Opinion
No. 05-19-01291-CV
02-20-2020
IN RE JANECIA WATT, Relator
On Appeal from the 304th Judicial District Court Dallas County, Texas
Trial Court Cause No. JC-19-00707
MEMORANDUM OPINION
Before Justices Bridges, Osborne, and Carlyle
Opinion by Justice Carlyle
In this original proceeding, Janecia Watt seeks a writ of mandamus to compel the trial court judge to dismiss the Texas Department of Family and Protective Services's suit affecting the parent-child relationship ("SAPCR") in which the Department seeks temporary custody of relator's child, J.C., and to terminate relator's and J.C's father's parental rights. Relator contends the trial court lacks jurisdiction because J.C. is a Tennessee resident. The Department responds relator failed to ask the trial court for dismissal and did not show the trial court lacked jurisdiction. We deny relief.
Ordinarily, mandamus relief is available only if the trial court clearly abused its discretion and the party has no adequate remedy by appeal. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). When, however, a trial court issues an order beyond its jurisdiction, mandamus is proper and the relator need not show she does not have an adequate appellate remedy. Id.
In matters of child custody, jurisdiction is determined under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") adopted as chapter 152 of the family code. See TEX. FAM. CODE § 152.001 et seq.; In re Dean, 393 S.W.3d 741, 745-46 (Tex. 2012) (orig. proceeding). A writ of mandamus may issue when a trial court fails to comply with UCCJEA jurisdictional requirements. Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005). A trial court abuses its discretion if it fails to correctly analyze or apply the law. Id. Determining a child's home state under the UCCJEA is a question of law an appellate court reviews de novo. Id. The question before the court is whether the trial court abused its discretion in denying relator's plea to the jurisdiction. Id.
Failure to Challenge Jurisdiction
The Department contends the record shows relator only mentioned dismissal twice during the hearing and never actually asked the trial court to dismiss the Department's suit for lack of jurisdiction. The Department contends that the trial court's temporary order does not discuss jurisdiction and, therefore, the issue has not been specifically addressed by the trial court.
The record shows relator filed a written plea to the jurisdiction requesting dismissal of the case because Texas lacks subject matter jurisdiction. Alternatively, relator pleaded Texas should decline to exercise jurisdiction on the ground either Tennessee or Georgia would be a more appropriate forum. In the hearing, relator testified the case should be dismissed because J.C. does not live in Texas. The trial court expressly denied relator's motion to dismiss. There was no formal argument as the trial court moved quickly to hearing the evidence and issued its ruling, but it appears clear the trial court considered relator's motion and denied relief. The trial court did then enter a temporary order and asserted its jurisdiction.
Jurisdiction
The UCCJEA as adopted in Texas, sets out the circumstances under which a Texas court may exercise jurisdiction and make an initial determination of child custody. See TEX. FAM. CODE §§ 152.201, 152.204; In Interest of D.S., 555 S.W.3d 301, 311 (Tex. App.—Dallas 2018, pet. granted). Temporary emergency jurisdiction exists when a child is present in the State and the child has been abandoned or it is necessary to protect a child threatened with mistreatment or abuse. § 152.204(a). Non-emergency jurisdiction exists when: (1) Texas is the child's home state on the date the proceeding commenced or Texas was the child's home state within 6 months before the proceeding commenced and the child is not in Texas but a parent continues to live here; (2) no court has home state jurisdiction or the child's home state has declined to exercise jurisdiction on the ground Texas is a more appropriate forum and the child and at least one parent have a significant connection to Texas and substantial evidence is available here regarding the child's care, protection, training, and personal relationships; (3) all courts having home state jurisdiction have declined to take the matter because Texas is the more appropriate forum; or (4) no court would have jurisdiction under (1), (2), or (3). § 152.201(a).
The record shows the Department filed its SAPCR on July 15, 2019 asserting a litany of circumstances rendering emergency jurisdiction proper. On July 18, 2019, the trial court issued a writ of attachment for J.C. to be placed temporarily with the Department.
