in the Interest of J.P. and A. P., Children ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00360-CV
___________________________
IN THE INTEREST OF J.P. AND A. P., CHILDREN
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-107308-18
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Opinion by Justice Kerr
OPINION
The trial court terminated Father’s and Mother’s parental rights to their
children, J.P. (John) and A.P. (Ann).1 On appeal, Mother asserts in a single issue that
the termination judgment is void because a Michigan court had exclusive, continuing
jurisdiction over the children, and in a slight variation on Mother’s issue, Father
asserts in his sole issue that because the Texas court did not follow all statutory
procedures, it “improperly assumed jurisdiction.” Regardless of how Mother and
Father worded their respective issues, they both challenge subject-matter jurisdiction
and claim that the judgment is void. We disagree.
Under the Uniform Child Custody Jurisdiction and Enforcement Act, the
Michigan court waived its exclusive, continuing jurisdiction—which had been
acquired by its entering earlier custody orders involving John and Ann—and the
Texas court then properly exercised modification jurisdiction. See Tex. Fam. Code
Ann. §§ 152.201–.203. We affirm the trial court’s judgment.
Chronology
• In 2009, a Michigan trial court identified Father and Mother as John’s
biological parents and signed a judgment awarding Mother “sole legal
and physical custody of [John].”
1
We refer to the parents simply as Father and Mother and to the children by
the aliases of John and Ann. See Tex. R. App. P. 9.8(b)(2) (requiring courts to use
aliases to refer to minors in parental-rights-termination cases and—if needed to
protect the minors’ identities—to also use aliases when referring to family members);
see also Tex. Fam. Code Ann. § 109.002(d).
2
• In 2012, the same Michigan trial court identified Father and Mother as
Ann’s biological parents and signed a judgment awarding Mother “sole
legal and physical custody of [Ann].” In that judgment, the Michigan trial
court consolidated John’s and Ann’s cases.
• In November 2016, Mother and the children moved to Texas. Father
remained in Michigan.
• In April 2018, the Texas Department of Family and Protective Services
filed in Texas its original petition invoking an emergency removal of
John and Ann from Mother’s custody and seeking to terminate Father’s
and Mother’s parental rights to both John and Ann.
• In May 2018, Father was charged in Michigan with three counts of
delivering or manufacturing a controlled substance.
• Unrelatedly but also in May 2018, the Department filed its first amended
termination petition. In it, the Department stated, “Continuing
jurisdiction over the children has been established in another Court, and
a timely transfer will be sought.” Confusingly, though, two affidavits
dated April 2018 and submitted in support of removing the children
contain a paragraph headed “Information to be submitted to the Court
Pursuant to the Uniform Child Custody Jurisdiction and Enforcement
Act” stating that the Department “does not have information of any
proceeding concerning the child pending in a court of this or any other
state.”
• In Mother’s July 2018 answer to the Department’s petition, she stated
that “[t]his Court has acquired and retains continuing, exclusive
jurisdiction of this suit and of the children the subject of this suit as a
result of prior proceedings,” presumably referring to the Texas court’s
initial emergency orders. Father entered a general denial.
• From May 2018 until August 2019, neither the parties nor the trial court
addressed any jurisdictional issue.
3
• On the morning of the scheduled jury trial on termination, August 20,
2019, Mother filed a motion to dismiss for lack of jurisdiction asserting
that the Michigan trial court had exclusive, continuing jurisdiction.2
The Jurisdictional Proceedings
The trial court heard Mother’s motion to dismiss that same morning, initially
ordering a brief recess so that it and the other parties could review Mother’s motion
and so that it and the Department could make “some phone calls.”
After the break, the trial court reported,
So I just came off a phone call with Judge Pittman in the 14th Circuit
Court in Michigan in Muskegon County and we conversed a little bit
about this case, and it was -- the case in Michigan started out as a
paternity establishment and so that’s why the Court has jurisdiction and
gave sole conservatorship to mother, legal possession as well as physical
possession.
It appears that in this discussion, this mother and the child [have]
contacts in Texas now without any significant contacts in Michigan, and
so Judge Pittman is willing to waive jurisdiction in order for us to
proceed because he felt like, in his words, there were concerns about the
welfare of the child that have been moved all the way to the point of
final trial that he didn’t want to frustrate that process, kind of giving full
faith [to] Texas’[s] concern and child welfare laws and so what Judge
Pittman asked is -- I did ask for a written confirmation. He did instruct
me that he wanted our social services person or kind of a thereby
counterpart -- kind of the District Attorney’s Office to go ahead and
send him [an] e-mail directly stating that the child did have contacts here
2
Mother sought dismissal under Family Code Section 155.102: “If a court in
which a suit is filed determines that another court has continuing, exclusive
jurisdiction of the child, the court in which the suit is filed shall dismiss the suit
without prejudice.” Tex. Fam. Code Ann. § 155.102. As we will discuss, although a
Michigan court had exclusive, continuing jurisdiction when the Department filed its
petition and when Mother filed her motion, that court waived its jurisdiction under
the UCCJEA.
