in the Interest of P.W. and E.W., Children ( 2023 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00259-CV
IN THE INTEREST OF P.W. AND E.W., CHILDREN
From the 77th District Court
Limestone County, Texas
Trial Court No. CPS-384-A
MEMORANDUM OPINION
In four issues, Holly challenges the trial court’s order terminating her parental
rights to P.W.1 In two issues, Randall challenges the trial court’s order terminating his
parental rights to E.W. and P.W. Because we overrule all of Holly and Randall’s issues,
we affirm.
1 Pursuant to Texas Rule of Appellate Procedure 9.8, the parties refer to the mother and father of
the children using fictitious names. See TEX. R. APP. P. 9.8. We will do the same in this memorandum
opinion. Additionally, as this is a memorandum opinion and the parties are familiar with the facts, we
only recite those necessary to the disposition of the case. See id. at R. 47.1, 47.4.
Holly’s Issues
In her first two issues, Holly challenges the legal and factual sufficiency of the
evidence supporting the trial court’s predicate findings under section 161.001(b)(1)(D)
and (b)(1)(O) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),
(b)(1)(O). In her third and fourth issues, Holly contends that the trial court did not make
required findings under section 263.002(c) of the Texas Family Code and that the
evidence is legally and factually insufficient to show that termination of her parental
rights was in P.W.’s best interest. See id. § 263.002(c).
STANDARD OF REVIEW AND APPLICABLE LAW
The standards of review for legal and factual sufficiency in cases involving the
termination of parental rights are well established and will not be repeated here. See In
re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009); In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002);
see also In re J.F.-G., 612 S.W.3d 373, 381-82 (Tex. App.—Waco 2020), aff’d, 627 S.W.3d 304(Tex. 2021). If multiple predicate violations are found by the factfinder, we will affirm
based on any one finding because only one finding is necessary for termination of
parental rights. See In re J.S.S., 594 S.W.3d 493, 503 (Tex. App.—Waco 2019, pet. denied).
Moreover, we give due deference to the factfinder’s findings and must not substitute our
judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The
factfinder is the sole judge “of the credibility of the witnesses and the weight to give their
In the Interest of P.W. and E.W., children Page 2
testimony.” Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied).
DISCUSSION
Termination under section 161.001(b)(1)(D) requires clear and convincing
evidence that the parent has “knowingly placed or knowingly allowed the child to remain
in conditions or surroundings which endanger the physical or emotional well-being of
the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Subsection (b)(1)(D) requires proof
of endangerment, which means to expose to loss or injury, to jeopardize. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). While “endanger” means “more
than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family
environment, it is not necessary that the conduct be directed at the child or that the child
actually suffers injury.” Id.; see In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston
[14th Dist.] 2005, no pet.) (noting that it is not necessary that a parent’s conduct be
directed towards the child or that the child actually be injured; rather, a child is
endangered when the environment creates a potential for danger which the parent is
aware of but disregards). The danger to a child may be inferred from parental
misconduct. Boyd, 727 S.W.2d at 533. Furthermore, in considering whether to terminate
parental rights, the court may look at parental conduct both before and after the birth of
the child. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no
pet.). Subsection (b)(1)(D) permits termination based upon only a single act or omission.
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Jordan, 325 S.W.3d at 721 (citing In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio
1997, pet. denied)).
Holly is the mother of P.W., who was seven years old at the time of trial. The
record reflects that Holly has a history of drug abuse, including a positive test for
methamphetamine during this case. See In re Z.C., 280 S.W.3d 470, 474 (Tex. App.—Fort
Worth 2009, pet. denied) (stating that a parent’s illegal drug use and drug-related
criminal activity may support a finding that the child’s surroundings endanger his
physical or emotional well-being); In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San
Antonio 1998, pet. denied) (stating that a history of illegal drug use and drug-related
criminal activity is conduct that subjects a child to a life that is uncertain and unstable,
thus endangering his physical and emotional well-being); see also In re A.F., No. 10-19-
00335-CV, 2020 Tex. App. LEXIS 2328, at *48 (Tex. App.—Waco Mar. 19, 2020, no pet.)
