has been given to all parties and the children's mother's tribe;

5. MONTEREY CAYTON WHITE, IV, a parent of two of the children the subject of this suit, objects to the transfer of these proceedings to the Tribal Court;

6. Good cause exists to deny the transfer of these proceedings to the Tribal Court;

7. It is in the best interest of the children to retain jurisdiction in the 315th Judicial District Court of Harris County, Texas;

8. The Court has taken judicial notice of the contents of the Court's file;

9. That YVETTE RITA JOHNSON, has an extensive history of substance abuse, neglect of the children, and of abandonment of the children;

10. That the children have resided in a stable environment since April of 1993;

11. The children are ages 2, 4 and 6 and have had little or no contact with the mother's tribe, and only three months contact with another tribe during their lifetime;

12. This suit affecting the parent-child relationship could not be adequately presented to the Tribal Court without undue hardship to the parties and witnesses, because the bulk of witnesses are located in Harris County, Texas;

13. It would not be in the best interest of the children to have separate and distinct hearings, with the possibility that the results would be that the children might be separated;

14. That YVETTE RITA JOHNSON is in agreement that the children should not be separated.

Based on these findings, the trial court denied the Tribe's motion to transfer jurisdiction.

On October 25, 1994, the Tribe filed a motion for leave to file petition for writ of mandamus in this court. The Tribe asked this court to order Judge Mejia to rescind her order of October 6, 1994, and direct her *160 to enter an order transferring the case to the Yavapai-Apache Tribal Court. We granted the Tribe's motion for leave to file, and oral argument was held before this court on February 14, 1995.

STANDARD OF REVIEW

In a mandamus proceeding, the court must determine whether the relator has an adequate remedy by appeal, and whether the trial court abused its discretion in entering the order complained of. Plaza Court, Ltd. v. West, 879 S.W.2d 271, 275 (Tex.App.--Houston [14th Dist.] 1994, orig. proceeding). The burden of showing an abuse of discretion as well as the inadequacy of a remedy by appeal is placed on the relator, the party seeking the writ. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994). This burden is "a heavy one." Id. (quoting Lutheran Social Serv., Inc. v. Meyers, 460 S.W.2d 887, 889 (Tex.1970)).

Mandamus will not issue when there is an adequate remedy by appeal because mandamus is intended to be an extraordinary remedy available only in limited circumstances. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). A writ of mandamus will issue only in situations involving manifest and urgent necessity. Id.

A trial court clearly abuses its discretion if it reaches a decision "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Id. at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)). Put another way, a trial court abuses its discretion if it acts without reference to any guiding rules or principles of law. Plaza Court, 879 S.W.2d at 275 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). Mere error in judgment does not constitute an abuse of discretion. Aktienggesellschaft v. Kirk, 859 S.W.2d 651, 652 (Tex.App.--Eastland 1993, orig. proceeding) (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)). A determination of factual matters is committed to the sound discretion of the trial court, and in the resolution of factual issues, the appellate court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839. However, the appellate court's review of a trial court's determination as to what the law is, or its application of the law to the facts is much less deferential. Id. at 840. A trial court's failure to analyze the law properly or apply it to the facts correctly constitutes an abuse of discretion. Id.

Application of the Standard of Review.

The first question we must resolve is whether the situation before us is proper for mandamus review. Then, if the case is subject to mandamus review, we must decide whether the trial court abused its discretion.

The Texas Supreme Court has frequently held that an appeal is inadequate to protect the rights of children and parents in family law situations. See, e.g., Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987). See also Hutchings v. Biery, 723 S.W.2d 347, 350 (Tex.App.--San Antonio 1987, orig. proceeding). "Justice demands a speedy resolution of child custody and child support issues." Id. Thus, because this case involves the rights of parents and children, it is subject to review by mandamus.

The next question is whether the trial court abused its discretion by refusing to transfer the case to the Yavapai-Apache Tribal Court. Relator contends the trial court abused its discretion in denying its motion to transfer because in its determination of whether "good cause" existed to deny transfer to the Tribal Court, the trial court considered: (1) whether this suit could be adequately presented to the Tribal Court without undue hardship to the parties and witnesses; (2) the "best interests of the children;" and (3) the contacts of the children with the Tribe. The Tribe also argues the trial court abused its discretion in denying the transfer because it misinterpreted the ICWA by finding that White was a "parent" with the power to object to the transfer as to Mark and Matthew. The trial court found "good cause" based on numerous separate grounds. If any one of these grounds is an appropriate consideration, the trial court did not abuse its discretion in denying the Tribe's motion to transfer. Apart from the *161 "good cause" findings, if the trial court correctly determined that White was a "parent" under the ICWA, she properly denied the motion to transfer as to Mark and Matthew.

