Petition for Writ of Mandamus Denied and Memorandum Opinion filed August 8,
2012.




                                          In The

                       Fourteenth Court of Appeals

                                  NO. 14-12-00641-CV

                      IN RE MICHAEL GLYN BROWN, Relator


                             ORIGINAL PROCEEDING
                               WRIT OF MANDAMUS
                                  247th District Court
                                 Harris County, Texas
                           Trial Court Cause No. 2006-25428


                   MEMORANDUM                        OPINION

        On July 11, 2012, relator filed a petition for writ of mandamus in this court. See
Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52. Relator asked this court to
compel respondent, the Honorable Bonnie Crane Hellums, presiding judge of the 247th
District Court of Harris County, Texas, to reverse her ruling denying relator's Request for
Court to Decline Jurisdiction.

                                    BACKGROUND FACTS

        Relator was divorced from Darlina Barone by final judgment signed November 1,
2001, in Montgomery County. In 2006, Barone filed a petition in Harris County and the
court signed an order in 2006. Barone then filed a motion to modify the parent-child
relationship and application for emergency temporary orders in April 2008. In April
2010, Barone amended her petition to modify to include a request to terminate relator's
parental rights to their two children. In September of 2010, the parties agreed to abate the
issues regarding the termination of relator's parental rights until November 2010.

       On May 25, 2012, relator filed a REQUEST FOR COURT TO DECLINE
JURISDICTION based solely on Texas being an inconvenient forum. A hearing was
held June 1, 2012. The record of the hearing indicates trial has been set for September
2012. At the hearing, relator contended for the first time the trial court lacked subject
matter jurisdiction because the request to terminate had to be filed as an original suit and
could not be incorporated in the motion to modify. Relator argued that since the children
had resided in Colorado since December 1, 2009, the suit to terminate his parental rights
should have been filed in Colorado, pursuant to the Texas Uniform Child Custody
Jurisdiction and Enforcement Act. See Tex. Fam. Code Ann. §§ 152.001-152.317 (West
2008 & Supp. 2011). After hearing argument from both parties, the trial court requested
briefing. Relator filed a brief on June 16, 2012, raising subject matter jurisdiction, and a
second hearing was held June 19, 2012. During the hearing, the trial court orally denied
relator's request. It is from that ruling relator seeks mandamus relief.

                            SUBJECT MATTER JURISDICTION

       In his petition, relator asserts the trial court does not have subject matter
jurisdiction over the request to terminate his parental rights. The Texas Supreme Court
has held that mandamus review is appropriate in child custody cases where there is a
jurisdictional dispute. Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994) (orig.
proceeding); In re Burk, 252 S.W.3d 736, 738–39 (Tex. App. -- Houston [14th Dist.]
2008, orig. proceeding). Whether a trial court has subject matter jurisdiction is a question
of law we review de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928
(Tex. 1998); see also Powell v. Stover, 165 S.W.3d 322, 324–25 (Tex. 2005) (orig.
proceeding); Burk, 252 S.W.3d at 738–39.

       Relator asserts the trial court lacks subject matter jurisdiction over the termination

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claim1 because there is no significant connection between Texas and Barone and the
children and none of the parties reside in Texas. See Tex. Fam. Code Ann. § 152.202(a)
(West 2008). Section 152.202(a) provides that a court of this state which has made a
child custody determination2 consistent with section 152.201 has exclusive continuing
jurisdiction over the determination until:

               (1) a court of this state determines that neither the child, nor the
        child and one parent, nor the child and a person acting as a parent, have a
        significant connection with this state and that substantial evidence is no
        longer available in this state concerning the child's care, protection,
        training, and personal relationships; or
                (2) a court of this state or a court of another state determines that the
        child, the child's parents, and any person acting as a parent do not presently
        reside in this state.
See Tex. Fam. Code Ann. § 152.202 (West 2008). As the court which made the initial
child custody determination, the Texas trial court has exclusive continuing jurisdiction
unless either subsection one or two are applicable.

        Regarding subsection one, the record does not establish that "substantial evidence
is no longer available in this state concerning the child's care, protection, training, and
personal relationships." According to opposing counsel at the June 1st hearing:



        . . . The evidence with regard to the children's safety around Dr. Brown is
        here in Houston, Harris County, Texas. It's not in Colorado. The only thing
        that's in Colorado is the children and how they're doing.
             What we're concerned with in the petition to Modify is, is Michael
        Brown a danger to his children? And if so, what type of access should he
        1
          Relator's original contention, also urged in his petition, that the termination claim could not be
included in the motion to modify, is not supported by either of the statutes he cites. Section 102.009
provides for "Service of Citation" upon the filing of a petition in an original suit. The statue does not
speak to whether a request for termination of parental rights can properly be included in a motion to
modify. See Tex. Fam. Code Ann. § 102.009 (West 2008). Section 102.013 establishes "Docketing
Requirements" and contains no provision requiring a request for termination of parental rights to be filed
as an original suit. See Tex. Fam. Code Ann. § 102.013(a) (West 2008).
        2
        Although the original 2006 order is not part of the record, relator does not dispute that the Harris
County court has made a child custody decision.