(mem. op.) (“A parent’s continued drug use demonstrates an inability to provide for the
child’s emotional and physical needs and to provide a stable environment for the child.”
(citations omitted)). Furthermore, a drug test conducted shortly after removal of the
children revealed that P.W. was positive for methamphetamine.
Holly testified that she had last abused methamphetamine in February or March
of 2020 and speculated that P.W. and she may have come into contact with
methamphetamine when cleaning rooms at the motel where she was staying with
Randall and the children. This motel is known for criminal activity and drug trafficking.
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However, on cross-examination, Holly admitted that the chances of coming in contact
with methamphetamine by wiping down something was “very low.” Holly also
admitted to Chet Break, an investigator with the Texas Department of Family and
Protective Services, that she had used methamphetamine and marihuana in the past.
Vicki Dixon, a conservatorship worker for Child Protective Services, testified that Holly
refused thirty-nine drug test requests during this case. See In re C.R., 263 S.W.3d 368, 374
(Tex. App.—Dallas 2008, no pet.) (noting that a factfinder may reasonably infer from a
parent’s refusal to take a drug test that the parent was using drugs). Moreover, Holly did
not know if she would test positive for drugs on the day of trial. See In re V.V., 349 S.W.3d
548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (op. on reh’g) (en banc)
(“Intentional criminal activity that exposes a parent to incarceration is conduct that
endangers the physical and emotional well-being of a child.”).
Additionally, Holly allowed P.W. to be around Randall, who admitted to using
marihuana and methamphetamine in the past, who refused drug testing throughout the
case, who had an extensive criminal history, and who allegedly was violent with the
children. Specifically, Randall’s mother, Liz, recalled that E.W. had stated that “she wants
her father to quit fighting and pushing her brother [P.W.] up against the wall, like he was
a man, because he didn’t—he was in a bad mood one day. E.W. has been hit in the head
with a can of vegetables.” See In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th
Dist.] 2003, no pet.) (“Domestic violence, want of self-control, and propensity for violence
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may be considered as evidence of endangerment.”); see also In re K.A.S., 131 S.W.3d 215,
222 (Tex. App.—Fort Worth 2004, pet. denied) (noting that abusive or violent conduct by
a parent or other resident of a child’s home may produce an environment that endangers
the physical or emotional well-being of a child); Ziegler v. Tarrant County Child Welfare
Unit, 680 S.W.2d 674, 678 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.) (noting that
violent or abusive conduct by someone within the household is an environment that
endangers children). Holly also refused to complete her family service plan. See In re
R.F., 115 S.W.3d 804, 811 (Tex. App.—Dallas 2003, no pet.) (considering, as part of the
endangering-conduct analysis, a parent’s failure to complete a service plan).
Considering the evidence in the light most favorable to the factfinder’s findings
and considering the evidence as a whole, we conclude that a reasonable trier of fact could
have formed a firm belief or conviction that Holly knowingly placed or knowingly
allowed P.W. to remain in conditions or surroundings which endanger the physical or
emotional well-being of P.W. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D); see also In re
J.O.A., 283 S.W.3d at 344-45; In re J.F.C., 96 S.W.3d at 264-68; In re J.F.-G., 612 S.W.3d at
381-82. Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court’s conclusion that Holly’s parental rights to P.W. should be
terminated under section 161.001(b)(1)(D) of the Texas Family Code. See TEX. FAM. CODE
ANN. § 161.001(b)(1)(D); see also In re J.O.A., 283 S.W.3d at 344-45; In re J.F.C., 96 S.W.3d at
264-68; In re J.F.-G., 612 S.W.3d at 381-82.
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And because we have found that the evidence is legally and factually sufficient as
to at least one predicate act, we need not address Holly’s complaint regarding subsection
(b)(1)(O). See TEX. R. APP. P. 47.1.; see also In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (“Only
one predicate finding under section 161.001[(b)](1) is necessary to support a judgment of
termination when there is also a finding that termination is in the child’s best interest.”).
We overrule Holly’s first two issues.
