            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-01-00638-CV
                                         NO. 03-01-00639-CV



                                   Manuel E. Saavedra, Appellant

                                                     v.

                                    Debra Kay Schmidt, Appellee

                                                     &

               Texas Department of Protective and Regulatory Services, Appellee




       FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
      NOS. FM004275 & FM001272, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING




                This jurisdictional dispute between two sister state courts over a custody determination falls

squarely within the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA).1 See Tex.

Fam. Code Ann. '' 152.001-.317 (West 2002). Custody proceedings were initiated in the superior court


        1
            The UCCJEA is the successor statute to the Uniform Child Custody Jurisdiction Act (the
UCCJA). The National Conference of Commissioners on Uniform State Laws adopted the UCCJEA in
1997 to (1) address inconsistent interpretations of the UCCJA, (2) provide clearer standards for exercising
jurisdiction, and (3) provide a remedial process to enforce interstate child custody determinations. Uniform
Child-Custody Jurisdiction & Enforcement Act (UCCJEA), 9 U.L.A. 649-50 (1999) (Prefatory Note).
The Texas Legislature amended the family code and replaced the UCCJA with the UCCJEA in 1999.
Uniform Child Custody Jurisdiction & Enforcement Act, 76th Leg., R.S., ch. 34, ' 1, 1999 Tex. Gen.
Laws 52. Throughout this opinion, we refer to Texas=s version of the UCCJEA, which is substantially
identical to the uniform Act, unless we indicate otherwise.
of California, San Joaquin County (the California court) in 1993 when appellee Debra Kay Schmidt filed for

separation and then for divorce from appellant Manuel E. Saavedra. Initially, Schmidt was awarded

physical custody of the children, while Saavedra was granted only supervised visitation. Years later,

Schmidt fled to Texas with the children in violation of the California court=s orders. Incensed by Schmidt=s

conduct, the California court awarded sole legal custody of the children to Saavedra, a convicted child

molester who had never enjoyed unsupervised visitation with the children; it further ordered no contact

between Schmidt and the children. Following a series of legal proceedings and allegations of unseemly

conduct by the parents, the Texas Department of Protective and Regulatory Services involved itself in the

dispute. A Texas court assumed temporary emergency jurisdiction and entered temporary orders regarding

the placement of the children. See id. ' 152.204. Following the directives of the UCCJEA, the Texas

court attempted to communicate on several occasions with the California court, which enjoyed exclusive

continuing jurisdiction under the Act. See id. '' 152.204(d), .202. An extraordinary twist in this case not

contemplated by the UCCJEA has been the California court=s continued refusal to communicate with the

Texas court regarding its concerns for the protection of these children. Despite its best efforts, the Texas

court was unable to secure an acknowledgment from the California court that upon their return to California,

the children=s best interests would be addressed and they would not be placed in the home of Saavedra

before that court required a complete home study and formulated a transition plan. Without such assurance,

the Texas court refused to enforce the California order and entered additional orders regarding the custody

of the children; those orders are the subject of this appeal.




                                                     2
                 Saavedra asserts that the Texas court erred in refusing to enforce the orders issued by the

California court and lacked jurisdiction to modify those orders or enter new orders because exclusive

continuing jurisdiction remained in California. The attorney ad litem for the children suggests that the Texas

court could assume jurisdiction under the Hague Convention and could properly modify the California

order. We reject the ad litem=s arguments and conclude that the trial court lacked jurisdiction to modify the

California orders; however, we construe the orders as temporary orders rendered pursuant to the Texas

court=s continued exercise of temporary emergency jurisdiction. Because this Court is generally without

jurisdiction to consider appeals of temporary orders, see id. ' 105.001(e) (West 2002), we dismiss this

appeal for want of jurisdiction.


                                             BACKGROUND

                 Saavedra, a Chilean citizen, married Schmidt in California in June 1991. The parties

separated in August 1993. Under the temporary orders in effect for almost four years, Schmidt and

Saavedra maintained joint legal custody of their two young daughters, but Schmidt was awarded primary

physical custody. Saavedra was granted only supervised visitation, presumably because of a recent

conviction for child molestation involving a family member.2 Both parties were prohibited from removing the


        2
          Although the record filed with this Court does not include the details of this criminal conviction, it
appears that Saavedra was convicted of sexually molesting Schmidt=s twelve-year-old niece in California in
1992. He was placed on probation for the offense but continued to register as a sex offender.




                                                       3
girls from California without prior approval from the other parent or the California court. In August 1997,

Schmidt filed a petition in the California court seeking dissolution of the marriage.

                 Shortly after filing for divorce, Schmidt moved to Texas with the children without providing

notice to Saavedra or the California court. Once Schmidt=s whereabouts were discovered, she was served

with an order to appear in the California court for further custody proceedings. In April 1999, the dispute

was referred to mediation. In the meantime, Saavedra and Schmidt agreed to maintain joint legal custody of

the children, but Saavedra continued to be limited to supervised visitation until the date of mediation. On

May 6, Schmidt filed in California a petition seeking modification of the custody and visitation arrangements;

she also asked the California court to decline jurisdiction and transfer the matter to Texas. The California

court refused to relinquish jurisdiction and set the modification hearing for July 29. After several

continuances, the hearing commenced on October 15, 1999. Although the court had ordered her to

produce the children, neither Schmidt nor the girls were present at the hearing. Schmidt=s counsel appeared

on her behalf. Following the hearing, the California court changed the temporary orders to award sole

physical and legal custody of the children to Saavedra, and ordered that Schmidt have no contact with the

children (the October 1999 order).3 The California court=s decision was based in part on Schmidt=s failure


        3
            The order was later modified after Schmidt apprised the court of a California family code statute
that provides: ANo person shall be granted physical or legal custody of, or unsupervised visitation with, a
child if the person is required to be registered as a sex offender . . . where the victim was a minor, . . . unless
the court finds that there is no significant risk to the child and states its reasons in writing or on the record.@
Cal. Fam. Code ' 3030(a) (West Supp. 2002). The California court accordingly included the special
findings mandated by the statute, concluding that Saavedra poses no significant risk to the children based on
the evidence in the record, including Saavedra=s sex offender program counselor=s opinion that Saavedra is
Aat minimal risk of reoffending as long as he maintains sobriety.@

                                                        4
to comply with its orders that she not remove the children from its jurisdiction.4 Schmidt was again ordered

to return the children to California, which she refused to do.


