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In re J.T.R.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 3, 2018

IN THE INTEREST OF J.T.R. AND H.M.R., MINOR CHILDREN

          On appeal from the County Court at Law No. 5 of Nueces County, Texas.

          Before Justices Rodriguez, Contreras, and Hinojosa.

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ Justice

         This case involves the involuntary termination of parental rights.[1] See Tex. Fam. Code Ann. § 161.001 (West, Westlaw through 2017 1st C.S.). By two issues, appellant D.R., the father of J.T.R. and H.M.R., contends that: (1) the trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); see id. § 152.001-.317 (West, Westlaw through 2017 1st C.S.); and (2) the evidence was legally and factually insufficient to support the trial court's finding that D.R. committed four violations under the termination statute. See id. § 161.001(b)(1)(D), (E), (N), & (O) (West, Westlaw through 2017 1st C.S.). We vacate the portions of the judgment that result in the termination of D.R.'s parental rights to J.T.R. and H.M.R. and dismiss that part of the case for want of jurisdiction.[2]

         I. Jurisdiction

         By his first issue, D.R. contends that the UCCJEA precludes the trial court's exercise of jurisdiction in this termination case. See id. § 152.001-.317 (addressing, among other things, conflicting interstate child-custody orders entered by competing jurisdictions). Appellee the Texas Department of Family and Protective Services (the Department) responds by conceding that the Texas court lacked exclusive continuing jurisdiction to enter the termination order regarding J.T.R. and H.M.R. because (1) a Mississippi court made an initial custody determination in a 2013 divorce decree, and (2) proper steps were not taken in the Texas court to secure exclusive continuing jurisdiction. See id. §§ 152.204 (c-d), 152.207.

         A. Standard of Review

         Subject matter jurisdiction is never presumed, cannot be waived, and may be raised for the first time on appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); In re S.J.A., 272 S.W.3d 678, 682 (Tex. App.-Dallas 2008, no pet.). The UCCJEA provides a mechanism for reconciling jurisdictional issues regarding interstate custody disputes. See generally Tex. Fam. Code Ann. § 152.201-.317. Whether a trial court has subject matter jurisdiction under the UCCJEA to terminate parental rights is a question of law, which we review de novo. See In re J.C.B., 209 S.W.3d 821, 822 (Tex. App.-Amarillo 2006, no pet.); see also In re F.M.-T., No. 02-13-00230-CV, 2013 WL 5517915, at *2 (Tex. App.-Fort Worth Oct. 3, 2013, no pet.) (mem. op.).

         B. Applicable Law

         Under the UCCJEA, the court that makes the initial "child custody determination" generally retains exclusive continuing jurisdiction over ongoing custody disputes. Saavedra v. Schmidt, 96 S.W.3d 533, 541 (Tex. App.-Austin 2002, no pet.). A "child custody determination" is an order of a court "providing for legal custody, physical custody, or visitation with respect to a child." Tex. Fam. Code Ann. § 152.202(3). In this case, the parties do not dispute that the Mississippi divorce decree provided for the custody of and visitation with J.T.R. and H.M.R. and, therefore, was the initial child custody determination, placing exclusive continuing jurisdiction over ongoing custody disputes in that court. See Saavedra, 96 S.W.3d at 541. Absent the Mississippi court's relinquishment of its exclusive continuing jurisdiction, the Texas court was without jurisdiction to modify the Mississippi orders. See Tex. Fam. Code Ann. § 152.201.

         Texas Family Code section 152.204, however, authorizes a trial court's temporary emergency jurisdiction over a child custody determination in certain circumstances. Id. § 152.204. A Texas court has temporary emergency jurisdiction to make a child custody determination if the child is present in Texas and the child has been abandoned, or it is necessary in an emergency to protect the child because the child is subjected to or threatened with mistreatment or abuse. Id. § 152.204(a). Under this exception, when another state has made a prior custody determination, the Texas court must take certain steps to either cede jurisdiction to that state or to assume jurisdiction after a determination by the other state that Texas is the more convenient forum. See id. §§ 152.204(c-d), 152.207; see also Miss. Code Ann. §§ 93-27-201-207 (West, Westlaw through 2018 R.S.) (setting out Mississippi's identical UCCJEA statutory provisions).

         C. Discussion

         As set out above, it is undisputed that a Mississippi court made a prior custody determination for J.T.R. and H.M.R in 2013.[3] See Tex. Fam. Code Ann. § 152.202(3). There are no pleadings or proof in the record to support a conclusion that the Mississippi court relinquished its exclusive continuing jurisdiction. See id. § 152.201; In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004) (orig. proceeding) (providing that the party initiating the suit has the burden to allege sufficient facts to establish subject matter jurisdiction). So the Texas trial court was without exclusive continuing jurisdiction to modify the Mississippi orders and to terminate D.R.'s parental rights to J.T.R. and H.M.R.

         Nonetheless, the Department contends that the Texas court acquired temporary emergency jurisdiction under the UCCJEA to protect J.T.R. and H.M.R., who it alleges were either abandoned or subjected to or threatened with mistreatment or abuse. See Tex. Fam. Code Ann. § 152.204(a, c-d). Yet the Department concedes, and we agree, that the record does not demonstrate that the Texas trial court communicated with the Mississippi court to decide the duration of the temporary orders or that it allowed the Mississippi court the opportunity to decline jurisdiction if it determined the court that issued the emergency order was in a better position to address the safety of the children. See id. ยงยง 152.204(c-d), 152.207. Although the trial court did not follow the steps necessary to acquire temporary emergency jurisdiction under the UCCJEA, the Department argues ...


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