In her third issue, Holly complains that the trial court failed to make findings
required by section 262.002(c) of the Texas Family Code at each hearing. Specifically,
Holly argues that such findings were not made in a status hearing order dated July 8,
2021, and in two permanency hearing orders filed on October 18, 2021, and February 10,
2022. Because a final order has been entered in this case, Holly’s challenge to these orders
is moot. See Rafferty v. Finstat, 903 S.W.2d 374, 378 (Tex. App.—Houston [1st Dist.] 1995,
writ denied) (“In general, temporary orders of a trial court issued during the pendency
of a proceeding are superseded by the trial court’s final order.”); Wright v. Wentzel, 749
S.W.2d 228, 234 (Tex. App.—Houston [1st Dist.] 1988, no writ) (declining to address
issues related to temporary orders because the trial court had entered a final order); see
also L.F. v. Dep’t of Family & Protective Servs., Nos. 01-10-01148-CV & 01-10-01149-CV, 2012
Tex. App. LEXIS 3481, at *38 (Tex. App.—Houston [1st Dist.] May 3, 2012, pet. denied)
(mem. op.) (“Because a final order has been entered in the case, appellant’s complaints
regarding a temporary order are moot.”). We therefore overrule Holly’s third issue.
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In her fourth issue, Holly asserts that the evidence is legally and factually
insufficient to show that termination of her parental rights is in the best interest of P.W.
In determining the best interest of a child, we consider a number of factors that were
outlined in the Texas Supreme Court’s Holley opinion. Holley v. Adams, 544 S.W.2d 367,
371-72 (Tex. 1976). This list is not exhaustive, but simply indicates factors that have been
or could be pertinent. Id. at 372. There is no requirement that all of the factors be proved
as a condition precedent to termination, and the absence of evidence regarding some
factors does not preclude a factfinder from determining that termination is in the child’s
best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence establishing one of the
predicate grounds under section 161.001(b)(1) also may be relevant to determining the
best interest of the child. Id. at 27-28.
The trial court heard evidence indicating that Holly and Randall engaged in
substance abuse before this proceeding, and a drug test revealed that Holly continued to
abuse drugs while this proceeding was pending. Evidence of a parent’s past pattern of
drug use is relevant not only to the stability of the home that the parents can provide, but
it is relevant to the emotional and physical needs of the children now and in the future
and to the emotional and physical dangers in which they could be placed now and in the
future. See Holley, 544 S.W.2d at 371-72. As noted earlier, a parent’s drug use is a
condition indicative of instability in the home environment because it exposes the child
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to the possibility that the parent may be impaired or imprisoned. See In re A.M., 495
S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.] 2016, pet denied).
The trial court also heard evidence Holly allowed Randall to be around P.W. even
though Randall has abused drugs, engaged in violent behaviors with P.W. to “make him
a man,” and has an extensive criminal record. This is supportive of the trial court’s best-
interest finding relating to the emotional and physical danger to P.W. now and in the
future. See Holley, 544 S.W.2d at 371-72; see also In re J.I.T.P., 99 S.W.3d at 846 (stating
domestic violence, even when the child is not the intended victim, supports a finding that
termination is in the child’s best interest). Also relevant to the emotional and physical
danger to P.W. now and in the future is Holly’s inability to keep P.W. enrolled in school.
Although Randall and Holly claimed to be homeschooling P.W. and taking steps to get
him enrolled in public school, Break testified that there is no evidence that Randall and
Holly took any steps to enroll P.W. in school.
P.W. was seven years old at the time of the termination trial and is doing well in
his placement with his older sister, E.W., with Randall’s mother, Liz. P.W. has bonded
with Liz’s family, and Liz testified that P.W. would ask her to come and get him after
Randall moved the children from Florida to Texas in April 2021. P.W. has stated that
living with Liz “felt like a real home” and that he was cared for there. This is in stark
contrast to P.W.’s living situation with Holly at a motel in Groesbeck, Texas, which is
known for drug and criminal activity, and where E.W. and P.W. lived in a motel room by
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themselves while Holly and Randall lived in a separate motel room nearby. P.W. wishes
for Liz to adopt him, and Liz wants to adopt both E.W. and P.W., as indicated in her
testimony and demonstrated by Liz filing suit in Florida for custody of the two children.