        4
            In its order, the California court stated that its decision was mandated by the following findings:

            1.   [Schmidt] has failed to comply with prior court orders relating to the children.

            2.   [Schmidt] has refused to allow supervised visits with the respondent, father.

            3.   [Schmidt] has fled the jurisdiction to the [sic] defeat the respondent, father=s
                 visitation rights.

            4.   [Schmidt] has falsely claimed that respondent, father, raped her.

            5.   [Schmidt] has attempted to have respondent, father, deported.




                                                      5
6.   [Schmidt] has engaged in child alienation by telling the children the respondent,
     father, is a bad person and by keeping the children away from him.

7.   The respondent, father is willing to share the children with the petitioner, mother
     and the mother is not willing to allow father to visit the children.

8.   [Schmidt] has agreed to share parenting orders with no intent to carry out that
     agreement or comply with those orders.


                                          6
                 In February 2000, the Texas Department of Protective and Regulatory Services (the

Department) filed an original petition affecting the parent-child relationship in Travis County. The Texas

court awarded temporary managing conservatorship to the Department after finding an immediate need for

the issuance of temporary orders and the removal of the girls from the home of Schmidt.5 In June, Saavedra

responded to the Department=s suit by filing a special appearance, plea to the jurisdiction, request for court

to decline jurisdiction, and an original answer. Saavedra also filed a request to register the California court=s

October 1999 order and a petition to enforce it by delivering the children to him. See id. ' 152.305.




        5
           It appears that California was attempting to extradite Schmidt to face criminal charges for child
concealment, and while the California court had informed the Texas court that it would be inappropriate to
return the children to Saavedra, no other arrangements were in place.




                                                       7
                 On July 5, 2000, the trial court held a chapter 262 hearing, see id. ' 262.201 (West 2002),

and considered Saavedra=s enforcement action. During the hearing, the trial court judge informed the

parties that she had attempted to communicate with the California court pursuant to section 152.112 of the

UCCJEA. See id. ' 152.112 (West 2002). The judge remarked that during her initial conversation with

Commissioner Robin Appel,6 the judge presiding over the dispute in California, the commissioner agreed to

review the file, consider the big picture and the needs of the children, and call the Texas judge the following

day.7 Nine months later, the Texas judge had not heard from the California judge, and subsequent requests

for court documents had gone unanswered. The Texas judge remarked that the California court had failed

to consider the best interests of the children or to conduct a thorough home study before awarding sole

custody of the children to Saavedra, despite his conviction for sexual molestation of a young girl. The trial

court thus announced that it was assuming temporary emergency jurisdiction of the children who were living

in Texas; the court then appointed the Department and Schmidt joint temporary managing conservators, and

granted Saavedra supervised visitation.

                 Following the July 5 hearing in Texas, an ex parte hearing was held in the California court on

Saavedra=s application to modify the October 1999 custody order. The court modified its earlier order by




        6
           Commissioner Appel=s role in California is equivalent to the role of a family court master or
associate judge in Texas.
        7
          The record filed with this Court includes a memorandum prepared by Judge Meurer, the Texas
judge, recording the details of her conversation with Commissioner Appel. See Tex. Fam. Code Ann. '
152.110(f).


                                                      8
directing that the children be placed with the Alameda County Child Protective Services8 (CPS) upon their

return to California. The modified order stated that the California court continues to maintain exclusive

jurisdiction under the UCCJEA. At no point did the California court mention the best interests of the

children, see Cal. Fam. Code ' 3020 (West Supp. 2002), or require an investigation to assure their safety

in Saavedra=s care. Nor did the California court advise the Texas court of this modification.

                 In August 2000, Saavedra filed with the Texas court a motion for further orders, a plea to

the jurisdiction, and a request for the Texas court to decline jurisdiction regarding the custody rights of these

parents. Saavedra attached a copy of the California court=s modified custody order, directing that the

children be placed with the Alameda County CPS upon their return to California. A hearing was held on

August 14, during which the Texas court expressed its dissatisfaction with the Alameda County CPS=s

Awoefully inadequate@ home studies, the failure of the California court=s orders to address the best interests

of the children, and the California court=s continuing refusal to communicate with the Texas court. On that

same day, the Texas court signed the temporary order memorializing its earlier ruling following the July 5

hearing. This temporary order, dated August 14, 2000, was to remain in effect for one year or until the

California court entered a final decree of divorce. In December 2000, although it still had made no attempt

to communicate with the Texas court, the California court rendered a final judgment of dissolution of

marriage, in which it merely affirmed the Acurrent custody order.@




        8
            It appears that Saavedra had moved from San Joaquin County to Alameda County by this time.



                                                       9
                In May 2001, Saavedra filed an amended petition for enforcement of child custody

determination, requesting that the Texas court grant immediate physical custody of the girls to the Alameda

County CPS. The following month, the attorney ad litem appointed by the Texas court to represent the

children filed a motion asking the Texas court to assume jurisdiction of this custody dispute and to modify

both the California court=s order and the Texas court=s temporary order. The Texas court held a hearing on

June 25, 2001 on Saavedra=s petition for enforcement and the ad litem=s motion to assume jurisdiction and

modify the existing custody orders.

