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In re C.R.-A.A.

Court of Appeals of Texas, Fourth District, San Antonio

May 24, 2017

IN THE INTEREST OF C.R.-A.A., a Child

         From the 216th Judicial District Court, Kerr County, Texas Trial Court No. 15189A Honorable N. Keith Williams, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Irene Rios, Justice

          OPINION

          Marialyn Barnard, Justice

         After the Texas Department of Family and Protective Services ("the Department") initiated termination proceedings against the parents of C.R.-A.A., but before the final hearing, the associate judge - based on a motion filed by Father - signed an order in which she determined: (1) Oklahoma has exclusive continuing jurisdiction over C.R.-A.A. under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"); (2) C.R.-A.A. should be placed with Father in Oklahoma pursuant to the Interstate Compact on the Placement of Children ("ICPC"); and (3) the Department should be dismissed as C.R.-A.A.'s temporary managing conservator. The trial court adopted the associate judge's order after a de novo hearing. On appeal, appellant Mother contends the trial court erred in adopting the associate judge's order because: (1) Oklahoma does not have jurisdiction pursuant to the UCCJEA; and (2) the trial court failed to comply with the mandates of the ICPC before placing the child with Father. We reverse the trial court's order and remand this matter for further proceedings consistent with this court's opinion.

         Background

         Mother, a Texas resident, and Father, an Oklahoma resident, are the parents of C.R.-A.A. C.R.-A.A.'s parents are not married and do not cohabitate. In 2015, the Department filed a petition seeking termination of Mother's and Father's parental rights in the event C.R.-A.A. could not be safely reunified with either parent. The associate judge granted the Department's request for emergency removal. A week later, after a "full adversary hearing, " the associate judge signed an agreed temporary order naming the Department as C.R.-A.A.'s temporary managing conservator. Service plans were prepared for Mother and Father. The matter proceeded with the Department completing the required evaluations and filing the mandated progress reports, and the trial court conducting the statutorily-required status hearings. The associate judge determined in several orders that both parents had "partially demonstrated adequate and appropriate compliance with" their individual service plans. The associate judge retained the matter on her docket pursuant to several orders, ultimately extending the dismissal date to September 2016.

         Then, in July 2016, Father filed an amended answer, a cross-petition, and a "Motion to Place Child." In the motion, Father referenced an Oklahoma district court order establishing his paternity of C.R.-A.A. and mandating child support and asked the associate judge to place C.R.-A.A. with him as the "fit, non-offending parent" pursuant to the ICPC. Documents in the record establish that in December 2014, before the Department filed its March 2015 original petition, an Oklahoma district court rendered an agreed order - signed by Mother and Father - recognizing Father as C.R.-A.A.'s biological father based on genetic testing and establishing his support obligations relative to C.R.-A.A.

         After Father filed his initial "Motion to Place Child, " he filed an amended motion and a "Motion to Have Court Consult with the Oklahoma District Court." In the motion seeking consultation, Father asserts that on August 1, 2016, the Department took the position that the Oklahoma district court may have jurisdiction over this matter under the UCCJEA based on the Oklahoma court's prior paternity and child support order. However, Father argued the issue of conservatorship should be decided by the Texas courts because although C.R.-A.A. was conceived in Oklahoma, he was born in Texas and has lived in Texas his entire life, all of the facts relating to removal of C.R.-A.A. occurred in Texas, Oklahoma courts have taken no action in this matter other than to collect and forward child support, and nearly all of the witnesses reside in Texas - specifically Kerr County. Father asked the associate judge to contact the Oklahoma trial court "to request authority to enter permanent conservatorship and/or termination orders in this proceeding." Father asked for alternative relief as well, requesting temporary orders awarding possession of C.R.-A.A. to him for at least six months to allow the Oklahoma court to render appropriate conservatorship orders.

         The associate judge agreed to hear Father's motions on August 11, 2016, before proceeding to a final hearing. At the hearing, the Department stated that based on its interpretation of the ICPC and its accompanying regulations, unless Father is found to be unfit, he is considered a "non-offending" parent and C.R.-A.A. should be immediately placed with him and the Department dismissed as temporary managing conservator. Moreover, the Department argued the prior Oklahoma orders on paternity and support gave Oklahoma exclusive continuing jurisdiction over the matter pursuant to the UCCJEA. Father's ad litem agreed with the Department's assessment, as did the child's guardian ad litem from CASA.