ANALYSIS

1. Historical Overview of the Indian Child Welfare Act.

Before 1968, the United States followed an "assimilation" policy with regard to Indians. Note, Indian Child Welfare: A Jurisdictional Approach, 21 ARIZ.L.REV. 1123, 1123 (1979) (citing Act of August 15, 1953, Pub.L. No. 83- 280, ch. 505, 67 Stat. 588-90 (current version at 18 U.S.C.A. § 1162 (1983); 28 U.S.C.A. § 1360 (1983))). See also Estate of Johnson, 125 Cal.App.3d 1044, 1048, 178 Cal.Rptr. 823, 826 (Cal.Ct.App.1981), cert. denied by Cory v. Campbell, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982) (recognizing that assimilation policy existed in United States in the 1900s). In other words, the United States sought to encourage Indians to become part of mainstream American culture. In the late 1950s and early 1960s, however, federal policy began to shift. See, e.g., Felix S. Cohen, Handbook of Federal Indian Law 180 (1982). The Indian Civil Rights Act of 1968 reversed the assimilation policy, recognizing the importance of the preservation of Indian society and culture. See 25 U.S.C.A. §§ 1301-1341 (1983).

The preservation of Indian society and culture clearly involves Indian children, for children necessarily sustain the culture of a people from one generation to the next. In the 1970s, Congress conducted an investigation and held hearings on the "alarmingly" high rate of removal of Indian children from their native homes in child welfare cases. See 25 U.S.C.A. § 1901(4). More often than not, when a state welfare agency received reports or investigated allegations of abuse or neglect and those reports involved Indians, the child would be removed. Hearings conducted before the Senate Committee on Indian Affairs in 1974 revealed a pattern of discrimination against American Indians in child welfare and child custody matters. In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz. 202, 635 P.2d 187, 188 (Ariz.Ct.App.1981), cert. denied by Catholic Social Services of Tucson v. P.C., 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). Testimony before the Senate revealed that for years, large numbers of Indian children had been removed from their homes and reservations and placed in non-Indian homes. [FN2] Id. The testimony also showed that many of the removals were unwarranted and were based on the fact that the officials involved failed to show any deference to Indian "cultural norms." Id. The removals deprived the tribes of their most important resource, their children, and deprived the children of their heritage. Id. In response to this evidence, Congress passed the Indian Child Welfare Act of 1978 in an effort to reverse the erosion of Indian family life. See id. Congress stated the policy behind the Act in section 1902:

FN2. Statistical evidence presented by William Byler, executive director of the Association on American Indian Affairs, and other witnesses showed that approximately 85% of the Indian children removed from their homes were placed in non-Native American homes. Jeanne Louise Carriere, Representing the Native American: Culture, Jurisdiction, and the Indian Child Welfare Act, 79 IOWA L.REV. 585, 601 (1994) (citing Indian Child Welfare Program: Hearings Before the Subcomm. on Indian Affairs of the Comm. on Interior and Insular Affairs, 93rd Cong., 2d Sess. 1, 99-100 (1974)). Even more frightening, a 1976 survey in New Mexico revealed that Indian children were placed for adoption by public agencies at a per capita rate 1.5 times higher than the rate for non-Indian children and in foster care at 2.4 times the rate for non-Indian children. Garry Wamser, Child Welfare Under the Indian Child Welfare Act of 1978: A New Mexico Focus, 10 N.M.L.REV. 413, 414 (1980) (citing Association on American Indian Affairs, Indian Child Welfare Statistics Survey (1976), reprinted in Hearing on S. 1214 Before the Select Comm. on Indian Affairs, 95th Cong., 1st Sess. 537-603 (1977)). When the New Mexico surveyors added these figures to the number of Indian children attending boarding schools operated by the Bureau of Indian Affairs, they concluded that Indian children are separated from their families 74.6 times more often than non-Indian children in New Mexico. Association on American Indian Affairs, Indian Child Welfare Statistics Survey (1976), reprinted in Hearing on S. 1214 Before the Select Comm. on Indian Affairs, 95th Cong., 1st Sess. 577 (1977).

The Congress hereby declares that it is the policy of this Nation to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum *162 Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 U.S.C.A. § 1902 (1983). Thus, by passing the ICWA, Congress sought to ensure the continued viability of Indian tribes by protecting Indian children from cultural genocide. Paul Shunatona and Tricia Tingle, Indian Child Welfare Act in Texas--An Overview, 58 TEX.B.J. 352, 352 (1995).

On November 8, 1978, President Carter signed the ICWA into law. [FN3] Manuel P. Guerrero, Indian Child Welfare Act of 1978: A Response to the Threat to Indian Culture Caused by Foster and Adoptive Placements of Indian Children, 7 AM.INDIAN L.REV. 51, 66 (1979) (citing Indian Child Welfare Act of 1978, Pub.L. 95-608, 92 Stat. 3069, 25 U.S.C. § 1901 et seq.). The Act applies to all state child custody proceedings involving an Indian child. Douglas R. Nazarian, Catholic Social Services, Inc. v. C.A.A.: Best Interests and Statutory Construction of the Indian Child Welfare Act, 7 ALASKA L.REV. 203, 205 (1990). See 25 U.S.C.A. § 1903(1) (1983) (definition of child custody proceeding); [FN4] 25 U.S.C.A. § 1903(4) (1983) (definition of Indian child). [FN5] We note that there is no question that the case before us falls under the ICWA. It is undisputed that this matter involves a "child custody proceeding" and that the children are "Indian children" as those terms are defined by the Act.