                At the hearing, the trial court heard from several witnesses, including Anna Warde, a case

worker with the Department. Warde opined that the home study conducted by the Alameda County CPS

was Aprobably to date the worse [sic] home study I=ve ever seen.@ According to Warde, the home study

was based entirely on information supplied to the investigating agency by Saavedra himself. Not only did it

appear that the Alameda County CPS had performed an inadequate home study, but the California court

still refused to communicate or cooperate with the Texas trial court, causing the Texas judge to exclaim in

frustration: AIn my years on the Bench, I have not experienced a situation where I have not had a Court

respond to my requests, or attempt to cooperate with an agency for the best interest of the children; which

makes me question whether they have ever attempted to consider fully the best interest of these children in

light of all the changes that have occurred.@

                Faced with these circumstances, the Texas court signed two orders on September 20,

2001, memorializing its rulings following the June 25 hearing. The combined effect of the orders was to

deny Saavedra=s petition for enforcement, name Schmidt as sole managing conservator of the children and

                                                    10
Saavedra as possessory conservator, and mandate that all prior orders of the Texas court remain in full

force and effect. Saavedra=s complaints about the two orders have been consolidated on appeal.


                                              DISCUSSION

                Though he raises a number of issues on appeal, Saavedra essentially asks this Court to

determine (1) whether the Texas trial court exceeded its jurisdiction in entering the two September 2001

orders and (2) whether the court erred in refusing to enforce the California custody orders. The Texas

court relied on three grounds for exercising jurisdiction: (1) Texas had become the home state of the

children; (2) the trial court was exercising temporary emergency jurisdiction; and (3) the trial court could

properly exercise modification jurisdiction because this state is a more appropriate or convenient forum for

addressing the needs of the children:


                 The Court further finds that DEBRA KAY SCHMIDT has been a domiciliary of
        the State of Texas and a resident of Travis County for more than 6 consecutive months
        immediately before the commencement of this child custody proceeding. During this time,
        the children have lived with DEBRA KAY SCHMIDT pursuant to orders of this court . . .
        .

                 The Court further finds that this court has invoked temporary emergency
        jurisdiction over the parties and subject matter of this suit under the authority of Texas
        Family Code ' 152.204. . . . The Court further finds that this Court is a more appropriate
        forum to consider the child custody issues pertaining to the children the subject of this suit
        and that it is appropriate for this Court to proceed with this modification action.


                In refusing to enforce the California court=s custody determinations, the Texas court not only

relied on its assumption of temporary emergency jurisdiction, but also referred to the parties= agreement to


                                                     11
be bound by the Hague Convention on the Civil Aspects of International Child Abduction (the Convention),

Oct. 25, 1980, 19 I.L.M. 1501,9 suggesting that the Convention provides an additional basis for its refusal

to enforce the California court orders:


                The Court further finds that by its incorporation of all prior orders, the California
        Judgment further requires that the provisions of the prior Order Pursuant to Stipulation
        rendered on or about April 21, 1995 (and filed on April 26, 1995) shall apply to
        MANUEL SAAVEDRA and DEBRA KAY SCHMIDT. That Order requires that
        MANUEL SAAVEDRA and DEBRA KAY SCHMIDT Ashall abide by the 1980 Hague
        Convention on the Civil Aspects of International Child Abductions and the International
        Child Abduction Remedies Act (P/L/ 100-300), and that these laws may be used to
        enforce any custody disputes in regard to the Stipulation filed with the Superior Court of
        California, County of San Joaquin.@


                The issues raised on appeal are governed by the UCCJEA, adopted by Texas in 1999.

Uniform Child Custody Jurisdiction & Enforcement Act, 76th Leg., R.S., ch. 34, ' 1, 1999 Tex. Gen.

Laws 52. The UCCJEA is the successor statute to the Uniform Child Custody Jurisdiction Act ( the

UCCJA) and shares its goal of resolving custody disputes between geographically separated parents.




        9
          On April 26, 1995, the California court issued an order pursuant to a stipulation signed by
Schmidt and Saavedra, in which they agreed to be bound by the terms of the Hague Convention on the Civil
Aspects of International Child Abduction and the International Child Abduction Remedies Act. See 42
U.S.C.A. '' 11601-11610 (West 1995 & Supp. 2002). Presumably, the parties entered into this
agreement because Saavedra is a citizen of Chile and a permanent resident of the United States.




                                                             12
Phillips v. Beaber, 995 S.W.2d 655, 659 & n.2 (Tex. 1999); In re McCoy, 52 S.W.3d 297, 302 (Tex.

App.CCorpus Christi 2001, orig. proceeding). The UCCJA was designed to:


        (1) Avoid jurisdictional competition and conflict with courts of other States in matters of
            child custody . . . ;

        (2) Promote cooperation with the courts of other States to the end that a custody decree
            is rendered in that State which can best decide the case in the interest of the child;

        (3) Discourage the use of the interstate system for continuing controversies over child
            custody;

        (4) Deter abductions of children;

        (5) Avoid relitigation of custody decisions of other States in this State; and

        (6) Facilitate the enforcement of custody decrees of other States.


Uniform Child-Custody Jurisdiction & Enforcement Act (UCCJEA) ' 101 cmt., 9 U.L.A. 657 (1999).