4
in Texas -- significant contacts here in Texas without significant contacts
in Michigan, the mother and child, and that -- is asking the Court to
confirm that they are willing to waive jurisdiction and so here is Judge
Pittman’s e-mail address that he asked me to give to you and that he is
waiting by the computer now for that e-mail so he can confirm.
When questions arose about whether the Michigan trial judge was aware that
Father was still in Michigan,3 the trial court responded,
I did inform the other judge that the father -- I was not aware if he was
in Michigan or not. Those were specifically my words, that I couldn’t
confirm that the father did not have ties there, but Judge Pittman
reiterated that the mother had sole conservatorship of the child, like the
father didn’t have rights and kind of based on the context of the
conversation, it seemed like that was a significant factor for Judge
Pittman to make the decision.
To address this concern, the trial court asked the Department, when e-mailing
the Michigan trial court, to include certain information:
[THE COURT:] So Judge Pittman is waiting. Okay.
[Department’s counsel]: Yes.
THE COURT: So -- that -- he specifically instructed for our
governmental agency to send him an e-mail directly. So what I will want
-- I think the key issue is, there is a previous order out of Michigan. He
3
Mother objected as follows:
Judge, for the record, I’m going to make an objection under Section
152.110, communication between the Court. First of all, I wasn’t on
notice until I returned to the room, the District Attorney had handed
you the phone with Judge Pittman on the line. We had a right to be a
part of that conversation to offer facts. The father still lives in Michigan.
I’m not sure if the Court did that. We were entitled to a record of the
discussion you had with Judge Pittman and there’s no record. So I would
object to those discussions.
5
does have the cause number, all right, and that the mother has sole
conservatorship over the child. Legal and physical custody, I think is
what their language is and that the father is currently still a Michigan
resident. He’s incarcerated in Michigan, all right, and that we’re looking
for that court to either waive jurisdiction or -- and how long has the
child and Mom lived here?
[Department’s counsel]: My understanding is --
[Mother’s counsel]: 2017.[4]
THE COURT: 2017. Okay. And put the date the mother and child
moved here and with those facts, I think those are the key -- as a judge,
those are the key issues I’m looking at; when did Mom get to my state,
who has legal possession of the child, and what about the father who is
not terminated, where is he a resident of.
And so I -- that’s what I would consider. If Judge Pittman wants
to take those facts and then make his decision on that then we can go
forward.
During another short break beginning at 9:24 a.m., the Department sent the e-
mail to the Michigan trial court, all the attorneys, and the Texas trial court. The
Michigan trial court responded by e-mail at 9:46 a.m. 5 When the hearing resumed at
9:54 a.m., the Texas trial court allowed Mother to present and argue her motion,
which Father joined.
Near the hearing’s end, while ruling, the trial court read the Michigan judge’s
e-mail into the record:
At the termination trial, Mother testified that she and the children had moved
4
to Texas in November 2016. John’s teacher stated that John became her student in
2017 during the 2016–2017 school year.
5
None of these e-mails is in the record.
6
So [Mother’s counsel], regarding your Motion to Dismiss, while the
Court will find that the State of Michigan did have continuing exclusive
jurisdiction over this child prior to the date of this filing and even prior
to today, the statute does allow courts to confer because the
overwhelming interest is the best interest of the child and to ensure that
things are done expediently and in a manner that’s consistent with what
is best for children . . . .
So there was a conference. There seems to be -- or at least the
Court is unaware of any kind of timeline or requirement or restriction on
when courts can confer and grant or waive jurisdiction [over] a child. I
think at the time of final order, this Court would still have to have
jurisdiction over a child, and you raise a good point in finding this
previous [Michigan] order from 2008. There is an e-mail sent by Judge
Pittman of [Muskegon] County, Michigan[,] which I believe has gone to
all the parties as well as this Court that states: [Department’s counsel],
pursuant to consultation with [the Tarrant County juvenile-district-court
judge], this Court is satisfied that the best interest of the minor children
and their mother, who have resided in Tarrant County since 2017, in the
interest of justice are best served by this Court hereby declining the
retention of jurisdiction over these parties and the now dormant
proceedings in Case 08-241303-DP, regards the Honorable Gregory C.