See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (stating that
stability and permanence are important to the upbringing of a child and affirming a
finding that termination was in the child’s best interest when the child was thriving in
foster care).
The record further demonstrates that Holly refused to complete her service plan
because she believed that, despite her history of drug abuse and history with the
Department, the removal of E.W. and P.W. was unjustified. A parent’s failure to
complete a family service plan may be considered in assessing whether termination was
in the best interest of the child. See, e.g., In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013)
(recognizing that a finding that a parent failed to complete court-ordered services can be
considered in support of a best-interest finding).
After viewing all of the evidence in the light most favorable to the findings
regarding the best interest of the children, we conclude that the evidence was sufficiently
clear and convincing that a reasonable factfinder could have formed a firm belief or
conviction that termination of the parent-child relationship between Holly and P.W. was
in P.W.’s best interest. We also conclude that, viewed in light of the entire record, any
disputed evidence could have been reconciled in favor of the trial court’s finding that
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termination of the parent-child relationship between Holly and P.W. was in P.W.’s best
interest or was not so significant that the trial court could not reasonably have formed a
firm belief or conviction that termination was in P.W.’s best interest. Therefore, after
considering the relevant factors under the appropriate standards of review, we hold the
evidence is legally and factually sufficient to support the trial court’s finding that
termination of the parent-child relationship between Holly and P.W. was in P.W.’s best
interest. We overrule Holly’s fourth issue.
Randall’s Issues
In two issues, Randall challenges the trial court’s order of termination, arguing
that the trial court: (1) lacked subject-matter jurisdiction under the UCCJEA because a
Florida court did not properly decline its home-state jurisdiction; and (2) erroneously
denied Randall’s motion for mistrial because he was denied access to the courts at a
critical stage of the proceedings.
THE TRIAL COURT’S JURISDICTION UNDER THE UCCJEA
In his first issue, Randall contends that the trial court lacked subject-matter
jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act
(“UCCJEA”) because: (1) the Texas and Florida courts denied Randall the opportunity
to be heard on the issue of jurisdiction an failed to record their communications; (2) the
Florida court failed to conduct a hearing as to whether Texas was the more appropriate
In the Interest of P.W. and E.W., children Page 11
forum; and (3) the Florida court failed to make required findings that it was an
inconvenient forum or that Texas was a more appropriate forum.
Standard of Review
“[S]ubject-matter jurisdiction is essential to a court’s power to decide a case.”
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). “[A] court cannot render
a judgment concerning matters over which it lacks subject-matter jurisdiction.” In re City
of Dallas, 501 S.W.3d 71, 73 (Tex. 2016) (orig. proceeding) (per curiam) (citing In re Doe,
444 S.W.3d 603, 608 (Tex. 2014) (orig. proceeding)). Accordingly, a judgment rendered
by a court without subject-matter jurisdiction is void. Engelman Irrigation Dist. v. Shields
Bros., Inc., 514 S.W.3d 746, 750 (Tex. 2017).
Whether a court has subject-matter jurisdiction is a question of law. Sampson v.
Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016) (citing Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)). We review any statutory-construction
questions involving the jurisdictional provisions of the UCCJEA de novo. Powell v. Stover,
165 S.W.3d 322, 324-25 (Tex. 2005) (citations omitted); see In re Walker, 428 S.W.3d 212,
215-16 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding).
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Facts
In the instant case, a final judgment of paternity as to E.W. was entered on
February 3, 2011, by the Eighth Judicial Circuit Court in Baker County, Florida.2 This
judgment established Randall as E.W.’s biological father and indicated that the Eighth
Judicial Circuit Court in Baker County, Florida retained “jurisdiction to enforce or modify
any of the other terms and provisions contained in this Consent Final Judgment upon
application by either party.” In May 2020, the Department received a referral regarding
E.W. and P.W., and Randall decided to send the children to Florida to live with Liz. The
children lived in Florida until April 2021, when Randall took the children back to Texas
shortly after Liz filed suit for custody of the children in Florida.