FN3. The ICWA was not, however, generally effective until 180 days after its enactment. See 25 U.S.C.A. § 1923 (1983).

FN4. A "child custody proceeding" includes foster care matters, termination of parental rights, preadoptive placements, and adoptive placements. It does not include a placement based on an act which, if committed by an adult, would be deemed a crime, or on an award in a divorce proceeding of custody to one of the parents. In other words, it does not include divorce or juvenile delinquency proceedings. 25 U.S.C.A. § 1903(1) (1983). See also Michael J. Dale, State Court Jurisdiction Under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test, 27 GONZ.L.REV. 353, 359 (1991-92).

FN5. An "Indian child" is any unmarried person under the age of eighteen who is either: (1) a member of an Indian tribe; or (2) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. 25 U.S.C.A. § 1903(4) (1983).

2. Jurisdiction and the Indian Child Welfare Act.

At the core of the Act are the provisions concerning jurisdiction over Indian child custody proceedings. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S.Ct. 1597, 1601-02, 104 L.Ed.2d 29 (1989); In re J.L.P., 870 P.2d 1252, 1256 (Colo.Ct.App.1994). See also 25 U.S.C.A. § 1911 (1983). The Act provides for a dual jurisdictional scheme. Id. First, the Act attempts to protect the welfare of Indian families by giving exclusive jurisdiction to the tribal courts in any child custody proceeding involving an Indian child who resides or is domiciled on the tribe's reservation. Holyfield, 490 U.S. at 36, 109 S.Ct. at 1601-02; In re Adoption of a Child of Indian Heritage, 111 N.J. 155, 543 A.2d 925, 931 (N.J.1988). This protection is codified in section 1911(a) and states the following:

An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

25 U.S.C.A. § 1911(a) (1983).

The ICWA does not, however, completely divest state courts of their jurisdiction over children of Indian descent. In re C.W., 239 Neb. 817, 479 N.W.2d 105, 112 (Neb.1992) (citing Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587 (10th Cir.1985), cert. denied, 479 U.S. 872, 107 S.Ct. 247, 93 L.Ed.2d 171 (1986)). Section 1911(b) creates concurrent jurisdiction in the case of children not domiciled on the reservation; however, there is a presumption in favor of tribal court *163 jurisdiction. Holyfield, 490 U.S. at 36, 109 S.Ct. at 1601-02. Section 1911(b) states:

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

25 U.S.C.A. § 1911(b) (1983) (emphasis in the original).

Thus, state courts may exercise jurisdiction concurrently with the tribal courts with respect to Indian children who are not domiciled on their Tribe's reservation; however, the state court must defer to the tribal court unless: (1) either parent objects; (2) the Tribe declines the transfer; or (3) "good cause" is shown for the retention of state jurisdiction. [FN6] In re Appeal in Pima County, 635 P.2d at 188-89; Russell Lawrence Barsh, The Indian Child Welfare Act of 1978: A Critical Analysis, 31 HASTING L.J. 1287, 1316-1317 (1980). Section 1911(b) modifies the general rule that Indians off the reservation are subject to state jurisdiction by requiring that state courts transfer jurisdiction of child custody proceedings to the tribe upon petition by the Indian child's parent, Indian custodian, or tribe unless a parent objects, the tribe declines, or there is good cause not to transfer. Id.; 25 U.S.C.A. § 1911(b) (1983). See generally 25 U.S.C.A. § 1903(5) ("Indian child's tribe"); 25 U.S.C.A. § 1903(6) ("Indian custodian"); 25 U.S.C.A. § 1903(9) ("parent"). Under the ICWA, if the tribe, parent, or Indian custodian of the child petitions for transfer of the proceeding to the tribal court, the state court cannot proceed without first determining whether jurisdiction of the matter should be transferred to the Tribe. In re C.W., 479 N.W.2d at 112. If there is no objection by a parent and no refusal by the tribe to accept jurisdiction, the determination of whether the proceeding should be transferred turns on the issue of whether "good cause" exists to deny the transfer. See 25 U.S.C.A. § 1911(b) (1983).