Pittman, Presiding Judge, 14th Circuit Court-Family . . . Division
Muskegon County, Michigan.
After some discussion about the fact that two cause numbers were involved in
the Michigan proceedings, the trial court added these comments and denied the
motion to dismiss:
So the concern for this Court is ensuring that we have final resolution
for the children in an expeditious manner and given the significant
contacts with the children and the mother to the [S]tate of Texas, despite
the Department[’s] not having looked up the [S]tate of Michigan which I
feel like is a duty the Department has, certainly not anybody else’s, if
anything, as to Plaintiff or the Petitioner but certainly not disregarding
the fact that they represent the State of Texas, it is this Court’s opinion
that jurisdictional issues are satisfied with the State of Texas[’s] obtaining
jurisdiction over the children regarding this matter. So the Motion to
Dismiss is denied.
7
Following a jury verdict in the Department’s favor, the trial court entered a
termination order that included the following language: “This court conferred with
the 14th Judicial Circuit Court of Muskegon Co[.], MI[,] and the judge of said court
waived jurisdiction.”
Standard of Review
Whether a court has subject-matter jurisdiction is a question of law that we
review de novo, and whether undisputed evidence of jurisdictional facts established a
trial court’s jurisdiction is also a question of law. In re T.B., 497 S.W.3d 640, 644 (Tex.
App.—Fort Worth 2016, pet. denied).
The UCCJEA
Texas has adopted the UCCJEA, which is codified in Chapter 152 of the
Family Code. See Tex. Fam. Code Ann. §§ 152.001–.317. The UCCJEA encourages
national uniformity in child-custody disputes and attempts to address problems
endemic to American families’ increasing mobility, such as
• competing jurisdictions entering conflicting interstate child-custody orders,
• forum shopping, and
• the drawn out and complex child-custody legal proceedings often encountered
by parties where multiple states are involved.
T.B., 497 S.W.3d at 644–45 (citing In re Dean, 393 S.W.3d 741, 743 (Tex. 2012) (orig.
proceeding)). In the past, state courts often modified custody each time a child moved
from one state to another, and those orders often conflicted. Dean, 393 S.W.3d at 743.
8
To minimize these conflicts, the UCCJEA provides guidance on how to determine
which state has jurisdiction and, at the heart of that determination, makes the child’s
“home state” the primary factor. Id. Most states—including Michigan and Texas—
have adopted the Act. See id.; T.B., 497 S.W.3d at 645; see also Mich. Comp. Laws Ann.
§§ 722.1101–.1406 (2020); Tex. Fam. Code Ann. §§ 152.001–.317. A proceeding that
is brought to terminate parental rights falls within the UCCJEA’s definition of a
“child custody proceeding.” See Tex. Fam. Code Ann. § 152.102(4) (“The term
includes a proceeding for . . . termination of parental rights.”).
The UCCJEA identifies four kinds of jurisdiction:
• “Initial Child Custody Jurisdiction” (id. § 152.201);
• “Exclusive Continuing Jurisdiction” (id. § 152.202);
• “Jurisdiction to Modify Determination” (id. § 152.203); and
• “Temporary Emergency Jurisdiction” (id. § 152.204).6
A. Modifying another state’s custody determination
A child-custody determination is a “modification” under the UCCJEA when it
“changes, replaces, supersedes, or is otherwise made after a previous determination
In an emergency situation, the UCCJEA gives states broad powers to act first
6
and sort out jurisdictional issues later. Id. Neither Father nor Mother challenges the
trial court’s authority to have entered emergency orders under Section 152.204, nor do
they raise an appellate issue complaining about any failure to follow the steps laid out
in Sections 152.204(c) and (d) for communicating and coordinating with the Michigan
court at the outset of this case. In any event, the record does not indicate that the trial
court knew of the Michigan orders until the morning of trial in August 2019.
9
concerning the same child, whether or not it is made by the court that made the
previous determination.” See id. § 152.102(12). Because it is undisputed that a
Michigan court had entered earlier custody orders involving John and Ann, we look to
Section 152.203 to evaluate whether the Texas trial court had jurisdiction to do
something different:
Except as otherwise provided in Section 152.204 [dealing with
emergency jurisdiction], a court of this state [Texas] may not modify a
child custody determination made by a court of another state [Michigan]
unless a court of this state [Texas] has jurisdiction to make an initial
determination under Section 152.201(a)(1) or (2) and:
(1) the court of the other state [Michigan] determines it no longer has
exclusive continuing jurisdiction under Section 152.202 or that a
court of this state [Texas] would be a more convenient forum under
Section 152.207; or
(2) a court of this state [Texas] or a court of the other state
[Michigan] determines that the child, the child’s parents, and any
person acting as a parent do not presently reside in the other state
[Michigan].
