                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00230-CV


IN THE INTEREST OF F.M.-T. AND
E.M.



                                     ------------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      This is an ultra-accelerated appeal2 in which Appellant Mother appeals the

termination of her parental rights to her children, F.M.-T. and E.M. The sole

issue that Mother raises is whether the trial court had subject-matter jurisdiction


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal was filed).
to terminate her parental rights approximately one year after F.M.-T. and E.M.

were removed under the temporary emergency jurisdiction statute.           We will

affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND3

      Mother is the parent of four children; her two oldest children live with her

mother because Mother had “made a lot of bad decisions.” The two younger

children, who are involved in this appeal, are a son F.M.-T., who was born in

August 2007, and a daughter E.M., who was born in November 2009.

      Mother moved from Mulberry, Florida, to Waco, Texas, in the middle of

September 2011. A month later, in the middle of October 2011, Mother moved

from Waco to Fort Worth because her ex-husband4 had threatened to kill her

children in Waco. When Mother moved to Fort Worth, she had no home, knew

no one, and allowed her children to live with strangers in a hotel room.

      The Department of Family and Protective Services initially received a

referral in October 2011, alleging neglectful supervision of the children by Mother

and her boyfriend. The referral stated that F.M.-T. had a bruise on his face and

was limping and that medical care had not been sought. The Department was

unable to locate the family at that time.


      3
        Because Mother does not challenge the sufficiency of the evidence, we
set forth only a brief rendition of the facts.
      4
       Mother later testified that she was still married and had only separated
from her husband.

                                            2
      On or about December 20, 2011, Mother signed a power of attorney

allowing her “ex-sister-in-law” Annette to care for F.M.-T. and E.M. because

Mother was homeless and because her children had seen her raped by eight

men while Mother was prostituting herself. The Department finally located the

children on or about December 22, 2011, while they were in Annette’s care.

      On December 26, 2011, Annette requested that the Department take the

children because she was not willing to continue caring for them; the Department

removed the children and placed them in foster care. On December 27, 2011,

the Department filed a “Petition For Protection Of Children, For Conservatorship,

And For Termination In Suit Affecting The Parent-Child Relationship.”         The

Department’s petition states that no other court has continuing, exclusive

jurisdiction over the child.   The trial court held a hearing, found that it had

jurisdiction pursuant to chapter 152 of the family code, and issued a temporary

order appointing the Department as managing conservator of the children.

      On December 17, 2012, fifteen months after the children had moved to

Texas, the termination trial was held. The trial court took judicial notice of two

letters from the Texas Department of State Health Services indicating that the

children had not been the subject of any suit affecting the parent-child

relationship in which a judgment was entered after January 1, 1974.           The

testimony at trial revealed that while the case had been pending, Mother had

gone to jail for criminal trespass and possession of marijuana. Mother tested

positive for methamphetamine and amphetamines on December 26, 2011; on

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June 26, 2012; and on November 6, 2012, when she showed up for a visit with

her children. Mother visited with her children only three times during the case

and did not visit them during the five-month span from June 2012 until November

2012. Mother received a service plan on January 31, 2012, but she did not work

her services.

      After hearing the evidence at trial, the trial court found by clear and

convincing evidence that Mother had knowingly placed or knowingly allowed the

children to remain in conditions or surroundings that endangered their physical or

emotional well-being and that termination of the parent-child relationship between

Mother and F.M.-T. and between Mother and E.M. was in the children’s best

interest. This appeal followed.

 III. TRIAL COURT HAD JURISDICTION TO TERMINATE MOTHER’S PARENTAL RIGHTS

      In her sole issue, Mother argues that the trial court did not have subject-

matter jurisdiction to terminate her parental rights. Mother contends that the trial

court lacked jurisdiction to terminate her parental rights because Texas was not

the home state of the children when the termination suit commenced—that is,

when the Department filed the termination petition; the emergency circumstances

justifying the trial court’s exercise of temporary emergency jurisdiction ended

when the Department took emergency temporary custody of the children by

virtue of the December 27, 2011 order so that the temporary emergency

jurisdiction expired; and the temporary emergency order should have become



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final, and it only appointed the Department as the children’s managing

conservator but did not terminate Mother’s parental rights.

      Whether a trial court has subject-matter jurisdiction over a particular

dispute is a question of law that is reviewed de novo. Tex. Dep’t of Parks &

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The obligation to establish

the existence of such jurisdiction lies with the party invoking the trial court’s

authority, normally the plaintiff. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 446 (Tex. 1993).