Modification

                Saavedra complains that the trial court erred in exercising subject matter jurisdiction over

the children to modify the California custody orders. He asserts that California had exclusive continuing

jurisdiction pursuant to the UCCJEA, and that California had expressly refused to decline that jurisdiction.

Because subject matter jurisdiction is a question of law, we apply a de novo standard of review. Mayhew

v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Generally, a court that has jurisdiction to

make an initial child custody determination retains exclusive continuing jurisdiction over future custody

disputes. Tex. Fam. Code Ann. ' 152.202. AInitial child custody determination@ refers to the first child

                                                    13
custody order concerning a particular child. Id. ' 152.102(8). Under the UCCJEA, a court has

jurisdiction to make an initial child custody determination if the state in which the proceeding is initiated is (1)

the home state of the child on the date of the commencement of the proceeding, or (2) was the home state

of the child within six months before the commencement of the proceeding and a parent continues to live in

that state. Id. ' 152.201. In this case, it is undisputed that California was the home state of the children

and properly exercised jurisdiction in making the initial child custody determination.

                 Generally, the court that made the initial child custody determination (in this case, the

California court) will retain exclusive continuing jurisdiction over ongoing custody disputes, unless (1) that

court determines that the children and one parent no longer have a significant connection with the state and

substantial evidence is no longer available there concerning the children=s care, protection, training, and

personal relationships; or (2) either that court or a court of another state determines that the children and the

children=s parents no longer reside in the state. Id. ' 152. 202. Here, the California court made no such

determination. And because the father continues to reside in California, the Texas court could not have

determined that the children and the children=s parents no longer reside in California. See id.; UCCJEA '

202 cmt. 1, 9 U.L.A. 674; see also In re Bellamy, 67 S.W.3d 482, 484 (Tex. App.CTexarkana 2002, no

pet.) (holding that so long as one parent lives in original decree state, that state is only one that can

determine whether jurisdiction continues). The Texas court=s determination that Schmidt and the children

have resided in Texas for more than six consecutive months before the commencement of the modification

suit filed in Texas is of no significance. The California court retains exclusive continuing jurisdiction and is

the only state that can determine if it will continue to exercise that jurisdiction.

                                                        14
                 Absent the California court=s relinquishment of that exclusive continuing jurisdiction, the

Texas court was without jurisdiction to modify the California orders. A court of this state may not modify a

custody determination made by the California court unless (1) the California court determines it no longer

has exclusive continuing jurisdiction or that a court of this state would be a more appropriate forum; or (2) a

court of this state or the California court determines that the children and their parents no longer reside in

California.10 Tex. Fam. Code Ann. ' 152.203. Neither circumstance exists in this case. It is of no

consequence that the Texas court determined that it was a 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.11 We agree with Saavedra that the Texas court erred to the extent that it attempted to

exercise subject matter jurisdiction and modify the custody rights of these parents.




        10
           The modifying court must also have jurisdiction to make an initial custody determination under
section 152.201(a)(1) (home state jurisdiction) or 152.201(a)(2) (significant connections jurisdiction). Tex.
Fam. Code Ann. ' 152.203.
        11
           In its modified custody order dated July 25, 2000, the California court specifically states that it
Ahas and maintains pursuant to the UCCJEA . . . exclusive home-state jurisdiction over all issues relating to
the custody of the minor children of this marriage.@




                                                      15
                Having found that the Texas court did not have jurisdiction to modify the California custody

orders, we need not address Saavedra=s complaint that the Texas court should have declined to exercise its

jurisdiction under the Aclean hands@ section of the family code.12 See id. ' 152.208.


The Hague Convention

                Saavedra also complains that the trial court erred by exercising subject-matter jurisdiction

under the Hague Convention because this case does not involve international child abduction. In choosing

to apply the Convention, the court relied on a prior California court order in which Schmidt and Saavedra

agreed to be bound by the Convention. 13 The court cited the Convention as a basis for refusing to enforce

the California court=s child custody determination:




        12
            We note that section 152.208 is not intended to restrict a court=s exercise of temporary
emergency jurisdiction. Tex. Fam. Code Ann. ' 152.208 (AExcept as otherwise provided in Section
152.204 [the temporary emergency jurisdiction statute] or other law of this state, . . . .@). Thus, we do not
address the effect of Schmidt=s conduct on the court=s exercise of temporary emergency jurisdiction.
        13
          The parties presumably entered into this agreement because Saavedra is a citizen of Chile. If the
controversy here were international in nature, there is no dispute that the parties would be bound by the
Convention with or without their agreement, as Chile is a signatory to the Convention.




                                                      16
                The Court finds that the children have now settled into their environment in the
        home of Respondent DEBRA K. SCHMIDT. See Article 12, Hague Convention. The
        Court finds that a grave risk that return of the children the subject of this suit to MANUEL
        SAAVEDRA would expose the children to physical or psychological harm or otherwise
        place the children in an intolerable situation. See Article 13(a), Hague Convention.


                The Hague Convention was established in 1980 to provide a remedy for international child

abductions. Hague Convention, Preamble; International Child Abduction Remedies Act, 42 U.S.C.A. '

11601(a)(4) (West 1995). It provides an international complement to the UCCJEA and the federal

Parental Kidnaping Prevention Act (the PKPA), 28 U.S.C.A. ' 1738A (West 1994 & Supp. 2002). See

42 U.S.C.A. ' 11603(h) (West 1995). The remedies available under the Convention may be invoked

when the moving party establishes by a preponderance of the evidence that (1) he or she had lawful custody

rights to the child when the child was wrongfully removed; (2) the child was wrongfully removed or retained

from his or her habitual residence; and (3) at the time of removal, those custody rights were actually

exercised. 42 U.S.C.A. ' 11603(e)(1); In re Prevot, 59 F.3d 556, 560 (6th Cir. 1995). Even if these

requirements have been satisfied, a court=s duty to order return of a wrongfully removed child is not

absolute, and the two provisions cited by the Texas court set forth grounds upon which return may be

denied. In other words, a court may decline to return the child if (1) return proceedings are commenced a

year or more after the wrongful removal and the child is settled in his or her new environment, Hague

Convention, Article 12, or (2) there is a grave risk that return would expose the child to physical harm or

place the child in an intolerable situation, Hague Convention, Article 13(b). See also 42 U.S.C.A. '




                                                    17
11603(e)(2); Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg.