Id. § 152.203 (altering wording to apply statute to facts of this case).
Because at the time of trial, Father still resided in Michigan, Section
152.203(2) did not apply. Thus, for the trial court here to have had modification
jurisdiction, two things must have been true:
• a Texas court could have made an initial custody determination, and
• the Michigan court determined that it would no longer exercise exclusive,
continuing jurisdiction or that Texas was the more convenient forum.
We examine each factor in turn.
10
1. Initial child-custody jurisdiction
As Section 152.203 provides, initial child-custody jurisdiction is a prerequisite
to modification jurisdiction, and in that regard it is not an end in itself but is rather a
conduit to an end. “Section 152.201(a) is a procedural mechanism for determining
jurisdiction.” Dean, 393 S.W.3d at 749. Under Section 152.201(a), a court may exercise
initial child-custody jurisdiction in one of four disjunctive scenarios, only the first of
which we need consider because it applies here:
(a) Except as otherwise provided in Section 152.204 [emergency jurisdiction], a
court of this state has jurisdiction to make an initial child custody determination
only if:
(1) this state is the home state of the child on the date of the
commencement of the proceeding . . . .
Tex. Fam. Code Ann. § 152.201(a)(1); see Mich. Comp. Laws § 722.1201.
In other words, assuming no previous custody proceeding in another state,
could a Texas court have been the first to decide a custody issue?7 The first-listed way
to answer that question “yes” is where Texas is a child’s current home state. Although
the UCCJEA has several branching paths when it comes to deciding whether
modification jurisdiction exists, our road forward is made simpler here because at the
time the Department filed this case, no one disputes that Texas was John’s and Ann’s
“home state,” which the UCCJEA defines as
7
The Family Code defines an “initial determination” as “the first child custody
determination concerning a particular child.” See Tex. Fam. Code Ann. § 152.102(8).
11
the state in which a child lived with a parent or a person acting as a
parent for at least six consecutive months immediately before the
commencement of a child custody proceeding. . . .
Tex. Fam. Code Ann. § 152.102(7).8
The first prerequisite for the trial court here to have exercised modification
jurisdiction is thus satisfied.
2. The issuing court’s waiving its jurisdiction
Under the UCCJEA, once an initial custody determination is made, the issuing
court—the Michigan court under these facts—retains “exclusive continuing
jurisdiction” over all further custody orders and proceedings. See Tex. Fam. Code
Ann. § 152.202; see also Mich. Comp. Laws § 722.1202.
The UCCJEA gives that court the sole power to decide whether it will continue
to exercise that jurisdiction. See In re Tieri, 283 S.W.3d 889, 896 (Tex. App.—Tyler
2008) (orig. proceeding) (stating that when New Jersey had made initial custody
determination, “[o]nly a New Jersey court [could] determine that New Jersey ha[d]
lost exclusive, continuing jurisdiction based on” the child’s, or the child’s and one
parent’s, lack of significant connection with the state and based on the fact that
substantial evidence was no longer available in New Jersey “concerning the child’s
care, protection, training, and personal relationships”); Saavedra v. Schmidt, 96 S.W.3d
A child’s home state can change as a family moves. Here, Michigan was the
8
children’s home state when the Michigan court entered custody orders in 2009 and
2012, but the children had been living with Mother in Texas for more than six
consecutive months when the Department filed its petition.
12
533, 541, 542 (Tex. App.—Austin 2002, no pet.) (noting that the “California court
retain[ed] exclusive continuing jurisdiction and [was] the only state that [could]
determine if it [would] continue to exercise that jurisdiction”; even if Texas was the
more appropriate forum, “the California court must make this determination before a
court of this state may modify the California court’s child custody determinations”).
Because only Michigan may continue to exercise or decline to exercise its own
jurisdiction, we look to the Michigan UCCJEA exclusive-jurisdiction provision:
722.1202 Exclusive, continuing jurisdiction
Sec. 202. (1) Except as otherwise provided in section 204, a court
of this state that has made a child-custody determination consistent with
section 201 or 203 has exclusive, continuing jurisdiction over the child-
custody determination until either of the following occurs:
(a) A court of this state determines that neither the child, nor
the child and 1 parent, nor the child and a person acting as a parent
have a significant connection with this state and that substantial
evidence is no longer available in this state concerning the child’s
care, protection, training, and personal relationships.