On April 30, 2021, the Department filed its original termination petition.
Thereafter, on May 14, 2021, pursuant to a request, the Texas Department of State Health
Services provided statements certifying that neither E.W. nor P.W. have been the subject
of a suit affecting the parent-child relationship in which a judgment was entered on or
after January 1, 1974.
At the final hearing on April 25, 2022, the trial judge announced that it had spoken
with the Florida court and that there was no barrier to jurisdiction. At the conclusion of
the evidence the following day, the trial judge stated:
2P.W. was born in Texas, and the record does not contain a custody determination made in Florida
as to P.W.
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All right. Well, I’m just going to say it. First of all, I’m not going to issue a
ruling today. I don’t think the case is appropriate for that.
And specifically, there’s been a lot of testimony regarding Florida
and the history in Florida that I was unaware of, and I want to re-confer
with the Florida courts. I do want to do that. Because there’s been
testimony—I was under the impression, based on my conversations with
the Florida court and the documents I have, it was simply a—an
adjudication of paternity and a special schedule, is what the order actually
says; but then there’s testimony that there might have been some
modification hearings and other things going on. There’s at least four
different cause numbers in Florida.
And I will state for the record, I did—when I talked to the Court
system in Florida, I had them run a search for not only EW, but for [Randall]
and for [Stacy—E.W.’s biological mother] and they did not find anything.
But I want to confirm kind of what I’ve heard in testimony. I want to make
sure—that is an issue that is the biggest issue here at the moment.
Now, we’re going to come back on May the 24th. We are set for a
trial. We will do this prior to it, and we will finish this up. At that time[,]
we will have a court reporter and we will get this taken care of.
The trial judge then noted that he had already left a message with the Florida judge to
confer further.
On May 23, 2022, Randall filed a pro se notice that his constitutional rights were
being violated because he was told that the Limestone County Detention Center does not
maintain a law library. The next day, the trial court held a hearing and, at the conclusion
of the hearing, signed an order making the following findings:
2.1. The Eighth Judicial Court of Circuit Court in and for Baker County in
the State of Florida acquired exclusive continuing jurisdiction over the child
subject of this suit in Cause No. 02-2009-DR-326, Final Judgment of Paternity.
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2.2. Subsequently, the child, [E.W.], and her brother, [P.W.], were brought
to Texas on or about April 7, 2021, at which time the Texas Trial Court
exercised Temporary Emergency Jurisdiction as was necessary to protect
the children from maltreatment or abuse. Texas Family Code § 152.204.
2.3. The children are currently placed in Florida with their paternal
grandmother, [Liz].
2.4. This Court has contacted Judge Gloria R. Walker, presiding judge of
the Eighth Judicial Circuit Court in and for Baker County, Florida[,] to
determine which State shall exercise jurisdiction over the children the
subject of this. The Eighth Judicial Circuit Court in and for Baker County,
Florida[,] has asserted its jurisdiction over the children the subject of this
suit and has determining that Texas is not the more appropriate forum to
make a final child custody determination[.]
2.5. A child custody determination has been made by said court as to one
or both of the subject children, and the children shall be remaining in
Florida. The Texas Department of Family and Protective Services
“Department” shall notify its child welfare counterparts in Florida that the
Courts have conferred, and that Florida is asserting its jurisdiction over the
children.
(Emphasis in original). The trial court then ordered that the children shall remain in Liz’s
custody in Florida and that the case be transferred to the Eighth Judicial Circuit Court in
Baker County, Florida.
On June 3, 2022, Judge Walker signed an order relinquishing jurisdiction.
Specifically, the order stated that: “to the extent Florida has continuing jurisdiction
regarding the custody of the children, Florida has no intent to exercise such jurisdiction
and such jurisdiction is relinquished to the state of Texas as to custody of the children.”
The trial court then reconvened for the conclusion of the trial on July 14, 2022,
whereby the trial court vacated his prior order transferring jurisdiction to Florida. And
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at the conclusion of the trial, the trial court signed an order terminating Randall’s parental
rights to both E.W. and P.W.