10,494, 10,510 (March 26, 1986).

                Here, the Texas court appears to have relied on exceptions to mandatory return of the

children under the Convention even though neither party invoked the remedies available under the

Convention. The Convention is intended to deter abductions by promoting enforcement of facially valid

orders subject only to one of the exceptions; wrongful removal of a child will not gain the abductor a new

forum in which to resolve the custody dispute. 42 U.S.C.A. ' 11601(b)(4) (Convention does not empower

courts to determine merits of custody claims); Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.

1993). More importantly, however, the dispute between Schmidt and Saavedra is an interstate dispute; the

Convention only applies to child abduction cases that are international in nature.14 See 42 U.S.C.A. '

11601(b)(3)(A). Thus, despite the parties= agreement to be bound by the Convention, the Convention does

not govern this jurisdictional dispute between Texas and California. Furthermore, the Convention is

intended to complement not supplant the goals of the UCCJEA and the PKPA. By granting a new forum to

a parent who wrongfully removed the children from California, the Texas trial court contravened the basic

principle of the Convention, as well as the UCCJEA and the PKPA. We therefore conclude that the trial




        14
           The Convention uses the term AContracting State,@ but because of the international scope of the
Convention, the term state refers to country. See Brigitte Bodenheimer, The Hague Draft Convention on
International Child Abduction, 14 Fam. L. Q. 99, 100 n.9 (1980/81).




                                                   18
court could not rely on the Convention as a basis for assuming jurisdiction to modify rather than enforce the

California court=s child custody determination.


Enforcement of Child Custody Determination Under Section 152.306

                  Saavedra also argues that the trial court erred in refusing to enforce the California court=s

custody determination, as enforcement was required under section 152.306 of the family code. See Tex.

Fam. Code Ann. ' 152.306. Sections 152.303 and 152.306(b) instruct courts of this state to recognize

and enforce a child custody determination of a court of another state. Tex. Fam. Code Ann. ' 152.303,

.306(b); see also UCCJEA ' 303 cmt., 9 U.L.A. 690-91 (courts have duty to enforce and not modify

custody determinations made by other states in substantial conformity with UCCJEA); PKPA, 28 U.S.C.A.

' 1738A(a) (same). Under section 152.310, upon finding that a petitioner is entitled to immediate physical

custody of the child, the court must award that party custody without relitigating the custody rights. Tex.

Fam. Code Ann. ' 152.310. If the custody determination has been registered, there is only one defense to

its enforcement: that the order has been vacated, stayed, or modified by a court with jurisdiction to do so.

Id. ' 152.310(a)(2); see also UCCJEA, 9 U.L.A. 653 (Prefatory Note) (enforcing court=s inquiry is limited

because neither UCCJEA nor PKPA allows enforcing court to modify custody determination). Unless

Schmidt could establish that the California order had been stayed or vacated, the Texas court was required

to enforce it. And to the extent that the Texas court order can be construed as a final order refusing to

enforce California=s child custody determination, this Court would be required to reverse that order.15


        15
             A final order in an enforcement proceeding may be appealed. Tex. Fam. Code Ann. ' 152.314.

                                                      19
Temporary Emergency Jurisdiction

                 Section 152.310, however, also provides an alternative to rendering a final order on a

petition to enforce when circumstances warrant the assumption of temporary emergency jurisdiction. Tex.

Fam. Code Ann. ' 152.310; see also UCCJEA ' 303 cmt., 9 U.L.A. 690 (AIf the child would be

endangered by the enforcement of a custody or visitation order, there may be a basis for the assumption of

emergency jurisdiction . . . .@). In the order announcing its refusal to enforce the California order, the Texas

trial court included at least two bases for its assumption of jurisdiction: home-state jurisdiction, which we

have held was error, and temporary emergency jurisdiction. If the court issued an order pursuant to its

temporary emergency jurisdiction, the court may not have erred by refusing to enforce the California court=s

order.16 See UCCJEA ' 303 cmt., 9 U.L.A. 690 (upon finding of emergency, court issues temporary

order directing parties to proceed either in court exercising continuing jurisdiction or court with jurisdiction

to modify).

                 Under section 152.204, a court of this state may assume temporary jurisdiction over a

custody dispute if the child is present in this state and it is necessary to protect a child subjected to or

threatened with mistreatment or abuse. Tex. Fam. Code Ann. ' 152.204. A trial court enjoys broad


        16
            If the orders were indeed temporary orders, as opposed to a final order denying Saavedra=s
petition to enforce a child custody determination, those orders are not subject to appeal. Tex. Fam. Code
Ann. ' 105.001(e).




                                                      20
discretion in issuing orders for immediate protection of a child. Garza v. Harney, 726 S.W.2d 198, 202

(Tex. App.CAmarillo 1987, orig. proceeding). States have a parens patriae duty to children within their

borders, and the possibility that allegations of immediate harm might be true is sufficient for a court to

assume temporary emergency jurisdiction in the best interests of the child under the UCCJEA. In re Nada

R., 108 Cal. Rptr. 2d 493, 500 (Ct. App. 2001); In re Joseph D., 23 Cal. Rptr. 2d 574, 580 (Ct. App.