During an August 7, 2019 hearing to establish temporary orders, the Department and relator presented conflicting evidence regarding J.C.'s home state and welfare. The Department's evidence shows it initiated an investigation after relator's live-in boyfriend allegedly killed his own child, C.T., in relator's apartment. Relator's boyfriend has been charged with capital murder. Relator told a Department investigator that J.C. had lived with relator and the boyfriend in relator's Texas apartment, but his maternal grandmother, Janette Austin, had picked J.C. up and taken him to Austin's home in Memphis about four months before the investigation began in May 2019. Memphis police saw J.C. at Austin's home on May 14, 2019 and Tennessee Child Protective Services saw him in Memphis on June 17, 2019. Tennessee authorities reported J.C appeared to be doing well. However, after receiving a tip from neighbors, Department investigators went to relator's Dallas apartment on June 27, 2019 and found J.C. there with relator's seventeen-year-old cousin. The Department's investigator testified relator and Austin had been uncooperative with the Department's investigation and its effort to secure J.C.
After the writ of attachment was issued, the Department attempted to locate and take possession of J.C. The Department's investigator testified J.C. was believed to be with Austin in Tennessee. The Department had been unable to determine if J.C. was living with relator or just visiting, but his name was on relator's apartment lease. The trial court stated on the record that during a July 25, 2019 preliminary hearing, a magistrate judge had questioned relator regarding where J.C. was located and relator had given answers that were, according to the magistrate judge's notes, "not clear." The trial court stated its belief that the magistrate judge's notes indicate relator was being deceptive. There is no reporter's record from the July 25, 2019 hearing that would further illuminate relator's testimony.
During the August 7 hearing, relator testified J.C. was safe in Memphis, Tennessee with Austin and should not be brought to Texas. Relator testified she had only moved to Texas six months ago, in December 2018 or January 2019, and she had left J.C. with Austin when she moved. Relator admitted J.C. visited her in June 2019 for two weeks and then returned to Memphis by bus with a seventeen-year-old cousin. Relator admitted into evidence a bus ticket receipt showing she had purchased two tickets to Memphis for July 13, 2019. Relator testified J.C. had also visited his father in Georgia.
The bus ticket receipt is not attached to the reporter's record but is an exhibit in relator's appendix.
After hearing the evidence, the trial court denied relator's plea to the jurisdiction, named the Department as temporary managing conservator, and entered a temporary order for relator to produce J.C. on August 14, 2019 or she would face contempt. When relator failed to produce J.C. as ordered, she was held in direct civil contempt and ordered jailed for ninety days or until she produced the child. Relator does not contend she is currently confined.
In the appendix to her mandamus petition, relator has filed an affidavit from Austin asserting J.C. has always lived in Tennessee with Austin. Austin avers she has been cooperative with the Department and with Tennessee authorities. Austin admits J.C. visited relator in Texas between June 23, 2019 and July 13, 2019. Although the Austin affidavit is dated August 14, 2019, the record does not show it was submitted to the trial court in the hearing held on that date. Relator also attaches a copy of J.C.'s Tennessee Medicaid card, a May 31, 2019 order from Shelby County, Tennessee to the father for parental testing so that child support can be determined, a lease agreement showing J.C. is not on relator's apartment lease agreement, a bus ticket showing two passengers leaving Dallas for Memphis on July 13, 2019, and a hospital discharge paper showing J.C. received a physical in Tennessee on August 11, 2019. There is no indication in the record that any of these documents other than the bus ticket were admitted into evidence before the trial court.
Relator seeks mandamus relief to compel the trial court to dismiss the SAPCR because the trial court lacks emergency jurisdiction under the UCCJEA over J.C., a lifelong Tennessee resident. Relator further alleges in her petition that the Department falsely reported J.C. as a missing child, that a detective had contacted Memphis police to find J.C., and that J.C. was taken from Austin's custody on September 26, 2019 by the Tennessee Department of Children's Services and Memphis police to be turned over to Texas authorities.
Relator contends the trial court's exercise of jurisdiction fails to comply with the UCCJEA and the trial court did not communicate with Tennessee to consider whether Tennessee is a more convenient forum. Relator contends Tennessee is J.C.'s home state under the statute and thus Texas has jurisdiction only if Tennessee declines to exercise jurisdiction. Tennessee has exercised jurisdiction by issuing an order that J.C.'s father submit to parental testing. Relator contends it is irrefutable that J.C. has lived his entire life in Tennessee and the respondent judge "failed to consider overwhelming evidence of J.C.'s domiciliary in Tennessee." As proof of J.C.'s Tennessee residency, relator cites J.C.'s enrollment in Bluecare of Tennessee, the parentage order, and J.C. not being named as an occupant on relator's lease.
