                                               NO. 07-06-0088-CV

                                        IN THE COURT OF APPEALS

                                FOR THE SEVENTH DISTRICT OF TEXAS

                                                  AT AMARILLO

                                                     PANEL D

                                          NOVEMBER 29, 2006
                                    ______________________________

                                      IN THE INTEREST OF J.C.B.
                                  _________________________________

                     FROM THE 31st DISTRICT COURT OF LIPSCOMB COUNTY;

                     NO. 04-10-3857; HON. PHIL N. VANDERPOOL, PRESIDING
                               _______________________________

                                              OPINION
                                  ________________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

           Richard Phillip Beats appeals from an order terminating his parental relationship

with his child, J.C.B. The sole issue before us concerns the trial court’s subject matter

jurisdiction to order termination. He argues that it had no such authority given that the

home state of J.C.B. lay outside of Texas. Nor did statute investing Texas courts with

authority to assume “temporary emergency jurisdiction” over children threatened with

mistreatment or abuse fill the void. We disagree and overrule the contention.1

           Applicable Law

           Whether a trial court has subject matter jurisdiction over a particular dispute is a

question of law. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.


           1
               The rights of the child’s mother Kimberly Kay Beats were also terminated, but she has not filed an
app eal.
2004). So, we can review its decision on the issue de novo. Dean Food Co. v. Anderson,

178 S.W.3d 449, 452 (Tex. App.–Amarillo 2005, pet. denied). We further note that the

burden lies with the party initiating suit to establish the existence of such jurisdiction. City

of Lubbock v. Rule, 68 S.W.3d 853, 856 (Tex. App.–Amarillo 2002, no pet.). This burden

is satisfied through allegations contained in the plaintiff’s petition or the presentation of

evidence illustrating the existence of the jurisdictional prerequisites. See In re Oates, 104

S.W.3d 571, 575-76 (Tex. App.–El Paso 2003, no pet.) (discussing the petitioner’s burden

to allege facts illustrating the existence of jurisdiction and the trial court’s obligation to

consider evidence when necessary to resolve the dispute).

       Next, statute provides that a Texas court may make an initial custody determination

regarding a child if 1) the child’s “home state” is Texas, 2) the child’s “home state” was

Texas within six months prior to the commencement of the proceeding if the child is absent

from Texas but a parent continued to live here, 3) the child has no “home state” or the

courts of the child’s “home state” declined to exercise jurisdiction over the child because

Texas was the more appropriate forum, 4) all courts potentially having jurisdiction over the

child declined to exercise it because Texas is the more appropriate forum, and 5) no court

of any other state would have jurisdiction over the child.            TEX . FAM . CODE ANN .

§152.201(a)(1)-(4) (Vernon 2002). As can be seen, and save for one exception, much is

dependent upon the child’s home state, that being the state in which the child lived with a

parent or person acting as a parent for at least six months immediately before

commencement of the child custody proceeding. Id. §152.102(7); In re Barnes, 127

S.W.3d 843, 847 (Tex. App.–San Antonio 2003, no pet.). In short, if the child has a home



                                               2
state, if it is one other than Texas, and if the courts of that state have not declined to

exercise their jurisdiction, then the courts of Texas lack jurisdiction over the child.

         Next, the exception alluded to above does permit courts of this state to act in

emergency situations. To fall within that ambit, the situation must be one wherein the child

was abandoned or where court intervention is “necessary in an emergency” to protect a

child subjected to or threatened with mistreatment or abuse. TEX . FAM . CODE ANN .

§152.204(a) (Vernon 2002).2                  Only when no “child custody proceeding” has been

commenced in a court of another state having jurisdiction over the child and Texas has

become the child’s home state may a “child custody determination” of a court exercising

emergency jurisdiction under §152.204(a) become final. Id. §152.204(b).3

         Application of Law

         The proceeding from which this appeal arose was commenced on October 4, 2004.

On that date, the Texas Department of Family and Protective Services (DPS) filed a

document entitled “Original Petition for Protection of a Child, For Conservatorship, and for

Termination in Suit Affecting the Parent-Child Relationship.” The fourth of October was

         2
           Stating that: “[a] court of this sta te has tem porary em ergency jurisdictio n if the child is pre sent in this
state and the child has been abandoned or it is necessary in an emergency to protect the child because the
child, or a sibling or parent of the child, is subjected to or threatened with mistreatm ent or abuse.” T EX . F AM .
C ODE A N N . §152.204(a) (Vern on 2002 ).

