                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-10-00360-CV

                   IN RE SUSANNE CLAIRE WORKMAN



                               Original Proceeding


                          DISSENTING OPINION


      In this original proceeding, the Relator complains that the trial court took

jurisdiction of the children, who are the subject of a proceeding out of Ohio and whose

“home state” is currently Colorado, and rendered temporary orders. The Relator’s

primary complaint focuses on the lack of evidence required for a trial court to assert

emergency temporary jurisdiction.

      It is undisputed that at the time this proceeding was filed Colorado was the

“home state” of the two children which are the subject of this proceeding. The parents

were divorced in Ohio. The mother was awarded decision-making authority regarding

where the children would live. The children have lived with their mother in Colorado

for approximately three years prior to the events that gave rise to this proceeding.

Those events began on June 1, 2010 when the father went to Colorado and picked up
the children and all their belongings.       Four weeks later the legal proceedings,

wrangling, and posturing began.       Now we have this mandamus proceeding.             We

requested a response. The Court denies the petition for writ of mandamus. I would

conditionally grant the petition.

       The statute and case authority regarding temporary emergency jurisdiction is

clear. A trial court may only assert temporary emergency jurisdiction under Texas

Family Code section 152.204 in extraordinary circumstances. The statute provides:

       A court of this state has temporary emergency jurisdiction if the child is
       present 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 mistreatment or abuse.

TEX. FAM. CODE § 152.204(a). Further, if an order is rendered under this subsection of

the Family Code, the section also provides that

       any order issued by a court of this state under this section must specify in
       the order a period that the court considers adequate to allow the person
       seeking an order to obtain an order from the state having jurisdiction
       under Sections 152.201 through 152.203.

TEX. FAM. CODE § 152.204(c). The order rendered by the trial court does not specify the

period the trial court considers adequate. Such a failure will allow this proceeding in

Texas to languish for an unknown period of time before Colorado may assert its rightful

control over this proceeding. At the very least, the trial court should be compelled to

render a proper order under the statute under which it asserts jurisdiction so that the

outside time limit that this proceeding will be pending in Texas is established.

       But I contend that the trial court lacks jurisdiction because on the undisputed

facts of the case, the evidence does not meet the level necessary for the trial court to

In re Workman                                                                         Page 2
obtain jurisdiction under the relevant statute. I believe this is because the trial court

was improperly influenced by the testimony that the parties may have agreed to a more

or less permanent change of homes for the children. Evidence of such an agreement,

which may be compelling evidence for the Colorado Court to consider when

considering a change in circumstances justifying a new custodian with the authority to

designate the home of the children, has no place in a hearing to determine whether the

trial court in Texas has Temporary Emergency Jurisdiction.

       The testimony relevant to the issue was summarized on re-cross and re-direct

examination of the father, the Texas resident, as follows:

                                       RE-CROSS

              Q. So, in other words, you were going to get a TRO even if she had
       gotten here on Saturday, correct?
              A. That’s correct.
              Q. Just because you thought they’re better off here?
              A. I did.
              Q. But no particular danger of any kind of physical violence,
       correct?
              A. No.
              Q. No reason at all to think Susanne would physically harm them?
              A. No.
              Q. No reason to think that Susanne would deprive them of food or
       anything like that. You’re not saying that, are you?
              A. No. I have never conten – made any of those contentions.
              Q. Okay. And you’re not saying that she is a child abuser or
       anything like that, correct?
              A. No.
              Q. And so you’re not suggesting or you’re not testifying at all or
       expressing any kind of opinion that Susanne would have abused these
       two boys, correct?
              A. Define abuse. You want to leave a child alone all day for 12
       hours without his brother or anything that he owns?
              MR. DAVIS: Object to nonresponsive.
              THE COURT: Overruled.

In re Workman                                                                      Page 3
           Q. (By Mr. Davis) All right. So – well, do you think that she
      would have abused them?
           A. Physically, no.
           Q. Okay. You think that she would have mistreated them?
           A. No.

                                        ***

                      FURTHER REDIRECT EXAMINATION

             Q. Okay. Do you think, in your opinion, is there a danger of them
      not coming back if she’s allowed to take them?
             A. I – I would think so, yes. You know, based on what has
      occurred here, I don’t think that – that I would be able to get them back
      without spending a whole lot more money and going back to court.
             Q. Okay. Now, as far as the conditions that – that were in
      Colorado, whenever you came up there to get them, the living conditions,
      can you tell the Court what condition the house was in?
             A. Oh, the house was a complete mess, filthy, cluttered. The kids’
      rooms were disgusting. It was obvious that she had not, you know, forced
      them to clean up after themselves. You know, they didn’t – they didn’t
      have clean laundry.
             Q. What – what time did you arrive over there?
             A. It was about lunchtime.
             Q. Okay. And where was Ms. Workman whenever you – or where
      was your ex-wife when you came up there?
             A. She was home in bed whenever I arrived. The children got her
      up when I got there.
             Q. Okay, and it’s your condition – contention that based on your
      previous conversations with your wife – or your ex-wife, that she leaves
      the kids home during the day?
             A. She does.
             Q. Okay. Leaves them to fend for themselves for food?
             A. That’s correct.
             Q. Do you know of anybody that watches them?
             A. No.
             Q. Okay. So they’re a 14-year-old and 12-year-old?
             A. That’s correct. I know for a fact they don’t have any adult
      supervision when she’s not there because I speak with them on the phone
      regularly.
             Q. Okay. So you don’t get a day-care provider or –
             A. No.
             Q. – you know, babysitter or anything like that?

In re Workman                                                                     Page 4
              A. No.
              Q. So do you think that a 14-year-old and a 12-year-old you should
      be left alone all day?
              A. No.
              Q. And at your residence, your house, you have a 17-year-old you
      said?
              A. We do.
              Q. And she stays with them all day?
              A. She does.

      There was testimony that either approximately eight or nine months, or as much

as three years earlier, one of the boys had ridden a bus to another town when he was

nine years old. There was no testimony of any harm having come to the child or of the

father taking any action to seek custody as a result. There was also evidence that the

mother was attending college, completing her bachelor’s degree and working nights

during the time period the boys were in Colorado and that the mother had recently

graduated, had changed jobs, and was no longer working at night. There was some

uncertainty surrounding the new job and its travel requirements but nothing to suggest

an immediate or impending danger to the boys as a result.

      There is no question that the children had not been abandoned in Texas. The

question I am left with then is: What is the evidence that exercise of Temporary

Emergency Jurisdiction is necessary in an emergency in order to protect the child

because the child, or a sibling, is subjected to or threatened with mistreatment or abuse?

Having found no such evidence in the record before me, I would conditionally grant the




In re Workman                                                                       Page 5
writ of mandamus, thus requiring the trial court to dismiss the emergency proceeding

initiated in Texas. Because the Court does not, I respectfully dissent.1




                                                   TOM GRAY
                                                   Chief Justice

Dissenting opinion delivered and filed December 8, 2010




1   Because of my disposition of the first issue, it would be unnecessary to reach the remaining issues.

In re Workman                                                                                          Page 6
