
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.
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
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
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
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
1. The rights of the child's mother Kimberly Kay Beats were also terminated, but she has not filed an
appeal. 
2. Stating that:  "[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 Ann. §152.204(a) (Vernon 2002).
3. The statute reads:

	If there is no previous child custody determination that is entitled to be enforced under this
chapter and a child custody proceeding has not been commenced in a court of a state having
jurisdiction under Sections 152.201 through 152.203, a child custody determination made 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 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. 

Tex. Fam. Code Ann. §152.204(b) (Vernon 2002).
4. Admittedly, the definition of "home state" contains a residency requirement for a particular period
before suit is commenced.  See Tex. Fam. Code Ann.§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
"immediately before the commencement of a child custody proceeding").  However, §152.204 permits a
custody determination rendered via the emergency jurisdiction of a trial court to become final if, among other
things, the child's home state becomes Texas once the order is entered.  Considering the two together and
affording each the authority implicit in their words, we cannot but conclude that the concept of "home state"
differs when jurisdiction is invoked under §152.204(a) and omits the requirement that the six months of
residence occur before the proceeding is commenced.  If this were not so, then there could be no home state
for purposes of finalizing orders rendered via emergency jurisdiction since the proceeding began before the
child had resided with a parent or parent surrogate in Texas for six months.  See First American Title Ins. Co.
v. Strayhorn, 169  S.W.3d 298, 304 (Tex. App.-Austin 2005, pet. denied) (requiring us to interpret facially
contradictory statutes in a way that upholds both).    


omment was objectionable, we note that the decision to object
to particular statements uttered during closing argument is frequently a matter of legitimate
trial strategy.  Hubbard v. State, 770 S.W.2d 31, 45 (Tex. App.-Dallas 1989, writ ref'd). 
Thus, evidence of counsel's strategy, if any, is crucial to determining whether he was
ineffective.  Furthermore, nothing of record indicates why counsel at bar withheld
objection.  Without such an explanation, we cannot say that the record before us
sufficiently rebuts the strong presumption that counsel exercised reasonable professional
judgment.  Thompson v. State, 9 S.W.3d at 808; Beck v. State, supra.   
	Second, and again assuming the comment was objectionable, nowhere does
appellant attempt to illustrate "there [was] a reasonable probability that, but for counsel's
[one supposed] unprofessional error[], the result of the proceeding would have been
different."  Tong v. State, 25 S.W.3d at 712.  Nor, after reviewing the entire record, can we
say that such a probability existed.
	Accordingly, we affirm the judgment of the trial court.

									Per Curiam



Publish.
1. Given that appellant was granted deferred adjudication, the supposed conviction was not one.  That
is, because he had been granted deferred adjudication, he had not been convicted of the offense.  So, the
characterization of the charge as a "prior conviction" was inaccurate.  However, we use that moniker here
for the sake to clarity. 
2. The rule states that "for purposes of attacking the credibility of a witness," a litigant may tender
evidence that the witness had been "convicted of a crime . . . if elicited from the witness or established by
public record but only if the crime was a felony or involved moral turpitude . . . ."  Tex. R. Evid. 609(a). 
3. The phrase "vulnerable relationship" was coined in Carroll v. State, 916 S.W.2d 494 (Tex. Crim.
App. 1996) and describes a circumstance wherein the witness may be prone to color testimony in favor of
the State in return for leniency viz a pending criminal prosecution.  Moreover, if such a circumstance exists,
evidence of same is admissible even though it does not involve a final conviction.  Maxwell v. State, 48
S.W.3d 196, 199-200 (Tex. Crim. App. 2001).  Finally, as noted in Maxwell and Moreno v. State, 22 S.W.3d
482 (Tex. Crim. App. 1999), evidence that would not be admissible under Rule 609 because the conviction
was neither final, a felony, nor one of moral turpitude could be admissible if it illustrated the requisite
vulnerable relationship.  Given this, it is incumbent upon one attempting to gain the admission of evidence
inadmissible under Rule 609 to invoke the vulnerable relationship theory in a manner reasonably informing
the trial court of his reliance upon that theory.  
