in the Interest of J.C.M. ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00349-CV
____________________
IN THE INTEREST OF J.C.M.
_________________________________ ______________________
On Appeal from the 410th District Court
Montgomery County, Texas
Trial Cause No. 12-08-08578 CV
____________________________________________ ____________
MEMORANDUM OPINION
M.L., J.C.M.’s maternal grandmother, filed a petition in Texas seeking
modification of a California custody order. J.C.M.’s father, J.M., filed a counter-
petition. The trial court signed an order finding that modification is in J.C.M.’s best
interest, removing J.M. as joint managing conservator, appointing M.L. as J.C.M.’s
non-parent sole managing conservator, and appointing J.M. as a parent possessory
conservator. In three appellate issues, J.M. challenges the trial court’s modification
of the California order. We affirm the trial court’s order.
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Jurisdiction
In issue one, J.M. contends that the State of California has exclusive subject
matter jurisdiction. In her petition, M.L. alleged that the trial court has jurisdiction
under sections 152.201, 152.203, and 152.204 of the Texas Family Code. In its
order, the trial court stated that it has jurisdiction under sections 152.201 and
152.203. Subject matter jurisdiction is a question of law that we review de novo. In
the Interest of C.T.H.S., 311 S.W.3d 204, 206 (Tex. App.—Beaumont 2010, pet.
denied).
A Texas court may not modify a child custody determination made by an
out-of-state court unless: (1) the Texas court has jurisdiction to make an initial
child custody determination; and (2) the out-of-state court determines it no longer
has exclusive continuing jurisdiction or that a Texas court would be a more
convenient forum; or the Texas court or out-of-state court determines that the
child, the child’s parents, and any person acting as a parent do not presently reside
in the other state. Tex. Fam. Code Ann. § 152.203 (West 2014). Section 152.201
outlines the circumstances under which a Texas court may make an initial custody
determination, such as when the child’s home state is Texas. Id. § 152.201(a).
“‘Home state’ means the state in which a child lived with a parent or a person
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acting as a parent for at least six consecutive months immediately before the
commencement of a child custody proceeding.” Id. § 152.102(7).
According to M.L.’s affidavit, J.C.M.’s mother, C.C., left J.C.M. alone in a
hotel room, and M.L. found J.C.M. at the hotel on February 1, 2012. M.L. filed
her petition on August 16, 2012, over six months after she took possession of
J.C.M. Because J.C.M. lived in Texas with M.L. for at least six consecutive
months preceding M.L.’s petition, the trial court could reasonably conclude that
Texas was J.C.M.’s home state on the date the proceedings commenced. See id. §§
152.102(7); 152.201(a)(1). Additionally, the California Department of Children
and Family Services had previously recommended that the California court’s
jurisdiction be terminated. In its January 2012 order, the California court
terminated its jurisdiction over J.C.M. Accordingly, at the time M.L. commenced
proceedings in Texas, the California court no longer had jurisdiction over the
parties. See In re A.S., 95 Cal. Rptr. 3d 363, 365-66 (Cal. App. 4th 2009, review
denied) (Once the California court terminated jurisdiction regarding the child, it
could no longer change, modify, or set aside a previous order.). Even J.M., in his
counter-petition, stated that “[n]o court has continuing jurisdiction of this suit or of
the child the subject of this suit.” We conclude that the California court’s order
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contains a determination that it no longer has jurisdiction. See Tex. Fam. Code
Ann. § 152.203(1).
J.M. further contends that section 152.206 of the Texas Family Code
deprived the trial court of jurisdiction. Except for temporary emergency
jurisdiction, a Texas court cannot exercise jurisdiction if, at the time of the
commencement of the proceeding, a proceeding concerning the custody of the
child has been commenced in a court of another state, unless the proceeding has
been terminated or is stayed by the out-of-state court because Texas is a more
convenient forum. Id. § 152.206(a). “‘Commencement’ means the filing of the first
pleading in a proceeding.” Id. § 152.102(5).