(b) A court of this state or a court of another state determines
that neither the child, nor a parent of the child, nor a person acting as
the child’s parent presently resides in this state.
(2) A court of this state that has exclusive, continuing jurisdiction
under this section may decline to exercise its jurisdiction if the court
determines that it is an inconvenient forum under section 207.
(3) A court of this state that has made a child-custody
determination and that does not have exclusive, continuing jurisdiction
under this section may modify that child-custody determination only if it
has jurisdiction to make an initial child-custody determination under
section 201.
13
Mich. Comp. Laws § 722.1202 (footnotes omitted).9
The question for our Texas trial court was whether the Michigan trial court
effectively concluded that “neither the child, nor the child and 1 parent, nor the child
and a person acting as a parent, have a significant connection with [Michigan] and that
substantial evidence is no longer available in [Michigan] concerning the child’s care,
protection, training, and personal relationships.” See Mich. Comp. Laws
§ 722.1202(1)(a); cf. Tex. Fam. Code Ann. § 152.202(a)(1). 10
This was a question that only the Michigan court was empowered to answer,
and the UCCJEA does not prescribe any particular form or verbiage by which a court
with exclusive, continuing jurisdiction demurs to a state, like Texas, that has acquired
initial-determination jurisdiction by being a child’s home state and that could
therefore be given modification jurisdiction. We have before us only the Texas court’s
9
This section of the UCCJEA as adopted in Texas differs slightly. Texas’s
version has no counterpart to Section 722.1202(2), which in Michigan refers expressly
to Section 207 of the UCCJEA dealing with declining jurisdiction on the basis of the
issuing state’s being an inconvenient forum. Compare Tex. Fam. Code Ann.
§§ 152.202, .207, with Mich. Comp. Laws §§ 722.1202, .1207. The inconvenient-forum
concept is present in both states’ UCCJEA section on modification jurisdiction. See
Tex. Fam. Code Ann. § 152.203(1); see also Mich. Comp. Laws § 722.1203(a).
10
Another question could have been whether the Michigan court determined
that it should “decline to exercise jurisdiction” because Michigan was an
“inconvenient forum” under UCCJEA Section 207, but from the Texas judge’s
statements in the record about his discussion with his Michigan counterpart—for
example, “It appears that in this discussion, this mother and the child ha[ve] contacts
in Texas now without any significant contacts in Michigan, and so Judge Pittman is
willing to waive jurisdiction”—the Michigan court made its decision based on Section
202(1)(a) rather than 202(2)/207.
14
characterization of its communications with the Michigan court and the Michigan
court’s e-mail, as it was dictated into the record:
[P]ursuant to consultation with [the Tarrant County juvenile-district-
court judge], this Court is satisfied that the best interest of the minor
children and their mother, who have resided in Tarrant County since
2017, in the interest of justice are best served by this Court hereby
declining the retention of jurisdiction over these parties and the now
dormant proceedings in Case 08-241303-DP, regards the Honorable
Gregory C. Pittman, Presiding Judge, 14th Circuit Court-Family . . .
Division Muskegon County, Michigan.
Courts are to interpret the UCCJEA according to its purposes, which are to
promote cooperation with the courts of other states so that the state best positioned
to decide custody issues does so and to promote consistent and speedy resolution of
child-custody issues involving multiple states. T.B., 497 S.W.3d at 651. Although we
do not necessarily endorse the manner in which the two courts communicated,
requiring a formal order or the e-mail itself when the parties do not dispute what the
e-mail contained would defeat the UCCJEA’s purposes in these circumstances. Cf.,
e.g., Rainbow v. Ransom, 990 A.2d 535, 536 (Me. 2010) (concluding that Maine properly
exercised jurisdiction to modify Hawaii custody determination when Hawaii court had
informed Maine court during telephone conference that it was declining jurisdiction);
Zirkle v. Franklin, No. 282826, 2008 WL 4228282, at *1 (Mich. Ct. App. Sept. 16,
2008) (not designated for publication) (holding that letter from court of state in which
child resided implied that it had acquiesced to Michigan court’s exercising UCCJEA
15
jurisdiction). The record here sufficiently shows that the Michigan court waived its
exclusive, continuing jurisdiction, as was its right.