FN6. One commentator, highly critical of section 1911(b), suggests that the "good cause" language should be removed from the section altogether. Jeanne Louise Carriere, Representing the Native American: Culture, Jurisdiction, and the Indian Child Welfare Act, 79 IOWA L.REV. 585, 648 (1994). She asserts that while paying homage to Native American culture by recognizing that tribal jurisdiction extends to Indians who do not live within a tribe's geographic boundaries, the section subjects the value of tribal involvement to Anglo standards through the proviso that a state court can refuse to transfer a case for good cause when that term is undefined anywhere in the Act. Id. at 598-99. Carriere argues that a state court should only retain jurisdiction if the tribal court declines the transfer or if one of the parents of the child objects. Id. at 648- 49.

Determining whether good cause exists to retain jurisdiction is within the trial court's discretion. In re J.L.P., 870 P.2d at 1256 (citing In re Dependency & Neglect of A.L., 442 N.W.2d 233 (S.D.1989); In re Wayne R.N., 107 N.M. 341, 757 P.2d 1333, 1335 (N.M.1988)). A good cause determination is necessarily made on a case-by-case basis after consideration of all the circumstances involved. In re J.L.P., 870 P.2d at 1256 (citing In re Wayne R.N., 757 P.2d at 1335). Thus, the determination is by its nature subjective, requiring a balancing process of the rights of the state, the child, and the tribe. Michael J. Dale, State Court Jurisdiction Under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test, 27 GONZ.L.REV. 353, 386 (1991-92). The burden of establishing good cause not to transfer jurisdiction is on the party opposing the transfer. In re J.L.P., 870 P.2d at 1257 (citing In re Armell, 194 Ill.App.3d 31, 141 Ill.Dec. 14, 550 N.E.2d 1060 (Ill.Ct.App.1990), appeal denied, 132 Ill.2d 545, 144 Ill.Dec. 255, 555 N.E.2d 374, cert. denied, 498 U.S. 940, 111 S.Ct. 345, 112 L.Ed.2d 310 (1990); Department of Interior, Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,591 (1979) [hereinafter BIA Guidelines or Guidelines].

The ICWA does not define "good cause." In re J.L.P., 870 P.2d at 1256. The legislative history of the Act states that the use of *164 the term "good cause" was designed to provide state courts with flexibility in determining the disposition of a placement proceeding involving an Indian child. Chester County Dept. of Social Servs. v. Coleman, 296 S.C. 355, 372 S.E.2d 912, 914 (S.C.Ct.App.1988) (citing H.R.REP. NO. 1386, 95th Cong., 2nd Sess. 21, reprinted in 1978 U.S.C.C.A.N. 7530, 7544). Thus, it appears that the Act purposely failed to define "good cause" in order to give state courts discretion in determining whether to transfer cases. However, the Bureau of Indian Affairs (BIA) has issued guidelines interpreting the ICWA's definition of "good cause to the contrary." In re C.W., 479 N.W.2d at 113. The BIA Guidelines state that good cause not to transfer the proceeding exists if the child's tribe does not have a tribal court and good cause may also exist if any of the following circumstances are present:

(i) the proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing;

(ii) the Indian child is over twelve years of age and objects to the transfer;

(iii) the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses; or

(iv) the parents of a child over five years of age are not available and the child has had little or no contact with the child's tribe or members of the child's tribe.

BIA Guidelines, 44 Fed.Reg. at 67,591. Further, the Guidelines prohibit consideration of such factors as: (1) the socio-economic conditions of the tribe; and (2) the perceived inadequacy of tribal or Bureau of Indian Affairs social services or judicial systems. Id.

Although the BIA followed the rulemaking procedures of the federal Administrative Procedure Act in creating these Guidelines, the BIA Guidelines were not published as regulations because they were not intended to have binding legislative effect. See 5 U.S.C.A. § 551, et seq. (1977) (defining rulemaking procedures); BIA Guidelines, 44 Fed.Reg. at 67,584. In fact, the introduction to the Guidelines specifically states that primary responsibility for interpreting language in the Act, other than that specifically reserved for interpretation by the Secretary of the Interior, "rests with the courts that decide Indian child custody cases." [FN7] Id. The introduction further states that while courts will take into account what the Department of the Interior has to say about the ICWA, they are free to act contrary to the interpretations of the Department of the Interior if they are convinced that the Guidelines in question is not required by the ICWA itself. Id. Thus, while the Guidelines clearly are not binding in that they are interpretative rather than legislative in nature, the interpretation in the Guidelines should be given important significance. See D.E.D. v. State, 704 P.2d 774, 779 n. 8 (Alaska 1985) (holding that while not binding on state courts, BIA Guidelines are instructive); In re Appeal in Maricopa County Juvenile Action No. A-25525, 136 Ariz. 528, 532 n. 4, 667 P.2d 228 (Ariz.Ct.App.1983) (holding that BIA Guidelines are useful source of information for questions arising over implementation of ICWA); In re Junious M., 144 Cal.App.3d 786, 792 n. 7, 193 Cal.Rptr. 40 (Cal.Ct.App.1983) (holding that BIA Guidelines are entitled to great weight); In re Dependency and Neglect of A.L., 442 N.W.2d 233, 236 (S.D.*165 1989) (holding that BIA Guidelines are not binding, but should be given important significance). See generally Batterton v. Francis, 432 U.S. 416, 424-25, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977) (holding that administrative interpretations of statutory terms are given important but not controlling significance).