Analysis
Jurisdiction over child custody issues in Texas is governed by the UCCJEA. See
TEX. FAM. CODE ANN. §§ 151.001-.317. Florida has also adopted the UCCJEA. See FLA.
STAT. ANN. §§ 61.501-.542. Pursuant to the UCCJEA, the trial court that makes the “initial
child custody determination” generally retains exclusive continuing jurisdiction over any
future custody determinations. See TEX. FAM. CODE ANN. § 152.202(a); FLA. STAT. ANN. §§
61.514-.515; see also Saavedra v. Schmidt, 96 S.W.3d 533, 541 (Tex. App.—Austin 2002, no
pet.). As provided in section 152.102(3) of the Texas Family Code, “[c]hild custody
determination” means a judgment, decree, or other order of a court providing for legal
custody, physical custody, or visitation with respect to a child. TEX. FAM. CODE ANN. §
152.102(3); see FLA. STAT. ANN. § 61.503(3). “Initial determination” is defined as the first
child-custody determination concerning a particular child. TEX. FAM. CODE ANN. §
152.102(8); see FLA. STAT. ANN. § 61.503(8). Here, the record demonstrates that the initial
child-custody determination as to E.W. was made by the Eighth Judicial Circuit Court in
Baker County, Florida, in its February 3, 2011, Final Judgment of Paternity. Accordingly,
at the that time, the Florida court became the court of exclusive continuing jurisdiction as
to E.W. under the UCCJEA. See TEX. FAM. CODE ANN. § 152.502; see also FLA. STAT. ANN.
§§ 61.515. And absent the Florida court’s relinquishment of its jurisdiction, the Texas trial
In the Interest of P.W. and E.W., children Page 16
court was without jurisdiction to terminate Randall’s parental rights as to E.W. See TEX.
FAM. CODE ANN. § 152.503; FLA. STAT. ANN. § 61.515; see also J.W. v. Tex. Dep’t of Family &
Protective Servs., No. 03-19-00260-CV, 2019 Tex. App. LEXIS 7289, at *6 (Tex. App.—
Austin Aug. 20, 2019, pet. denied) (mem. op.).
However, in the absence of “exclusive continuing jurisdiction,” a Texas trial court
can exercise “temporary emergency jurisdiction” if the children are “present in this case”
and “it is necessary in an emergency to protect the child[ren]” because they are “subjected
to or threatened with mistreatment or abuse.” TEX. FAM. CODE ANN. § 152.204. In this
case, at the time the Department filed suit in April 2021, the record reflects that the
children were present in Texas and had been subjected to or threatened with
mistreatment or abuse. Thus, the evidence supports the trial court’s exercise of
“temporary emergency jurisdiction” under the UCCJEA. See id. And as such, the trial
court had jurisdiction to enter temporary orders for the protection of the children. See
Saavedra, 96 S.W.3d at 544 (“States have a parens patriae duty to children within their
borders, and the possibility that allegations of immediate harm might be true is sufficient
for a court to assume temporary emergency jurisdiction in the best interests of the child
under the UCCJEA.”); see also In re C.L.B., No. 10-13-00203-CV, 2014 Tex. App. LEXIS
1924, at **12-19 (Tex. App.—Waco Feb. 20, 2014, no pet.) (mem. op.).
“Generally, emergency jurisdiction confers only temporary jurisdiction to prevent
irreparable and immediate harm to children.” Abderholden v. Morizot, 856 S.W.2d 829,
In the Interest of P.W. and E.W., children Page 17
833-34 (Tex. App.—Austin 1993, no writ). “Absent the satisfaction of other jurisdictional
prerequisites, the UCCJEA ‘does not confer upon the state exercising emergency
jurisdiction the authority to make a permanent custody disposition.’” J.W., 2019 Tex.
App. LEXIS 7289, at *7 (quoting Abderholden, 856 S.W.2d at 834). In this case, the
jurisdictional prerequisites were satisfied. It is undisputed that the trial court conferred
with the Florida court, which relinquished jurisdiction to the State of Texas. See TEX. FAM.
