Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN THE INTEREST OF J.T.R. AND H.M.R., MINOR CHILDREN
appeal from the County Court at Law No. 5 of Nueces County,
Justices Rodriguez, Contreras, and Hinojosa.
V. RODRIGUEZ Justice
case involves the involuntary termination of parental
rights. 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
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.
Standard of Review
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.).
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.
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
out above, it is undisputed that a Mississippi court made a
prior custody determination for J.T.R. and H.M.R in
2013. 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.
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. §§ 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 ...