The record does not indicate that a proceeding had been commenced in
California when M.L. filed her petition in Texas. The parties’ stipulation is dated
August 21, 2012, and, according to J.M.’s affidavit for UCCJEA information, C.C.
filed a modification of the California custody order on August 27, 2012. On
August 27, 2012, the California Superior Court issued its stipulation and order for
modification. J.M. subsequently informed the Texas court that no other court had
continuing jurisdiction. Under these circumstances, we conclude that the Texas
proceeding was already pending when the California case was commenced; thus,
section 152.206 does not apply to this case. Because the Texas court properly
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exercised jurisdiction under sections 152.201(a)(1) and 152.203(1), we overrule
J.M.’s first issue. Therefore, we need not address issue three, in which J.M.
contends that the trial court improperly exercised temporary emergency
jurisdiction. See Tex. R. App. P. 47.1.
Section 152.209 of the Texas Family Code
In issue two, J.M. complains that M.L. failed to comply with section
152.209 of the Texas Family Code. Section 152.209 requires a party to provide the
following information in a pleading or affidavit, if reasonably ascertainable: (1) the
child’s address or location, the places where the child lived in the last five years,
and the names and addresses of the persons with whom the child lived; (2) whether
the party has participated in any other proceeding concerning custody of or
visitation with the child and, if so, the court, case number, and date of any custody
determination; (3) whether the party knows of any proceeding that could affect the
current proceeding and, if so, the court, case number, and nature of the proceeding;
and (4) whether the party knows the names and addresses of any person not a party
to the proceeding who has physical custody of the child or claims rights of custody
or visitation with the child and, if so, the names and addresses of those persons.
Tex. Fam. Code Ann. § 152.209(a) (West 2014). The failure to comply with
section 152.209 is not jurisdictional. In the Interest of G.M., No. 04-13-00689-CV,
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2014 Tex. App. LEXIS 3234, at **13-14 (Tex. App.—San Antonio Mar. 26, 2014,
no pet.) (mem. op.).
Under section 152.209, M.L. was only required to provide information that
was reasonably ascertainable. See Tex. Fam. Code Ann. § 152.209(a). In an
affidavit dated August 10, 2012, M.L. stated that, to her knowledge and belief, the
California court’s January order had not been modified. In her petition, M.L. stated
J.C.M. resides with her in Montgomery County, Texas. M.L. explained that the
Texas Department of Family and Protective Services had previously been involved
and that there has been no change in J.C.M.’s property since the January 2012
California order. She identified J.M. and C.C. as parties who may be affected. Only
if the questions posed in section 152.209(a) yielded affirmative answers would
M.L. be required to provide additional information, and the trial court could
examine the parties as to any details pertinent to its jurisdiction and disposition of
the case. See id. § 152.209(c). The trial court could conclude that M.L.’s affidavit
and pleadings substantially complied with section 152.209(a) and that if further
information was required, the proceedings could be stayed so the information
could be provided. See id. § 152.209(a), (b).
J.M. also complains that M.L. failed to file the most recent California order
with the trial court. Section 152.209 imposes a continuing duty on each party to
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inform the trial court of any proceeding that could affect the current proceeding. Id.
§ 152.209(d). The record indicates that, at the time M.L. filed her petition in Texas,
the California court’s January order was the only order in existence. J.M. filed the
modified order with the trial court on August 31, 2012. The record does not
indicate that M.L. was aware of the August 2012 order and failed to provide it to
the trial court. Accordingly, we reject J.M.’s contentions that M.L. failed to
comply with section 152.209. We overrule issue two and affirm the trial court’s
judgment.
AFFIRMED.
________________________________
STEVE McKEITHEN
Chief Justice
Submitted on May 2, 2014
Opinion Delivered May 22, 2014
Before McKeithen, C.J., Horton and Johnson, JJ.
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