CODE ANN. § 152.207. Only after the Florida court relinquished jurisdiction did the trial
court proceed to terminate Randall’s parental rights. See, e.g., In re J.T.R., No. 13-17-00676-
CV, 2018 Tex. App. LEXIS 3115, at **4-6 (Tex. App.—Corpus Christi May 3, 2018, no pet.)
(mem. op.) (concluding that the trial court did not have jurisdiction to terminate parental
rights because the Mississippi court had made a prior custody determination for the
children and there was “no pleading or proof in the record to support a conclusion that
the Mississippi court relinquished its exclusive continuing jurisdiction”). We therefore
conclude that at the time the trial court rendered its judgment terminating Randall’s
parental rights, it had acquired jurisdiction to modify the Florida court’s prior custody
determination. See TEX. FAM. CODE ANN. § 152.203(1) (specifying the requirements for a
Texas trial court to modify a prior custody determination of a court of exclusive
continuing jurisdiction); see also J.W., 2019 Tex. App. LEXIS 7289, at **8-9; In re C.L.B., 2014
Tex. App. LEXIS 1924, at **12-19.
In the Interest of P.W. and E.W., children Page 18
Despite the foregoing, Randall contends that: (1) the Texas and Florida courts
denied him the opportunity to be heard, see TEX. FAM. CODE ANN. § 152.110(c); FLA. STAT.
ANN. §§ 61.511, 61.518; (2) the Texas and Florida courts failed to record their
communications., see TEX. FAM. CODE ANN. § 152.110(f); FLA. STAT. ANN. § 61.511; (3) the
Florida court failed to hold a hearing or receive evidence regarding jurisdiction, see TEX.
FAM. CODE ANN. § 152.207; FLA. STAT. ANN. § 61.520; and (4) the Florida court failed to
find that Texas was a more appropriate forum. See TEX. FAM. CODE ANN. § 152.207; see
also FLA. STAT. ANN. § 61.520.
Randall does not cite any relevant authority for the proposition that a violation of
the above procedural requirements prevented the trial court from acquiring subject-
matter jurisdiction, and we have found none. See, e.g., In re J.P., 598 S.W.3d 789, 799 (Tex.
App.—Fort Worth 2020, pet. denied) (“Section 152.110 is a procedural rather than a
jurisdictional statute.”); see Monk v. Pomberg, 263 S.W.3d 199, 206 (Tex. App.—Houston
[1st Dist.] 2007, no pet.) (“Because the matter was not brought to the trial court by motion
or the request of another court, Lisa has not complied with the procedural requirements
in section 152.207 of the Family Code.”). Although the trial court did not comply fully
with the above procedural requirements, the record reflects that the trial court conferred
with the Florida court and obtained an order from the Florida court declining to exercise
jurisdiction; provided notice to the parties of its conversations with the Florida court; and
held a hearing where jurisdiction was addressed.
In the Interest of P.W. and E.W., children Page 19
Under similar circumstances, other courts have concluded that the trial court
substantially complied with the essential procedural requirements of the UCCJEA and
fully satisfied the central goals of the Act. See J.W., 2019 Tex. App. LEXIS 7289, at *10
(concluding that the trial court substantially complied with the essential procedural
requirements of the UCCJEA where the trial court conferred with the Nevada court and
obtained an order from the Nevada court declining to exercise jurisdiction; provided
notice to the parties of the conversations with the Nevada court; held a hearing on the
mother’s plea to the jurisdiction; and allowed the parties to submit briefing on the issue
before making a final decision on jurisdiction); In re A.A.G., No. 04-20-00585-CV, 2021
Tex. App. LEXIS 5981, at *10 (Tex. App.—San Antonio July 28, 2021, no pet.) (mem. op.)
(“Because the record establishes that the trial court conferred with the Minnesota court,
and that the Minnesota court relinquished its exclusive continuing jurisdiction, the trial
court properly assumed jurisdiction over the children and had subject matter jurisdiction
to render its final order terminating M.E.’s parental rights.” (citation omitted)); see also In
re Cristian I, 224 Cal. App. 4th 1088, 1099, 169 Cal. Rptr. 3d 265 (Cal. Ct. App. 2014).