Put differently, despite not using the statutory language in its e-mail, the
Michigan court’s missive effectively determined that the children and Mother no
longer had a significant connection to Michigan and that Michigan no longer had
substantial evidence available concerning the children’s care, protection, training, and
personal relationships. See Mich. Comp. Laws § 722.1202(1)(a); Tex. Fam. Code Ann.
§ 152.202(a)(1). 11
The Michigan court could and did decline to exercise its exclusive, continuing
jurisdiction under the UCCJEA. See Mich. Comp. Laws § 722.1202(1)(a); Tex. Fam.
Code Ann. § 152.202(a)(1). As a result, the Texas court could and did acquire
modification jurisdiction under Section 152.203.
B. Father’s and Mother’s procedural complaints
Although not framed as a separate issue on appeal, as part of their jurisdictional
attack Father and Mother also complain about the procedures by which the Texas trial
court and the Michigan court communicated and resolved the jurisdictional issue
before them, arguing a failure to comply with Section 152.110. See Tex. Fam. Code
Although irrelevant to the purely jurisdictional issue before us, the record
11
seems to support that determination. Father had remained in Michigan when Mother
and the children moved to Texas in November 2016, Father was currently
incarcerated in Michigan, and all the facts pertinent to the termination proceeding—
the Department’s involvement, the children’s removal, and all that followed—had
occurred in Texas.
16
Ann. § 152.110. That Section of the UCCJEA addresses how courts may exchange
information:
(a) In this section, “record” means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium and
is retrievable in perceivable form.
(b) A court of this state may communicate with a court in another state
concerning a proceeding arising under this chapter.
(c) The court may allow the parties to participate in the communication.
If the parties are not able to participate in the communication, they must
be given the opportunity to present facts and legal arguments before a
decision on jurisdiction is made.
(d) If proceedings involving the same parties are pending simultaneously
in a court of this state and a court of another state, the court of this state
shall inform the other court of the simultaneous proceedings. The court
of this state shall request that the other court hold the proceeding in that
court in abeyance until the court in this state conducts a hearing to
determine whether the court has jurisdiction over the proceeding.
(e) Communication between courts on schedules, calendars, court
records, and similar matters may occur without informing the parties. A
record need not be made of the communication.
(f) Except as otherwise provided in Subsection (e), a record must be
made of any communication under this section. The parties must be
informed promptly of the communication and granted access to the
record.
Id. § 152.110.
Father complains that the trial court failed to comply with subsections (c) and
(f) by not allowing appellants’ counsel to be on the phone call with the Michigan court
to “present facts and legal arguments before a decision on jurisdiction [was] made,” id.
17
§ 152.110(c), and by not ensuring that the Michigan court’s e-mail was put into the
record, id., § 152.110(f). Mother’s complaint on appeal is that
[t]he phone call on the day of final trial between courts and the
referenced e[-]mail[,] which is not a part of the record[,] falls woefully
short of meeting the requirements of Chapter 152, Chapter 155[,] or
Chapter 262.203. None of the parties were given the opportunity to
present facts and legal arguments before a decision on jurisdiction was
made; a motion to transfer was never submitted nor was there ever an
order to transfer.
Section 152.110 is a procedural rather than a jurisdictional statute. See J.W. v.
Tex. Dep’t of Family & Protective Servs., No. 03-19-00260-CV, 2019 WL 3922795, at
*4 (Tex. App.—Austin Aug. 20, 2019, pet. denied) (mem. op.); see also In re Cristian I.,
224 Cal. App. 4th 1088, 1099 (Cal. Ct. App. 2014).
J.W. involved a complaint much like Father’s and Mother’s. There, in addition
to claiming noncompliance with two aspects of Section 152.204, the appellant father
argued violations of Section 152.110(c) and (f): the trial court failed to give the parties
an opportunity to present facts and arguments before a final jurisdictional decision
was made, as Subsection (c) called for, or to “make a record of the telephonic hearing
between the Nevada and Texas courts and grant the parties access to the record of
that hearing,” as the father claimed Subsection (f) required. J.W., 2019 WL 3922795,
at *3. The appellant asserted that these violations “prevented the trial court from
obtaining subject-matter jurisdiction and violated the father’s due-process rights.” Id.