1993) (quoting Hache v. Riley, 451 A.2d 971, 975 (N.J. Super. Ct. 1982)). The duty of states to

recognize and enforce a custody determination of another state must yield if circumstances require

temporary emergency orders to protect the child. UCCJEA ' 204 cmt., 9 U.L.A. 677 (duties of states to

recognize, enforce and not modify custody determinations of other states do not take precedence over need

to protect child). Any order issued under emergency circumstances must be temporary in nature; the order

must specify a period that the court considers adequate to obtain an order from the state with jurisdiction.

Tex. Fam. Code Ann. ' 152.204(c); Garza, 726 S.W.2d at 203 (holding court exercising temporary

emergency jurisdiction was empowered to act, but only on short term, temporary, emergency basis). The

temporary order shall remain in effect only until proper steps are taken in the original forum state to

adequately protect the children or until the specified period expires. Tex. Fam. Code Ann. ' 152.204(c);

Garza, 726 S.W.2d at 203.

                Once a court assumes temporary emergency jurisdiction, it has a duty to communicate with

the other state that has asserted custody jurisdiction and to retain a record of those communications. Tex.

Fam. Code Ann. '' 152.110(f), .204(d). This mandatory duty of cooperation between the courts of

different states is the hallmark of the UCCJEA; it is this cooperation that is intended to lead to an informed

                                                     21
decision on custody. Joseph D., 23 Cal. Rptr. 2d at 583 (quoting Fry v. Ball, 544 P.2d 402, 407 (Colo.

1975); Guardianship of Donaldson, 223 Cal. Rptr. 707, 714 (Ct. App. 1986)). One of the reasons for

consulting with the other state=s court is to determine the duration of the temporary order. Tex. Fam. Code

Ann. ' 152.204(d); In re C.T., 121 Cal. Rptr. 2d 897, 906 (Ct. App. 2002); see also Patricia M. Hoff,

The ABC=s of the UCCJEA: Interstate Child-Custody Practice Under the New Act, 32 Fam. L.Q.

267, 284 (1998). The court exercising exclusive continuing jurisdiction has the reciprocal duty to

communicate with the court exercising emergency jurisdiction. Tex. Fam. Code Ann. ' 152.204(d); see

also Hoff, supra, at 284.

                Temporary emergency jurisdiction is reserved for extraordinary circumstances. UCCJEA '

204 cmt., 9 U.L.A. 677. A review of this record reveals that the Texas trial court believed it was faced

with such extraordinary circumstances when it issued the orders on appeal here. At the July 5, 2000

hearing,17 Judge Meurer commented on her attempts to communicate with the California court:


                 In speaking with Commissioner Appel, it is apparent that the courts and the judges
        are extremely upset with Ms. Schmidt. It is also a great concern that perhaps in their anger
        with Ms. Schmidt for her failure to comply with court orders, they have failed also to
        address the best interest of the children, who are the subject of this lawsuit.

                 I have requested from Commissioner Appel that she have CPS in California work
        with us to arrange visitation, and was told no. The fact that the Department there has made
        a home study that=s totally inadequate . . . I find ludicrous.




        17
           The reporter=s record filed with this Court does not include any prior hearings or proceedings.
The July 5 hearing is the earliest hearing included in the reporter=s record.


                                                    22
The court further noted that before he was awarded sole custody, Saavedra had only enjoyed supervised

visitation with the children:


                 The record should reflect that the latest order that came down from California sets
        forth that up until and through 1997, [Saavedra] has always been limited to supervised
        visitation.

                It should further be noted that when he was given sole custody, the Court then
        found that the children cannot be placed in the father=s home, and he is to have supervised
        custody with the children. And now California has simply dropped that, and given custody
        with the finding that this Court cannot accept, and that is; that there=s a, Aminimal@ risk of
        re-offending so long as he maintains sobriety. I don=t believe that I am willing to take any
        risks with that statement.


Further expressing her frustration with the California court=s refusal to communicate with her, Judge Meurer

commented:


                I have asked California to assist me. Their intent is to not make any reasonable
        orders for transition. I have asked to place these children in California CPS with the Court
        supervising the visits and making the transition. That request was denied.
        ....

                I understand that there are orders there. I understand that the [UCCJEA] can=t
        contemplate that Courts will [not] communicate. I have never received a call from any
        judge in California. I have been promised calls back, and they have never returned my
        calls. They have never answered my questions. The only thing I got back was an order
        affirming everything again.




                                                     23
               During the August 14 hearing, Saavedra brought to the trial court=s attention a modified

California order decreeing that upon their return to California, the children shall be placed with Child

Protective Services. The Texas court responded:


                Mr. Lusk [Saavedra=s counsel], I saw the home studies by Child Protective
       Services. I find it was woefully inadequate. I have found and made findings that the Court
       in California has continuously refused to communicate with this Court, which is well shown
       again by the fact that I=ve never seen this [1999 modified order], excepting that I was
       provided a copy of this order by the District Attorney=s office.
       ....

                It would appear to me that if anything, these orders are simply a manipulation of the
       system. They do not address best interest. There=s no indication that they address best
       interest. And there=s no indication from anyone that that has been addressed. And this
       Court will continue to take that responsibility until it is fully addressed.