FN7. When Congress expressly delegates to the Secretary of the Department that oversees the statute at issue the primary responsibility for interpreting statutory language, the regulations interpreting the language or term are legislative or substantive regulations and have the force and effect of law. Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405 n. 9, 53 L.Ed.2d 448 (1977) (citing U.S. Dept. of Justice, Attorney General's Manual on the Administrative Procedure Act 30 n. 3 (1947)). For example, under section 1918 of the ICWA, the Secretary is directed to determine whether a plan for reassumption of jurisdiction is "feasible" as that term is used in the statute. 25 U.S.C.A. § 1918 (1983); Department of Interior, Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,584 (1979). The regulations covering section 1918 would therefore be binding. These and other areas in the statute where primary responsibility for implementing portions of the ICWA are published at 44 Fed.Reg. 45,092 (1979). The Secretary of the Interior was not given the primary responsibility for interpreting the phrase "good cause." See 25 U.S.C.A. § 1911.

3. "Good cause" and the Modified Forum Non Conveniens Doctrine.

The only specific Guideline at issue in the case before us is number (iii), which states that good cause may exist if:

(iii) the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.

The provision was included on the strength of a section-by-section analysis in the House Report on the ICWA which stated, with respect to section 1911(b):

The subsection is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected.

BIA Guidelines, 44 Fed.Reg. at 67,591 (quoting H.R.REP. NO. 1386, 95th Cong., 2d Sess., reprinted in 1978 U.S.C.C.A.N. 7530, 7544) (emphasis in original).

This provision has been interpreted by the courts, in accordance with the commentary in the Guidelines, to allow state courts to apply a modified forum non conveniens doctrine, and the courts have frequently done so. The doctrine is modified under the ICWA in that generally, courts applying forum non conveniens use it to refuse jurisdiction and transfer the case to an alternate forum. See Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1947). However, in the Indian child welfare context, the state court determines if the tribal court is an inconvenient forum; if the state court finds the tribal court is an inconvenient forum, good cause exists to retain jurisdiction. Chester County Dept. of Social Services v. Coleman, 303 S.C. 226, 399 S.E.2d 773, 775 (1991). In other words, under the modified doctrine, the trial court does not decide whether it is an inconvenient forum; rather, it decides whether the tribal court is inconvenient. Further, the doctrine is modified so that the state court must also consider and protect the rights of the Indian child and the tribe in its forum non conveniens review. Note, Indian Child Welfare: A Jurisdictional Approach, 21 ARIZ.L.REV. 1123, 1142 (1979).

Dozens of ICWA cases exist in which courts have considered the modified doctrine of forum non conveniens in determining whether to transfer a child custody case under section 1911(b). E.g., In re C.E.H., 837 S.W.2d 947, 954 (Mo.Ct.App.1992); In re Wayne R.N., 107 N.M. 341, 757 P.2d 1333 (N.M.Ct.App.1988); Chester County Dept. of Social Servs. v. Coleman, 303 S.C. 226, 399 S.E.2d 773, 775-76 (1990); In re J.J., 454 N.W.2d 317 (S.D.1990). Most often, courts have used the doctrine to deny the transfer, and upon review, the finding has been sustained. E.g., In re T.S., 245 Mont. 242, 801 P.2d 77, 82 (Mont.1990), cert. denied by King Island Native Community v. Montana Dep't of Family Serv., 500 U.S. 917, 111 S.Ct. 2013, 114 L.Ed.2d 100 (1991). But see In re J.L.P., 870 P.2d at 1258 (holding that party opposing transfer failed to establish undue hardship if proceedings were transferred to tribal court so as to establish good cause). However, the mere fact that the doctrine has been used most often to deny transfers does not make it an inappropriate consideration. All of the case law and the BIA Guidelines state that it is proper for the trial court to consider the hardship to the parties and the witnesses in making the transfer determination. Thus, the trial court in this case did not act contrary to guiding principles of law when it considered the modified forum non conveniens doctrine in determining whether to grant relator's motion to transfer.

However, relator argues that this case is different and the trial court did abuse its discretion in considering the doctrine because the Tribe offered to sit in Houston, and thus, there would be no undue hardship to the parties or the witnesses and no reason to *166 deny the transfer based on forum non conveniens.

The commentary in the Guidelines recognizes that application of the modified forum non conveniens doctrine may limit transfers to cases involving Indian children who do not live far from the reservation. BIA Guidelines, 44 Fed.Reg. at 67,591. However, even though the Department of the Interior was aware of this tendency, the Department still included "undue hardship to the parties and witnesses" as good cause to deny a transfer. Id. Although the commentary suggests that this problem "may be alleviated in some instances by having the court come to the witnesses," the commentary states that the Department of the Interior is aware of only one case under the ICWA where transfer to the tribal court was conditioned on having the tribal court meet in the city where the family lived. Id.