         Mother's attorney ad litem argued there was no need - legally or factually - to place C.R.-A.A. with Father in Oklahoma. C.R.-A.A.'s attorney ad litem agreed, asking for a "monitored return" of the child to Mother. He also asked the associate judge, as had Father in his written motion, to consult with the Oklahoma district court prior to any determination in the matter.

         After hearing the arguments, the associate judge stated, in pertinent part:

[I]t's the Court's position at this time that under both the UCCJEA Federal Statute and the ICPC Federal Statute that the Court is required to place the child with the non-offending parent, unless it can be established that parent is unfit to care for the child. So at this point, I'm going to entertain testimony.

         The associate judge then proceeded to hear testimony and receive evidence as to whether Father is unfit under the ICPC.

         To establish Father is unfit, C.R.-A.A.'s attorney ad litem called Father and C.R.-A.A.'s current foster mother, J.C., a friend of Mother. Thereafter, Father called Candice Jones, the Department caseworker. After the testimony of the three witnesses, the parties presented closing statements. After hearing the evidence and the parties' arguments, the associate judge stated on the record that both the UCCJEA and ICPC are applicable, but even if the UCCJEA is inapplicable, the ICPC mandates placement "if there is a nonoffending parent" who is not unfit. The associate judge stated there was no evidence that Father is unfit and Father established "he is making, really, kind of above-and beyond efforts to be reunified with his son and to facilitate services and support that he would need if the child is placed there." The associate judge then verbally ordered C.R.-A.A. placed with Father, noting the Oklahoma child support order would need to be modified. Ultimately, the associate judge signed a written order that states, in pertinent part:

IT IS ORDERED that the TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES is released from its appointment as managing conservator with regards to the children [sic], [C.R.-A.A.].
The Court FINDS that [Father] is a non-offending, out of state parent as defined in the Interstate Compact on the Placement of Children. The Court further finds that the State of Oklahoma has continuing, exclusive jurisdiction for the child, [C.R.-A.A.], and that any future litigation involving custody or support of the child, [C.R.-A.A.], will be conducted in said Court. The Court further FINDS that [Father] is a fit parent and ORDERS placement with him.

         The associate judge also released the attorneys ad litem and Hill Country CASA from their duties in this matter. After the associate judge's order, Mother requested a de novo hearing, challenging the associate judge's order. The trial court set the de novo hearing for November 2016.

         The de novo hearing began with the Department providing the trial court with the background of the case. The parties then presented legal argument regarding the applicability and effect of the UCCJEA and the ICPC.[1] After hearing the arguments, the trial court adopted the decision of the associate judge. Mother then perfected this appeal.

         Analysis

         On appeal, Mother contends the trial court misconstrued both the effect of the Oklahoma district court's paternity and child support order under the UCCJEA and the requirements for placement under the ICPC. According to Mother, these errors resulted in the trial court improperly ceding jurisdiction to Oklahoma, improperly dismissing the underlying case, and placing C.R.-A.A. with Father without first having complied with certain ICPC requirements. In response to Mother's argument, the Department asserts the law is contrary to Mother's contentions. Specifically, the Department argues the ICPC does not apply, but the trial court was within its discretion to place C.R.-A.A. with Father and dismiss the Department's case.

         Does Oklahoma Have Continuing, Exclusive Jurisdiction Under the UCCJEA?

         The associate judge determined Oklahoma has exclusive continuing jurisdiction over the custody issues relating to C.R.-A.A. This determination was adopted by the trial court. Mother argues this finding is erroneous because at the time of the associate judge's order, Texas was C.R.-A.A.'s "home state" under the Texas Family Code ("the Code"), and the Oklahoma district court's order regarding paternity and child support did not constitute a "child custody determination" for purposes of vesting that court with exclusive continuing jurisdiction. See Tex. Fam. Code Ann. § 152.201(a) (West 2014). We agree.

         Standard of Review

         The existence of subject matter jurisdiction with regard to child custody matters is a question of law, which we review de novo. See Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005). We review the trial court's interpretation of applicable statutes - in this case jurisdictional statutes under the Code - de novo. See id.; Berwick v. Wagner, 336 S.W.3d 805, 819 (Tex. App.-Houston [1st Dist.] 2011, pet. denied). Our objective ...


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