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       have to these children? All of that evidence is here. All of the shrinks are
       here, the evaluator is here. All of that evidence is here in Harris County.

No evidence was presented to the contrary and we cannot simply presume there is no
evidence in Texas relevant to the children's welfare.

       For subsection two to deprive the Texas trial court of jurisdiction, it must be
determined that neither the children, Barone, nor relator reside in Texas. The record
reflects the children and Barone reside in Colorado. Relator has included an affidavit in
the record stating that he is a resident of Florida and is setting up a business in Florida.
He has a Florida driver's license and has registered to vote there. His company has
purchased a condo in Florida and he has leased an apartment.

       However, at the June 1st hearing, opposing counsel presented a transcript of
hearings held in another case on May 15th. The trial court read from the transcript
relator's testimony "My permanent residence is still here at the Four Seasons." Counsel
argued the testimony was mischaracterized but the trial court subsequently stated, "But
his permanent residence is still here in Houston."

       Because there is evidence in the record that substantial evidence relevant to the
issues in this case is available in this state, and there is evidence in the record that relator
resides in this state, we find relator has not established the Texas court lost exclusive
continuing jurisdiction under section 152.202(a) .

                                   INCONVENIENT FORUM

       Relator further contends the trial court should have declined to exercise
jurisdiction over the entire action on the grounds Texas is an inconvenient forum. See
Tex. Fam. Code Ann. §152.207 (West 2008). We consider relator's contention under an
abuse of discretion standard. See Coots v. Leonard, 959 S.W.2d 299, 301 (Tex. App. --
El Paso 1997, no pet.) (citing Creavin v. Moloney, 773 S.W.2d 698, 702 (Tex. App. --
Corpus Christi 1989, writ denied)). In determining whether the Texas court abused its
discretion, we review whether the court acted without reference to any guiding rules and
principles and whether the court's actions were arbitrary and unreasonable. Id. (citing
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Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939),
Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984)). The fact that the
trial court may decide a matter within its discretion differently than would the appellate
court does not demonstrate an abuse of discretion. Id. (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).

       "Before determining whether it is an inconvenient forum, a court of this state shall
consider whether it is appropriate for a court of another state to exercise jurisdiction."
See Tex. Fam. Code Ann. §152.207(b) (West 2008). For this purpose, the following
factors are relevant:

               (1) whether domestic violence has occurred and is likely to continue
       in the future and which state could best protect the parties and the child;
              (2) the length of time the child has resided outside this state;
               (3) the distance between the court in this state and the court in the
       state that would assume jurisdiction;
              (4) the relative financial circumstances of the parties;
               (5) any agreement of the parties as to which state should assume
       jurisdiction;
             (6) the nature and location of the evidence required to resolve the
       pending litigation, including testimony of the child;
             (7) the ability of the court of each state to decide the issue
       expeditiously and the procedures necessary to present the evidence; and
               (8) the familiarity of the court of each state with the facts and issues
       in the pending litigation.

See Tex. Fam. Code Ann. §152.207(b)(1)-(8) (West 2008). In regards to the above
factors, the record reflects:

        domestic violence has occurred;

        the children have resided outside of the state for at least two years;

        the distance is over 1,000 miles to the Colorado court;

        Barone seeks payment of the expenses to proceed in Texas from relator;

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       there was no agreement on jurisdiction;

       current information regarding the children would be in Colorado but evidence
       regarding relator and any danger he poses to the children is in Texas;

       this proceeding is set for trial in Texas in September 2012; and

       the Texas court is familiar with the facts and issues in the pending litigation.

       Several factors weigh in favor of finding Colorado to be a more appropriate
forum; the length of time the children have resided in Colorado; the fact that relator is
being asked to pay for the travel expenses; and that current information about the children
is more readily available in Colorado. However, weighing against such a finding are that
domestic violence has occurred in the past, and that Barone claims the evidence relevant
to whether relator poses a danger to the children is in Texas. Also, the Texas court is
familiar with the facts and issues. This proceeding has been pending in the Texas court
for over two years and is set for trial in less than two months. Relator made no complaint
the forum is inconvenient until now.

       Because the record does not reflect Colorado is a more appropriate forum than
Texas, the trial court's decision to deny relator's request to decline jurisdiction was not
arbitrary and unreasonable. We therefore find the trial court did not abuse its discretion
and mandamus relief is unwarranted.

                                         CONCLUSION

       Based on the above analysis, we find relator has not established the trial court
lacks subject matter jurisdiction.     Further, we find the trial court did not abuse its
discretion in denying relator's request for the trial court to decline jurisdiction as an
inconvenient forum. Accordingly, we deny relator’s petition for writ of mandamus.


                                          PER CURIAM

Panel consists of Justices Boyce, Christopher and Jamison.

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