Therefore, we conclude that any error in the trial court’s procedures were harmless. See
J.W., 2019 Tex. App. LEXIS 7289, at *10, see also In re Cristian I, 224 Cal. App. 4th at 1099.
Additionally, we note that Randall did not raise these complaints in the trial court
below, although he had the opportunity to do so at the April 25, April 26, and May 24
hearings. Thus, Randall has waived any error in the trial court’s procedure. See TEX. R.
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APP. P. 33.1(a)(1); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (concluding that the
failure to raise a due-process claim in the trial court waives the complaint on appeal); see
also J.W., 2019 Tex. App. LEXIS 7289, at **10-11 (concluding that father waived his
complaints regarding the procedural requirements of the UCCJEA by failing to object in
the trial court); Belmonte v. Belmonte, No. 09-07-225-CV, 2008 Tex. App. LEXIS 3503, at *11
(Tex. App.—Beaumont May 15, 2008, no pet.) (mem. op.) (concluding that by failing to
object to the trial court’s failure to have its conversation with the New York court
recorded, the parties waived error).
And with respect to Randall’s complaints regarding the actions of the Florida
court, we note that this Court does not have jurisdiction to entertain such complaints and
that Randall waived these complaints by not objecting in the trial court. See TEX. R. APP.
P. 33.1(a)(1); Dreyer, 871 S.W.2d at 698; see also In re A.R.C., 2020 Tex. App. LEXIS 1846, at
*13-14 (Tex. App.—San Antonio Mar. 4, 2020, no pet.) (mem. op.) (“We decline to review
the evidence regarding the convenience of the forum because, as previously stated, that
determination was for the Florida court to make. . . . Any review of the Florida court’s
determinations that it retains exclusive, continuing jurisdiction and that Texas is not a
more convenient forum must be pursued in the Florida courts.” (internal citation
omitted)); In re J.W., 2019 Tex. App. LEXIS 7289, at **10-11. We overrule Randall’s first
issue.
In the Interest of P.W. and E.W., children Page 21
RANDALL’S MOTION FOR MISTRIAL
In his second issue, Randall asserts that the trial court abused its discretion by
denying his motion for mistrial because he was denied access to a law library despite
numerous requests.
We review the trial court’s ruling on a motion for mistrial for an abuse of
discretion. Schlafly v. Schlafly, 33 S.W.3d 863, 868 (Tex. App.—Houston [14th Dist.] 2000,
pet. denied); see Tex. Turnpike Auth. v. McCraw, 458 S.W.2d 911, 913 (Tex. 1970). A trial
court abuses its discretion when it acts arbitrarily or unreasonably or without reference
to guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)
(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
As stated earlier, on May 23, 2022, Randall filed a pro se notice that his
constitutional rights were being violated because he was told that the Limestone County
Detention Center does not maintain a law library. Further, at the July 14, 2022
continuation of trial, Randall orally moved for a mistrial, arguing that the lack of access
to the law library prevented him from presenting his request for habeas-corpus relief to
have his children immediately released back to him.
A review of the record shows that Randall filed his application for writ of habeas
corpus prior to his incarceration and that this filing, as well as his May 23, 2022 pro se
notice, contain citations to case law and the Texas Constitution. Moreover, Randall
elected to represent himself and did not articulate what information that he was deprived
In the Interest of P.W. and E.W., children Page 22
of and how it would have been useful to his habeas application or his May 23, 2022 pro
se notice. Furthermore, Randall’s argument is that jail officials deprived him of his
constitutional rights by not allowing him access to a law library. Yet, Randall took no
action against jail officials, and Randall admitted in his May 23, 2022 pro se notice that
jail officials told him that whatever information he sought could be obtained by other
means that Randall apparently did not explore.
Based on the foregoing, we cannot say that the trial court abused its discretion by
denying Randall’s motion for mistrial. We overrule Randall’s second issue.
Conclusion
Having overruled all of Holly and Randall’s issues on appeal, we affirm the
judgment of the trial court.
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson,
and Justice Smith
Affirmed
(Chief Justice Gray concurring with a note)*
Opinion delivered and filed January 4, 2023
[CV06]
*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.)
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