The Austin court disagreed: “The father cites to no cases holding that a violation of
[Section 152.204’s and Section 152.110’s] procedural requirements prevents the trial
18
court from acquiring subject-matter jurisdiction, and we have found none.” Id. at *4 &
n.3 (compiling cases holding that “the failure to comply with similar procedural
requirements in the Texas Family Code does not deprive the trial court of subject-
matter jurisdiction”). The J.W. court also noted that apart from the jurisdictional issue,
the trial court had in any event substantially complied with Section 152.110 by, among
other things, conferring with the Nevada court; providing notice to the parties of its
telephonic hearing with the Nevada court; and holding a hearing on the mother’s plea
to the jurisdiction at which the parties argued the jurisdictional issues. Id. at *4.
Substantial compliance was similarly found by the California appellate court in
Cristian I., which J.W. cited. In Cristian I., Arizona had entered an earlier custody
order; the mother later took the child to California while the father remained in
Arizona. Cristian I., 224 Cal. App. 4th at 1092. California’s child-protection
department subsequently removed the child due to abuse by the stepfather,
proceedings that the father brought to the Arizona court’s attention. Id. at 1093–95.
Arizona then voluntarily ceded jurisdiction to California apparently without
communicating with the California court. Id. at 1095. The mother appealed the
California court’s ultimate placement of the child with his father in Arizona. Id. at
1096.
One of the mother’s appellate arguments was that the California court lacked
subject-matter jurisdiction because it had “failed to follow the required [UCCJEA]
procedures to maintain its jurisdiction after the initial [emergency] detention order,”
19
id. at 1099, including the procedures set forth in Section 3410 of the California Family
Code (California’s UCCJEA equivalent of Texas Family Code Section 152.110), id. at
1097–98. See Cal. Fam. Code § 3410 (2020). Agreeing that the proceedings were
“flawed,” the appellate court nonetheless held that they had “substantially complied
with the essential procedural requirements of the UCCJEA and [had] fully satisfied
the central goals of the act.” Cristian I., 224 Cal. App. 4th at 1099. After discussing the
procedural flaws, the court held them to have been harmless: “It is not reasonably
probable the delay and indirect method of communication had any impact on the
outcome of the case.” Id. at 1101.
So too here. Assuming that the trial court had remedied all that Father and
Mother had pointed to as procedural deficiencies, we do not see it as “reasonably
probable” that Michigan would have retained its exclusive, continuing jurisdiction. In
any event, although we reiterate that it is not jurisdictional, we conclude that the trial
court substantially complied with Section 152.110. See J.W., 2019 WL 3922795, at *4;
see also Saavedra, 96 S.W.3d at 538 n.7 (citing Section 152.110(f) in noting that the
record “include[d] a memorandum prepared by Judge Meurer, the Texas judge,
recording the details of her conversation with [California] Commissioner Appel”).
The interplay—or not—between Texas Family Code
Chapter 152 and Chapter 155
Finally, we clarify that the parties’ references to a “transfer” under Chapter
155 would properly apply only to intrastate proceedings. As noted, part of Mother’s
20
argument is that “a motion to transfer [to Michigan] was never submitted nor was
there ever an order to transfer.” 12 The Department had, it is true, pleaded that
“[c]ontinuing jurisdiction over the children has been established in another Court, and
a timely transfer will be sought.” But that language seems to be used only in a
situation where two Texas courts are involved. See, e.g., In re L.S., 557 S.W.3d 736,
738 (Tex. App.—Texarkana 2018, no pet.) (quoting Department’s petition using exact
sentence and holding final termination order void where Texas county exercising
Chapter 262 emergency jurisdiction proceeded to final order without transferring case
to other Texas county that had exclusive, continuing jurisdiction); In re Hamilton,
No. 12-13-00080-CV, 2013 WL 2456499, at *2 (Tex. App.—Tyler June 5, 2013, orig.
proceeding) (mem. op) (noting that “in cases involving motions for intrastate
transfers, the Texas Family Code specifies a scheme providing for due process. See
Tex. Fam. Code Ann. § 155.204”); In re C.C.B., No. 08-01-00353-CV,
2002 WL 31727247, at *2 (Tex. App.—El Paso Dec. 5, 2002, no pet.) (not designated
for publication) (noting that order of “transfer” to Colorado was “really a ceding of
jurisdiction under Tex. Fam. Code Ann. § 152.202” because a transfer under the
Family Code “is an intrastate action in which a Texas trial court with proper
jurisdiction sends the case to another Texas court”), disapproved on other grounds by In re
12
Mother’s fact statement on appeal is similar: “The record evidence does not
indicate the Petitioner, the Court[,] or any party to the lawsuit filed a Motion to
Transfer jurisdiction from Michigan. . . . The record evidence does not indicate that a
Transfer Order was entered in this case.”
