Interest of L.T. and K.T., Children

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00577-CV
IN THE INTEREST OF L.T. and K.T., Children
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-02227
Honorable Charles E. Montemayor, Associate Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: January 17, 2018
AFFIRMED
Kenneth 1 appeals the trial court’s judgment terminating his parental rights to L.T. and K.T.
He argues (1) there is insufficient evidence to support the trial court’s finding he did not admit or
counterclaim for paternity after being served or waiving service of process; and (2) the trial court
erred by exercising jurisdiction because another court had continuing, exclusive jurisdiction over
the children. We affirm the trial court’s judgment.
BACKGROUND
The Department of Family and Protective Services removed L.T. (born in 2013) and K.T.
(born in 2016) from their mother, Jessica, after receiving numerous reports alleging she abused
1
To protect the identity of minor children in an appeal from an order terminating parental rights, parents are referred
to by their first names and children are referred to by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West
2014); TEX. R. APP. P. 9.8(b)(2).
04-17-00577-CV
drugs and had neglected the children. The Department’s affidavit in support of removal stated
Kenneth was the children’s father he had been recently released from jail in California, was a
chronic drug abuser, and was “reportedly not allowed to leave the state” of California.
The Department filed an original petition for conservatorship of the children and to
terminate Kenneth’s and Jessica’s parental rights. The trial court thereafter ordered Kenneth to
complete a family service plan prepared by the Department. Kenneth wrote a letter to the trial court
stating he resides in California, Jessica illegally took the children from California, and “[t]here
was an open child custody case . . . in California regarding [L.T.] and [K.T.].”
The case proceeded to a bench trial, at which Department caseworker Yesenia Sanchez
testified. According to Sanchez, Jessica was using methamphetamines and did not seek medical
treatment for K.T.’s renal failure. Sanchez stated Kenneth told her “he wanted his kids back and
he wanted [her] to make that happen.” Sanchez also stated Kenneth had been incarcerated three
times during the case for assault, had no contact with the children during the case, and failed to
complete services on his family service plan. Jessica told Sanchez “there was domestic violence,
which is why [Jessica] left California and was in Texas.” Sanchez stated the children were placed
with Jessica’s brother, who was meeting the children’s basic needs.
The trial court signed a judgment terminating Jessica’s and Kenneth’s parental rights. In
addition to finding termination is in the children’s best interest, the trial court found three grounds
for terminating Kenneth’s parental rights: (1) constructive abandonment; (2) failure to complete
court-ordered provisions of his family service plan; and (3) failure to admit or counterclaim for
paternity after being served or waiving service. Only Kenneth appealed.
SUFFICIENCY OF THE EVIDENCE
Kenneth argues there is insufficient evidence to support the trial court’s finding that he did
not admit or counterclaim for paternity after being served or waiving service under Texas Family
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Code section 161.002(b)(1). See TEX. FAM. CODE. ANN. § 161.002(b)(1) (West Supp. 2017). The
Department responds the trial court’s judgment may be affirmed based on its findings of grounds
for termination under section 161.001(b)(1), including constructive abandonment and failure to
complete his family service plan. See id. § 161.001(b)(1)(N), (O).
When, as here, an appellant does not challenge all findings that would independently
support the trial court’s judgment, we must affirm the judgment. In re J.J.J., No. 04-17-00254-
CV, 2017 WL 3044584, at *3 (Tex. App.—San Antonio July 19, 2017, pet. denied). Even if
insufficient evidence supports the trial court’s finding that Kenneth did not admit or counterclaim
for paternity after waiving service, we cannot say the trial court erred because the unchallenged
findings independently support the judgment. See id.; see also TEX. FAM. CODE. ANN. § 161.001(b)
(providing parental rights may be terminated if a trial court makes a best-interest finding and a
finding of at least one of the grounds listed in that section). 2
CONTINUING, EXCLUSIVE JURISDICTION
Kenneth argues the trial court erred by exercising jurisdiction in this case because another
court had continuing, exclusive jurisdiction. He notes the trial court found “a request for
identification of a court of continuing, exclusive jurisdiction has been made as required by Section
155.101, Texas Family Code” and “this Court has jurisdiction of this case and of all the parties
and that no other court has continuing, exclusive jurisdiction of this case.” Kenneth complains
there is “no evidence that said request had been made, and such findings are allowed only if the
issue is not disputed by the pleadings.”
Subject to exceptions not applicable in this case, the petitioner or trial court must “request
from the vital statistics unit identification of the court that last had continuing, exclusive
2
Moreover, we note the record supports the trial court’s other findings.
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jurisdiction of the child in a suit.” TEX. FAM. CODE. ANN. § 155.101 (West Supp. 2017). “If a
request for information from the vital statistics unit relating to the identity of the court having
continuing, exclusive jurisdiction of the child has been made . . . a final order, except an order of
dismissal, may not be rendered until the information is filed with the court.” Id. § 155.104(a). “If
a final order is rendered in the absence of the filing of the information from the vital statistics unit,
the order is voidable on a showing that a court other than the court that rendered the order had
continuing, exclusive jurisdiction.” Id. § 155.104(b). In this context, “a court acquires continuing,
exclusive jurisdiction . . . in connection with a child on the rendition of a final order.” Id.
§ 155.001(a).
Kenneth complains there is nothing in the record showing the trial court requested
identification of the court that last had continuing, exclusive jurisdiction of the children in this suit.
To be preserved for appellate review, such a complaint must first be made in the trial court. In re
M.L.G.J., No. 14-14-00800-CV, 2015 WL 1402652, at *3 (Tex. App.—Houston [14th Dist.] Mar.
24, 2015, no pet.) (mem. op.); see Jones v. Tex. Dep’t of Family & Protective Servs., 400 S.W.3d
173, 178-79 (Tex. App.—Austin 2013, no pet.) (stating, under the applicable statute, an order
rendered without the required request is merely “voidable” and not void). Kenneth did not
complain in the trial court about the absence of a proper request for identification of the court that
last had continuing, exclusive jurisdiction of the children. He has therefore not preserved the issue
for appellate review. See In re M.L.G.J., 2015 WL 1402652, at *3. And, although Kenneth’s letter
to the trial court indicates there was an “open” custody case in California, the record does not show
that another court had rendered a final order or otherwise acquired continuing, exclusive
jurisdiction. See id.; see also TEX. FAM. CODE. ANN. § 155.001(a).
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04-17-00577-CV
CONCLUSION
We affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
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