While we do not doubt the sincerity of relator's offer to have the tribal court assemble in Houston, we find that a significant question exists as to whether the tribal court can convene outside its territorial limits and issue orders or judgments that have binding effect. [FN8] If the tribal court may convene in Houston and issue binding judgments and orders, perhaps the trial court erred in considering the modified doctrine of forum non conveniens in determining whether good cause existed. However, if the tribal court cannot sit outside its territorial limits and issue binding orders or judgments, then the trial court did not abuse its discretion in discounting relator's offer and relying on forum non conveniens.

FN8. Neither party cited any relevant authority on this issue. Relator simply stated that the tribal court had offered to sit in Houston. It did not offer any state, federal, or Indian authority for the proposition that a tribal court could sit outside its territorial limits and that any decisions made would have binding effect. Relator did cite 25 U.S.C.A. § 1911(d); however, that section simply states that tribal court decisions under the Indian Child Welfare Act are to be given full faith and credit. This has been interpreted to mean that they are to be given the same effect as decisions by any other judicial entity. In re T.R.M., 525 N.E.2d 298, 306 (Ind.1988), cert. denied, by J.Q. v. D.R.L., 490 U.S. 1069, 109 S.Ct. 2072, 104 L.Ed.2d 636 (1989). The statute does not require a state court to give absolute deference to a tribal court order regardless of the circumstances. Id. This still does not resolve the issue of whether any court can sit outside its territorial jurisdiction and make binding decisions.

In People v. Craig, 151 Misc.2d 442, 581 N.Y.S.2d 987, 988 (N.Y.Sup.Ct.1992), the prosecution sought to "conditionally examine" a witness who was hospitalized outside the state. [FN9] The court denied the prosecution's request stating:

FN9. In New York, a conditional examination is used in criminal cases to preserve the testimony of a potentially unavailable witness. People v. Craig, 151 Misc.2d 442, 581 N.Y.S.2d 987, 988 (N.Y.Sup.Ct.1992). This type of examination must "simulate and mirror the examination of such witness at a trial itself." Id. at 989 (quoting Bellacosa, PRACTICE COMMENTARY, MCKINNEY'S CONSOLIDATED LAWS OF NEW YORK, Book 11A, CPL 660.60, p. 330 (1984)). The only difference is the absence of a jury and the presence of a video camera. Id. at 989. The proceeding is a regular court proceeding conducted by a judge. Id.

Since a conditional examination must be a regular court proceeding conducted by a judge, it is fairly obvious that it may not be taken "on the road" and conducted in another state.

Id. at 989 (emphasis in the original). The court stated the law and reasoned as follows:

It is a universally accepted principle of law that a court may not sit outside the territorial limits of its jurisdiction, for any reason whatsoever, even with (and, a fortiori, without,) the consent of all parties, and any proceeding so conducted is a nullity. [citations omitted]

* * * * * *

A judge of this state who crosses a state line instantly undergoes a transformation as dramatic as Cinderella's midnight metamorphosis; the judge turns into an ordinary citizen travelling in another state, with no more power to hold court or administer oaths and affirmations than any other private person might have.

Id.

Cases based on the same concepts are found in this state. For example, in Isbill v. Stovall, 92 S.W.2d 1067, 1069 (Tex.Civ.App.--*167 Eastland 1936, no writ), a Jones County district court tried a case and rendered a judgment in Taylor County. On appeal, the appellant argued that the trial court was without jurisdiction to enter the judgment in question because the court was acting outside its territorial limits. Id. The court of appeals held that the trial court had no jurisdiction to try a civil suit and render judgment while sitting in a county other than Jones County because the court was not authorized to do so. Id. at 1070-71. In other words, a court may not convene outside its territorial limits and issue orders or judgments that are binding unless authorized by law. See id. As the appellate court stated:

A court is an agency of the sovereign created by it directly or indirectly under its authority consisting of one or more officers, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violation of the law, authorized to exercise its powers in due course of law at times and places previously determined by lawful authority.

Id. at 1077 (quoting Townes Texas Pleading, p. 7) (emphasis in court of appeals opinion).

Thus, under Texas law, a trial or hearing held at a time or in a place not authorized by law is a nullity, and any judgment issuing therefrom is void. See Howell v. Mauzy, 899 S.W.2d 690, 699 (Tex.App.--Austin 1994, n.w.h.) (holding that district court judge has no power to adjudicate rights of litigants except at time and places prescribed by law for holding court); Ex parte Lowery, 518 S.W.2d 897, 901-02 (Tex.Civ.App.--Beaumont 1975, orig. proceeding) (citing State v. Sammons, 223 Ind. 27, 57 N.E.2d 587, 590 (Ind.1944); Wood v. Cox, 251 S.W.2d 798, 799 (Tex.Civ.App.--Dallas 1952), rev'd on other grounds, 152 Tex. 283, 256 S.W.2d 841 (1953) (holding that statute authorized juvenile court to sit outside the boundaries of Dallas).