21
Forlenza, 140 S.W.3d 373, 378 (Tex. 2004) (orig. proceeding); see also Texas Practice
Guide for Child Protective Services Attorneys § 5: Litigation Essentials 5–7 (2016),
https://www.dfps.state.tx.us/Child_Protection/Attorneys_Guide/documents/Sectio
n_5_Litigation_Essentials.pdf (last visited Mar. 24, 2020).
The Department-prepared Practice Guide makes clear that the interrelationship
between Chapters 155 and 262 applies solely to transfers from one court to another
within Texas:
If there is a prior child custody order from a Texas court when DFPS
files suit, the issue is which Texas court has jurisdiction. To find out
whether another court has continuing, exclusive jurisdiction (CCEJ),
after the adversary hearing DFPS must request that the vital statistics
unit (VSU) identify any Texas court that has continuing exclusive
jurisdiction . . . .
If the VSU search reveals that a court of continuing, exclusive
jurisdiction exists, the issue of which court adjudicates the case is
determined by Texas Family Code transfer provisions . . . . While the
general rule is that a motion for transfer by the petitioner should be filed
with the initial pleadings, a motion for transfer can be filed at any time
during the pendency of a DFPS case under Chapter 262.
Id. at 5 (emphasis added) (footnotes omitted) (citing Tex. Fam. Code Ann.
§§ 155.101(a), 155.201, 155.202, 262.202).
Indeed, the record in this case contains the Texas vital-statistics department’s
May 10, 2018 confirmations that no Texas court had entered a previous judgment
regarding John or Ann: “Pursuant to [S]ection 155, Texas Family Code, you are
advised that according to the Central Record File, the above individual has not been
22
the subject of a suit affecting the parent–child relationship in which a judgment was
entered on or after January 1, 1974.”
Both Father and Mother interpret the Department’s reference to another
court’s having continuing jurisdiction and to which “a timely transfer will be sought”
as meaning the Michigan court. Father argues that there is “no question that the State
recognized that the Michigan court had continuing jurisdiction over the children as of
May 2nd, 2018 [when the Department filed its amended petition] and was on notice
that a transfer of jurisdiction would be necessary.” We find it just as likely that the
petition’s “timely transfer” sentence appeared in error, particularly in light of the
petition’s supporting affidavits stating that the Department “does not have
information of any proceeding concerning the child pending in a court of this or any
other state.”
To the extent Father and Mother also suggest that after the full-adversary
hearing, 13 the Texas trial court should have identified the Michigan court as the court
of exclusive, continuing jurisdiction and transferred the case to Michigan, the
provisions of Chapter 262 do not support that idea. See Tex. Fam. Code Ann.
§§ 262.202–.203.
13
See Tex. Fam. Code Ann. § 262.201. The “full-adversary hearing” is
sometimes referred to as the “fourteen-day hearing” because it is supposed to occur
no later than the fourteenth day after the Department has taken custody of a child. Id.;
see In re Allen, 359 S.W.3d 284, 289 (Tex. App.—Texarkana 2012, orig. proceeding)
(op. on reh’g); In re E.D.L., 105 S.W.3d 679, 686 (Tex. App.—Fort Worth 2003, pet.
denied).
23
Section 262.202 provides, “If at the conclusion of the full adversary hearing the
court renders a temporary order, the governmental entity shall request identification
of a court of continuing, exclusive jurisdiction as provided by Chapter 155.” 14 Id.
§ 262.202. And Section 262.203(a) addresses transferring suits, something governed
by the “procedures provided by Chapter 155.” Id. § 262.203(a). Thus, both provisions
direct us to Chapter 155 and its intrastate applications, making them inapplicable to
Father’s and Mother’s UCCJEA jurisdictional argument.
In any event, the UCCJEA expressly controls over any other provisions within
Title 5 of the Family Code (“The Parent–Child Relationship and the Suit Affecting
the Parent–Child Relationship”), within which Chapters 152, 155, and 262 appear. See
id. § 152.002 (“If a provision of this chapter conflicts with a provision of this title or
another statute or rule of this state and the conflict cannot be reconciled, this chapter
prevails.”).
We overrule Father’s and Mother’s issue challenging the termination order as
being void for lack of subject-matter jurisdiction.
Conclusion
Having overruled Father’s and Mother’s contentions, we hold that the trial
court properly asserted modification jurisdiction and affirm the trial court’s judgment.
We know from the vital-statistics-department communications that the
14
Department had done just that, turning up nothing because only Texas records are
examined.
24
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: March 26, 2020
25