         3
             The statute reads:

         If there is no previous child custo dy dete rm ination that is entitled to be enforced under this
         chapter and a child custody proceeding has not been comm enced in a court of a state having
         jurisdiction under Sections 152.201 through 152.203, a child custody determination mad e
         under this section remains in effect until an order is obtained from a court of a state having
         jurisdiction under Sections 152.201 through 152.203. If a child custody proceeding has not
         been or is no t com m enc ed in a cou rt of a s tate having jurisdiction under Sections 152.201
         through 152.203, a c hild custody determination made under this section becomes a final
         dete rm ination, if it so provides and this sta te becom es the ho m e state of the ch ild.

T EX . F AM . C ODE A N N . §152.204(b) (Vern on 2002 ).

                                                            3
also the date on which J.C.B.’s parents were arrested for possessing drugs while driving

through Texas from Oklahoma. It is undisputed that neither J.C.B. nor his parents were

residents of Texas at the time. Nor does anyone dispute that the child’s home state was

Oklahoma and that no Oklahoma court declined, in favor of Texas, to exercise its

jurisdiction over J.C.B. Thus, it is clear that the trial court’s jurisdiction to make a child

custody determination could not be founded upon §152.201 of the Family Code. Yet, that

is not true of §152.204.

        With the arrest of his parents, J.C.B., who was approximately 16 months old, could

not care for himself. Nor was there any friend or relative present and to whom the toddler

could be released.           So, while the arrest of his parents may not be deemed their

abandonment of him in a technical sense, the child, no doubt, was faced with impending

mistreatment or abuse if left alone. Thus, the trial court had temporary jurisdiction under

§152.204(a) to intervene to secure his welfare. And, it did so by entering temporary orders

on November 1, 2004, appointing the DPS his managing conservator.

        Since November 1st, and despite the release of J.C.B.’s mother from jail and her

assumption of residence in Texas, the toddler remained in the managing conservatorship

of the DPS until trial in February of 2006. Having had managing conservatorship over

J.C.B. for those 14 months, it could be said that J.C.B.’s home state has since become

Texas.4 Additionally, not only did counsel for Richard inform the trial court that he knew of


        4
          Ad m itted ly, the definition of “home state” contains a residency requirement for a particular pe riod
before suit is co m m enc ed. See T EX . F AM . C O D E A N N .§152.102(7) (Vernon 2002) (defining the child’s home
state as the state in which the child lived with a parent or one acting as a parent for at least six months
“im m edia tely before the comm encement of a child custody proceeding”). However, §152.204 permits a
custody determination rendered via the em ergency jurisdiction of a trial court to becom e final if, among other
things, the child’s ho m e state becom es T exa s on ce the ord er is entere d. Considering the two together and
affording each the autho rity im plicit in their words, we cannot but conclude that the concept of “home state”

                                                        4
no other proceeding involving J.C.B. having been commenced elsewhere but also counsel

for the DPS expressly represented that no such actions pended elsewhere. Given that

these unsworn evidentiary comments by both counsel went uncontested, the trial court was

entitled to rely on them as evidence establishing the subject of the utterances. See Banda

v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (recognizing that unsworn utterances of an

attorney can be considered evidence if no one objects to them). So too do we note that

actions to terminate parental rights fall within the scope of child custody determinations.

See White v. Blake, 859 S.W.2d 551, 561-63 (Tex. App.–Tyler 1993, no writ) (so holding).

And, in ordering the parental relationship to be terminated, the trial court implicitly directed

that the subject of its order be final. Indeed, one cannot reasonably think of such an order

as simply being temporary or a stop gap measure.

        Taken together, the foregoing indicia serve to prove that the trial court had authority

to act under §152.204(a). Having subject matter jurisdiction to act under that provision, we

cannot but overrule Richard’s contention. Thus, the trial court’s order of termination is

affirmed.

                                                            Brian Quinn
                                                            Chief Justice




differs when jurisdiction is invoked under §152.204(a) and omits the requirement that the six months of
residence occur be fore the pro ceeding is comm enced. If this were not so, then there could be no hom e state
for purposes of finalizing orders rendered via emergency jurisdiction since the proceeding began before the
child had resided with a parent or parent s urrogate in Texas for six m onth s. See First American Title Ins. Co.
v. Stray horn , 169 S.W .3d 298, 304 (Tex. App.–Austin 2005, pet. denied) (requiring us to interpret facially
con tradictory statu tes in a way tha t upholds both).

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