Texas and New York are not alone in embracing the idea that, unless authorized by law, a tribunal may not issue binding decisions if it convenes and issues those decisions outside its territorial limits. We have found numerous cases dealing with this issue, and the majority of them hold that a court may not issue binding decisions when it is outside its territorial limits. See Howell v. Van Houten, 227 Ark. 84, 296 S.W.2d 428 (Ark.1956); Francis v. Wells, 4 Colo. 274 (Colo.1878); Goodman v. Little, 96 Ga.App. 110, 99 S.E.2d 517 (Ga.Ct.App.1957); Tanner v. Beverly Country Club, 217 La. 1043, 47 So.2d 905 (La.1950); Miller v. Ashurst, 86 Nev. 241, 468 P.2d 357 (Nev.1970); Madison Nat'l Life Ins. Co. v. Second Judicial Dist., 85 Nev. 6, 449 P.2d 256 (Nev.1969); House of Style Furniture Corp. v. Scronce, 33 N.C.App. 365, 235 S.E.2d 258 (N.C.Ct.App.1977). See generally Annotation, Place of Holding Sessions of Trial Court as Affecting Validity of its Proceedings, 18 A.L.R.3d 572, 589-98 (1968 & Supp.1994).

Further, the United States Supreme Court supports a holding that a court cannot produce binding decisions outside of its territorial limits unless authorized by law:

The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as mere abuse.

Pennoyer v. Neff, 95 U.S. 714, 720, 24 L.Ed. 565 (1877). Finally, the United States Supreme Court has applied this longstanding principle specifically to Indians, by stating that:

Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973).

We have been cited no authority and have found none, either in the federal or Texas state law, that authorizes a tribal court to sit outside its territorial limits. [FN10] Thus, relator's *168 offer to have the tribal court convene in Houston has no bearing on the trial court's consideration of the modified forum non conveniens doctrine, and the trial court was correct to disregard it.

FN10. Relator made a blanket statement in a brief to the trial court that the tribal court has full powers to issue subpoenas, conduct investigations, and enforce its orders. Relator provided no authority for that statement and did not state the geographical area in which those powers are valid.

The trial court found that good cause existed to deny the transfer based on the modified forum non conveniens doctrine. Based on case law and the interpretation of good cause in the BIA Guidelines, we hold that the doctrine was an appropriate consideration in determining whether good cause exists to refuse to transfer a child custody proceeding to a tribal court. The evidence and the witnesses necessary for any custody determination in this case are obviously in Texas. Also, the Tribe's offer to convene in Houston is not a viable option, and, therefore, the trial court did not err in discounting it. We hold that the trial court did not abuse its discretion in considering "undue hardship to the parties or witnesses" as a basis for good cause. This finding alone was a sufficient ground on which to deny relator's motion to transfer as to all three of the children; however, because this is a case of first impression in this state, we will consider relator's remaining contentions.

6. "Good Cause" and "Best Interests."

Relator next contends that the trial court abused its discretion in finding that good cause existed to deny the transfer based on the best interests of the children. The real parties in interest disagree and argue that because the term "good cause" creates flexibility in determining the disposition of a placement proceeding, Congress implicitly recognized that the best interest of the child standard is appropriate under section 1911(b).

The best interest of the child test in the Anglo-American legal systems considers a number of factors: (1) the desires of the child; (2) the emotional and physical need of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. See, e.g., Holley v. Adams, 544 S.W.2d 367, 371- 72 (Tex.1976). While this list is not exhaustive, it does indicate a number of considerations which have been or would appear to be pertinent. Id. When state courts use this test, they obviously consider the factors from their own perspective, that is, an Anglo-American point of view.

Whether the "Anglo" best interest of the child test should be an element of the good cause test is a difficult question. Michael J. Dale, State Court Jurisdiction Under the Indian Child Welfare Act and the Unstated Best Interest of the Child Test, 27 GONZ.L.REV. 353, 387 (1991-92). The Act itself is silent on the issue, while the Guidelines suggest the best interest of the child has no place in determining good cause. Id. The courts are split on this issue. Compare In re C.E.H., 837 S.W.2d at 954 (rejecting best interest standard in transfer cases) with In re Appeal in Maricopa County Juvenile Action No. JS-8287, 171 Ariz. 104, 828 P.2d 1245, 1251 (Ariz.Ct.App.1991) (holding that trial court may consider best interest when deciding whether to transfer custody proceeding to tribal court). Although the standard of review in this case is abuse of discretion, a trial court is given much less deference in determining what the law is. Walker, 827 S.W.2d at 840. After reviewing all of the available case law on both sides of the issue, we hold that those courts that reject the best interest test, when determining motions to transfer, are correct.