      Texas Family Code section 152.204 authorizes a trial court’s temporary

emergency     jurisdiction   over   a   child   custody   determination   in   certain

circumstances. Tex. Fam. Code Ann. § 152.204 (West 2008). A Texas court

has temporary emergency jurisdiction to make a child custody determination if

the child is present in Texas and the child has been abandoned or it is necessary

in an emergency to protect the child because the child is subjected to or

threatened with mistreatment or abuse. Id. § 152.204(a). Section 152.204(b)

states that

      [i]f a child custody proceeding has not been or is not commenced in
      a court of a state having jurisdiction under Sections 152.201 through
      152.203, a child custody determination made under this section
      becomes a final determination, if it so provides and this state
      becomes the home state of the child.

Id. § 152.204(b) (emphasis added). “Home state” is defined as the state in which

a child lived with a parent or a person acting as a parent for at least six



                                           5
consecutive months immediately before the commencement of a child custody

proceeding. Id. § 152.102(7) (West 2008).

      Texas Family Code section 152.201 sets forth the instances in which a

Texas court possesses jurisdiction to make an initial child custody determination.

Tex. Fam. Code Ann. § 152.201 (West 2008) (providing that “a court of this state

has jurisdiction to make an initial child custody determination only if:” and listing

four instances) (emphasis added). One of the instances in which a Texas trial

court is vested with initial child custody jurisdiction is when “this state is the home

state of the child on the date of the commencement of the proceeding.”              Id.

§ 152.201(a)(1).

      Texas Family Code section 155.101 provides a method for identifying the

court with continuing, exclusive jurisdiction over a child. Tex. Fam. Code Ann.

§ 155.101 (West 2008). Section 155.103(a) provides that “[a] court shall have

jurisdiction over a suit if it has been, correctly or incorrectly, informed by the

bureau of vital statistics that the child has not been the subject of a suit and the

petition states that no other court has continuing, exclusive jurisdiction over the

child.” Id. § 155.103(a).

      Turning to the application of these statutory provisions to the present facts,

it is undisputed that—because the Department simultaneously filed its request for

temporary emergency custody of the children and its termination petition about

three months after Mother and the children arrived in Texas—Texas was not the

children’s home state when the termination proceeding “commenced,” i.e., when

                                          6
the termination petition was filed. That is, when the termination petition was filed,

the children had not lived in Texas for six consecutive months.             Thus, the

instances    triggering   section    152.201’s     initial-child-custody-determination

jurisdiction did not exist under the present facts. We agree with Mother that the

trial court did not exercise termination jurisdiction under this section.

      But Mother concedes that the trial court properly exercised temporary

emergency jurisdiction pursuant to section 152.204(a).         See id. § 152.204(a).

While the trial court possessed temporary emergency jurisdiction, it ruled on only

the portions of the Department’s petition—the requests for protection and for

conservatorship—that required emergency action. The trial court did not rule on

the termination portion of the Department’s petition while it possessed only

temporary emergency jurisdiction; that portion of the petition remained pending.

      By mid-March 2012, Texas had become the children’s home state because

they had lived in Texas for six months, see id. § 152.102(7), and by July 2012,

the Texas Department of State Health Services had informed the trial court that

the children had not been the subject of a suit affecting the parent-child

relationship in which a judgment was entered after January 1, 1974. See id.

§ 155.103(a). And the Department’s termination petition stated that no other

court had continuing exclusive jurisdiction over the child.          So, contrary to

Mother’s contention, the trial court did not exercise temporary emergency

jurisdiction over the termination proceeding; instead, by the time the termination

portion of the Department’s petition proceeded to trial, Texas had become the

                                           7
children’s home state, and the trial court possessed jurisdiction to rule on the

termination portion of the Department’s petition pursuant to section 155.103(a).

See id.; In re J.C.B., 209 S.W.3d 821, 824 (Tex. App.—Amarillo 2006, no pet.)

(holding under similar facts that a trial court that had initially exercised temporary

emergency jurisdiction under section 152.204(a), subsequently possessed

subject-matter jurisdiction to terminate parental rights).

      Finally, concerning Mother’s last argument, the temporary emergency

order did not state that it would become a final order and was ultimately

superseded by the termination order. See Tex. Fam. Code Ann. § 152.204(b)

(indicating that temporary order may become final if it so provides).

      Having addressed all of Mother’s jurisdictional arguments, we overrule her

sole issue.

                                  IV. CONCLUSION

      Having overruled Mother’s sole issue, we affirm the trial court’s judgment

terminating Mother’s parental rights to F.M.-T. and E.M.



                                                     SUE WALKER
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DELIVERED: October 3, 2013




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