Relator contends the respondent's exercise of temporary emergency jurisdiction is improper because J.C. is a Tennessee resident and respondent erred in determining the emergency exception would apply. Relator contends J.C. was not present in Texas on the date the SAPCR was filed. Relator points out that Memphis police saw J.C. at Austin's home on May 14, 2019 and Tennessee Child Protective Services saw him in Memphis on June 17, 2019. Relator also contends, contrary to the evidence presented, that investigators also saw J.C. in Tennessee on June 27, 2019.
Lastly, relator contends the trial court abused its discretion by failing to consider Tennessee a more convenient forum under the statutory factors. See TEX. FAM. CODE § 152.207(b) (listing factors to establish forum in domestic violence cases as which State could best protect the child; length of child's residence outside state; distance between the Texas court and the court that would assume jurisdiction; relative financial circumstances of the parties; any agreement regarding jurisdiction; nature and location of the evidence; which state could consider the matter most expeditiously; and familiarity of the court with the facts and issues). Relator contends all of the factors favor Tennessee as the forum in that "J.C. has established residency there," a Tennessee court has exercised jurisdiction over J.C. and there are court orders in place in Tennessee, most evidence related to the termination will be in Tennessee where J.C. lives and where relator lived until January 2019.
The Department says relator's evidence regarding J.C.'s Tennessee residence was never presented to the trial court and is not properly in the record. Considering the evidence actually presented to the trial court, the Department does not assert a basis for emergency relief, but it contends jurisdiction is established under Texas Family Code § 152.201(a)(1) because the Department established J.C. was living at relator's apartment in June 2019 after neighbors saw him living there, relator had been deceptive regarding J.C.'s whereabouts, an investigator had seen J.C. listed as a tenant on relator's apartment lease, and relator told the Department's investigator that J.C. lived with her before Austin took him to Tennessee. Thus, Texas became J.C.'s home state when he and relator moved into her Texas apartment in December 2018 or January 2019, more than six months before the SAPCR was filed.
We agree with the Department that most of the evidence relator relies upon to allege Tennessee is J.C.'s home state was not presented to the trial court. Relator presented in the trial court only her own testimony and proof that she bought two bus tickets to Memphis in mid-July 2019. She now seeks to have this court evaluate Austin's affidavit and other new evidence and act as a factfinder. Appellate courts do not decide disputed areas of fact in mandamus proceedings. West v. Solito, 563 S.W.2d 240, 245 (Tex. 1978). See also In re J.W.L., 291 S.W.3d 79, 84 (Tex. App.—Fort Worth 2009, orig. proceeding) (disapproving use of extrinsic evidence to establish lack of jurisdiction in mandamus proceeding).
The evidence that was presented to the trial court conflicted on the issue of J.C.'s residence. In sifting through the conflicting evidence, the trial court could have reasonably determined, within its discretion, either J.C. is a Texas resident or he was a Texas resident within six months before commencement of the SAPCR and relator still lives in the State. See FAM. § 152.201(a)(1); In re Burk, 252 S.W.3d 736, 741 (Tex. App.—Houston [14th Dist.], orig. proceeding) (concluding mandamus relief unwarranted against Texas court exercising jurisdiction in child custody case where evidence showed child lived in Texas until two months before proceeding filed and parent continued to live in Texas). Alternatively, the trial court could have concluded, based on the evidence before it and without abusing its discretion, that no State has been shown to be J.C.'s home state, but both J.C. and relator have a significant connection to Texas and Texas is the location of substantial evidence regarding J.C.'s care, protection, training, and personal relationships. See FAM. § 152.201(a)(2). Similarly, and again, based on the limited evidence before it, the trial court could have concluded it may exercise jurisdiction because no court would qualify as having jurisdiction under the other subsections of section 152.201(a).
Because we do not conclude the evidence shows a clear abuse of discretion in finding jurisdiction on the record before the trial court, and because nothing in the record shows relator has even presented to the trial court most of the evidence she asserts proves J.C. resides in Tennessee, relator has not shown sufficient basis for mandamus at this time. See Powell, 165 S.W.3d at 324.
We deny mandamus relief.
/Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE 191291F.P05