The "best interest of the child" is the backbone of American family law when custody is an issue. See, e.g., Tex.Fam.Code Ann. § 14.07(a) (Vernon Supp.1995) (stating *169 that best interest of child shall always be primary consideration of court in question of managing conservatorship, possession, support, and access). See generally Holley, 544 S.W.2d at 372 (setting forth Texas best interest test). However, we find that consideration of the best interest of the child in determining whether good cause exists under section 1911(b) is improper because: (1) it defeats the very purpose for which the ICWA was enacted, in that, it allows Anglo cultural biases into the analysis; and (2) questions of "best interest" are appropriate to issues of placement, not jurisdiction. [FN11]

FN11. Once author notes a third reason for not considering the best interest standard under section 1911(b): even within the Anglo-American legal system, the standard is regarded as flawed because it is so imprecise. Jeanne Louise Carriere, Representing the Native American: Culture, Jurisdiction, and the Indian Child Welfare Act, 79 IOWA L.REV. 585, 615 (1994).

Several state courts have utilized the "best interest of the child" as a definition of good cause, and as a reason not to transfer cases to tribal courts. The Montana Supreme Court was the first to advocate the use of "best interest" as a possible factor under good cause in a case concerning a dependency and neglect action involving a Sioux Indian child. In re M.E.M., 195 Mont. 329, 635 P.2d 1313, 1314 (Mont.1981). The supreme court, while reversing and remanding the case back to the trial court because the trial court failed to appoint counsel for the indigent mother as required under section 1912(b), stated that on remand the trial court had to decide whether to transfer the case to the tribal court and in making its determination should consider the BIA Guidelines; most importantly, the court held that "the best interest of the child could prevent transfer of jurisdiction." Id. at 1317.

Other state courts have followed the Montana decision and held that the best interest standard is an appropriate consideration in determining whether good cause exists to deny transfer to a tribal court. In re Appeal in Maricopa County Juvenile Action No. JS-8287, 171 Ariz. 104, 828 P.2d 1245, 1251 (Ariz.Ct.App.1991); In re Robert T., 200 Cal.App.3d 657, 665, 246 Cal.Rptr. 168 (Cal.Ct.App.1988); In re T.R.M., 525 N.E.2d at 307-08; In re C.W., 479 N.W.2d at 114; In re N.L., 754 P.2d 863, 869 (Okla.1988); In re J.J., 454 N.W.2d 317, 331 (S.D.1990). At least one of these cases based its holding on section 1902, concluding that this section provides justification for the use of the best interest test because it states that the policy of the Act is "to protect the best interest of Indian children." See In re T.R.M., 525 N.E.2d, at 307-08. See also 25 U.S.C.A. § 1902(b) (1983). Although the Indiana court correctly stated the language contained in section 1902, and we agree that the ICWA is clearly concerned with the best interests of Indian children, the phrase "best interests of Indian children" in the context of the ICWA is different than the general Anglo-American "best interest of the child" standard used in cases involving non-Indian children. Quinn v. Walters, 320 Or. 233, 881 P.2d 795, 810 (Or.1994) (Unis, J., dissenting); Paul Shunatona and Tricia Tingle, Indian Child Welfare Act in Texas--An Overview, 58 TEX. B.J. 352, 355 (1995) (stating that ICWA best interest standard is drastically different than the state test set by the Texas Supreme Court). Under the ICWA, what is best for an Indian child is to maintain ties with the Indian Tribe, culture, and family. Quinn, 881 P.2d at 810 (citing Holyfield, 490 U.S. at 50 n. 24, 109 S.Ct. at 1609 n. 24). By using the best interest of the child standard employed by state courts in cases involving non-Indian children, the Indian court engaged in the type of analysis that created the need for the Act in the first place.

We decline to follow the holdings in the cases adopting the best interest test and, instead, join those states that have rejected the use of the best interest standard as a consideration for good cause. See In re J.L.P., 870 P.2d 1252, 1258 (Colo.Ct.App.1994); In re Armell, 194 Ill.App.3d 31, 141 Ill.Dec. 14, 550 N.E.2d 1060 (Ill.App.Ct.1990), appeal denied, 132 Ill.2d 545, 144 Ill.Dec. 255, 555 N.E.2d 374 (Ill.1990), cert. denied, 498 U.S. 940, 111 S.Ct. 345, 112 L.Ed.2d 310 (1990); In re B.W., 454 N.W.2d 437 (Minn.Ct.App.1990); In re C.E.H., 837 S.W.2d 947, 954 (Mo.Ct.App.1992); In re Ashley Elizabeth R., 116 N.M. 416, 863 P.2d 451, 456 (N.M.Ct.App.1993). We find that the cases refusing *170 to use the best interest standard reflect the correct interpretation, and properly implement the goals, of the ICWA.