               At the June 25, 2001 hearing on Saavedra=s motion to enforce, the trial court heard

disturbing evidence from a Texas CPS social worker, Anna Warde, indicating that the Alameda County

CPS had been uncooperative and had not performed an adequate home study. During cross-examination,

Warde confirmed that Alameda County CPS had approved the children=s placement with Saavedra:


       Q. With respect to the home study that was done in California.

       A. Uh-huh.

       Q. That home study approved Mr. Saavedra=s home as a placement for the children,
          didn=t it?

       A. It did. And it only used Mr. Saavedra=s information and didn=t try and get any
          information from other parties.



                                                    24
        Q. Well, it - - it used all of the information that you provided to them, didn=t it?

        A. I did not provide anything to them. I was not contacted by those people.
        ....

        Q. There was no background information provided to them for - - to even tell them what
           the purpose of the home study was.

        A. No.

        Q. They just got a request to do a home study on Manuel Saavedra and his address, and
           that was it?

        A. And that=s it. And they contacted him and him only.


                Questioning by Schmidt elicited more frustration from Warde regarding her dealings with the

Alameda County CPS:

        Q. . . . Did the California CPS office cooperate with your agency in arranging visitation
           for Mr. Saavedra and the children?

        A. No. I haven=t been able to have any contact with - - I don=t know what=s going on in
           California CPS but they do not return phone calls.

        Q. But you did make an attempt?

        A. I made several attempts.


Warde testified that the California CPS had set up no transition plan for the children.

                It is apparent from the record that the Texas court perceived an emergency situation

warranting its exercise of temporary emergency jurisdiction when it discovered that the California court had

awarded Saavedra sole legal custody of the children, had implemented no transition plan, and had


                                                    25
disallowed any contact between Schmidt and the children. Saavedra, who had been convicted of molesting

a younger female family member, had never enjoyed unsupervised visitation with his young daughters in

California or in Texas. The same California court that awarded Saavedra sole legal custody of the children

had previously required that Saavedra=s access to them be supervised. And yet, seemingly determined to

punish Schmidt without regard for the children=s best interests, the California court decided that Saavedra

was suddenly qualified to have sole custody of the children. Schmidt, on the other hand, was prohibited

from having any contact with the children because she had violated prior court orders. The Texas court was

rightfully alarmed that sole custody of two young girls was awarded to a registered sex offender, while their

mother was not allowed to maintain any contact with them. See Brigitte M. Bodenheimer, Progress Under

the Uniform Child Custody Jurisdiction Act & Remaining Problems: Punitive Decrees, Joint

Custody, & Excessive Modifications, 14 Cal. L. Rev. 978, 1004, 1007 (1977) (punitive decrees do not

command respect that is due other out-of-state custody decrees and should not be recognized under

UCCJA); Brigitte M. Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative

Remedy for Children Caught in the Conflict of Laws, 22 Vand. L. Rev. 1207, 1240 (1969) (expressing

doubt that Athere is ever justification for punitive custody changes which disrupt a child=s life merely to

uphold the authority of a court, especially since the disciplinary measure usually leads to further defiance of

the court and lack of respect for the punitive measures by other courts@). It expressed alarm at the totally

inadequate study of Saavedra=s home and a modified order that appeared to superficially address the Texas

court=s concerns. The Texas court noted that it had been unable to secure any assurance that the California




                                                      26
court would implement a transition plan to assist the children with this drastic upheaval in their daily living

arrangements.

                 Faced with these circumstances and the failure of the California court to address the best

interests of the children in any of its orders, the Texas court assumed temporary emergency jurisdiction in

July 2000 and again relied on its emergency jurisdiction in announcing its September 2001 orders.

Although the UCCJEA does not allow reevaluation of another state=s best interest determination, see

UCCJEA, 9 U.L.A. 652 (Prefatory Note), section 152.204 is specifically designed to ensure protection of

a child. See id. ' 204 cmt., 9 U.L.A. 677.

                 After the Texas court first assumed temporary emergency jurisdiction in July 2000, its

concerns were compounded when the California court refused to communicate about plans for these two

girls. Our review of the record underscores the total lack of communication by the California court. The

UCCJEA was premised on the assumption that sister state courts will communicate with one another;

indeed, communication is mandatory under the Act once a court assumes temporary emergency jurisdiction.

See Tex. Fam. Code Ann. ' 152.204(d); Joseph D., 23 Cal. Rptr. 2d at 583. Cooperation between

courts is required to resolve circumstances that threaten the safety of children, and communication is

necessary to limit the duration of the temporary orders. See Tex. Fam. Code Ann. ' 152.204(d). These

goals cannot be attained without effective communication between the state courts.

                 The California court=s modification of its order placing the children with the Alameda

County CPS is no substitute for the kind of communication and cooperation between the courts that would

ensure the effective protection of these children. According to Warde, the Alameda County CPS

                                                      27
determined that Saavedra=s home was approved as a placement for the children, based on a Awoefully

inadequate@ home study. And although the California court modified its order, it had previously determined

that granting Saavedra sole legal custody was appropriate, in spite of his prior molestation conviction and

the fact that he had never enjoyed unsupervised visitation with the children. Furthermore, no transition plan

had been implemented to ensure a healthy transition for the children. The California court consistently

demonstrated its desire to punish Schmidt for her failure to comply with its orders, rather than addressing

the best interests of the children in any of its orders. The Texas court was justified in questioning the

motivations behind the California court=s decision to modify its orders. It expressed concern that the

children not simply go in the front door of the Alameda County CPS and out the back door to Saavedra.

The California court=s actions are inexplicable; the Texas trial court aptly observed, AIn my years on the

Bench, I have not experienced a situation where I have not had a Court respond to my requests, or attempt

to cooperate with an agency for the best interest of the children . . . .@ Likewise, this Court has never seen

the goals of the UCCJEA thwarted in such a blatant manner. The only defense to enforcement of the

California order was for the Texas court to extend its temporary emergency jurisdiction. The court had

received no assurance that the emergency situation had been resolved or even that it would soon be

resolved by the California court.

                We are not alone in remarking on the California court=s inexplicable failure to communicate

after the Texas trial court assumed temporary emergency jurisdiction to protect these children. When

Schmidt was found guilty of contempt and jailed (for removing the children in violation of the initial custody

order and for not returning them as subsequently ordered), the California Court of Appeal for the third

                                                     28
appellate district granted two petitions for writ of habeas corpus, recounting in detail the California trial

court=s Aindefensible refusal to communicate with the Texas court.@ In re Schmidt, Nos. C040583,

C040942, C040966, slip op. at 26, 2002 Cal. App. Unpub. LEXIS 7016, at *31 (Ct. App. July 29,

2002). Moreover, the California appellate court opined that the record Ashows the Texas court=s

assumption of emergency jurisdiction was not the act of a renegade court oblivious to the UCCJEA,@ and

that Athe dilemma faced by the Texas court in deciding, albeit reluctantly, to assume emergency jurisdiction

over the children was real and simply cannot be downplayed.@ Id., slip op. at 25, 34, 2002 Cal. App.

Unpub. LEXIS 7016, at *30-32.

                 We reiterate that the trial court=s assumption of temporary emergency jurisdiction does not

include jurisdiction to modify the California court=s child custody determination. See Abderholden v.

Morizot, 856 S.W.2d 829, 834 (Tex. App.CAustin 1993, no writ) (holding that exercise of emergency

jurisdiction does not confer authority to make permanent custody disposition or modify custody decree of

court with jurisdiction); Garza, 726 S.W.2d at 203 (same) (quoting Hache, 451 A.2d at 975). A court=s

exercise of temporary emergency jurisdiction is temporary in nature and may not be used as a vehicle to

attain modification jurisdiction for an ongoing, indefinite period of time. The Texas court failed to include a

definite duration for its temporary emergency orders. The temporary orders must remain in effect for only

as long as necessary to ensure that the emergency situation will be resolved and the safety of the children

will be protected. See Tex. Fam. Code Ann. ' 152.204; Garza, 726 S.W.2d at 203. The duration of the

temporary orders is generally an issue to be determined when the courts of two sister states communicate




                                                     29
with one another. This Court, however, is without jurisdiction to consider any omissions in the temporary

orders.

                 Despite the prior history of this case, the California court can protect its exclusive continuing

jurisdiction over this custody dispute by cooperating to resolve the emergency situation and by ensuring the

Texas court that it will address the safety of these children, as envisioned by the UCCJEA. The Texas court

may enter temporary orders maintaining custody in Schmidt for a period of time no longer than reasonably

necessary to allow the California court to consider the evidence that was before the Texas court18 and to

develop a realistic transition plan appropriate to all the circumstances that will provide the children with

access to both parents, who seem to need guidance in resolving their dispute over custody rights. See, e.g.,

Joseph D., 23 Cal. Rptr. 2d at 584 (authorizing trial court=s rendition of temporary orders not strictly within

parameters of UCCJEA under its equity powers). The California court may issue a similar order in

accordance with the cooperative spirit of the UCCJEA, ensuring that the two girls will not be returned to

Saavedra until a thorough home study has been conducted and an appropriate transition plan implemented,


          18
             The Texas court heard evidence indicating that Schmidt and Saavedra had been able to work out
visitation between them in a Avery civil manner.@ Both parties were complying with the Texas court=s
orders. The court also heard evidence that the two girls have a positive established relationship with their
mother and have settled into their environment in their mother=s home; the girls are continuing to adjust to
visitation with their father. Warde testified that in her opinion, the girls would face tremendous emotional
distress if returned to their father at this time and their placement with the Alameda County CPS could be
extremely traumatic. The California court did not have this information when it rendered its final divorce
decree. See Brigitte Bodenheimer, Uniform Child Custody Jurisdiction Act, 3 Fam. L. Q. 304, 312
(1969) (observing that various provisions in UCCJA facilitating collection of information from sister states
assures that custody decision that is to be enforced has been reached under conditions making it worthy of
respect and deference by other states).


                                                       30
including access to both parents. Such an order would assure the Texas court that both courts will work to

resolve the emergency situation and allow the Texas court to confidently return the girls to California. By so

communicating, the California court and the Texas court should agree on a time period when these plans will

be in place to ensure the protection of the children. Then, the Texas court must relinquish its temporary

emergency jurisdiction.


                                             CONCLUSION

                We hold that the Texas court was without jurisdiction to modify the California court=s

custody determination. The Texas court, however, relied on temporary emergency jurisdiction to enter its

orders. The record reflects that the California court refused to communicate with the Texas court

concerning realistic plans to protect the safety of these children. The UCCJEA recognizes emergency

concerns over a child=s safety as a defense to enforcement of another state=s custody orders, but only until

the emergency can be resolved. Because we construe the Texas court=s orders as temporary orders

rendered pursuant to its exercise of temporary emergency jurisdiction, we dismiss this appeal for want of

jurisdiction.19 The cause remains pending in the trial court.




        19
            Because we construe the Texas court=s orders as temporary orders and dismiss this appeal for
want of jurisdiction, we need not address Saavedra=s complaint that he had not been served with citation on
the ad litem=s motion to modify nor his complaint that the trial court erred in denying his request for fees,
costs, and expenses under sections 152.310 and 152.312 of the family code. See Tex. R. App. P. 47.1.


                                                     31
                                               Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Dismissed for Want of Jurisdiction

Filed: October 31, 2002

Publish




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