


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-05-00123-CV
 
In the
Interest of
A.M.W.
and A.H.W., minor Children
 
 

From the 19th District Court
McLennan County, Texas
Trial Court No. 2003-2553-1
 

DISSENTING Opinion





 
          Delays, interminable delays!  I
dissent to the referral of this proceeding to mediation.
          In my original dissenting opinion, I
wrote:  “I could spend many more days on this case, but because there will
undoubtedly be further proceedings, and the childhood of these children is
quickly passing – I will hand this case off, with my dissent, to the next
court, hopefully a court with more resources to properly address all the issues
necessary to a proper disposition of this appeal.”  In the Interest of A.M.W.,
No. 10-05-00123-CV, 2006 Tex. App. LEXIS 1504, *49 (Tex. App.—Waco Feb. 22,
2006, no pet. h.) (Gray, C.J., dissenting).  I had no idea that this Court
would be the source of further delays of this magnitude.
          We handed down our opinions February
22, 2006.  The majority reversed and remanded the termination of Barbara’s
parental rights to these two children.  In the Interest of A.M.W., No.
10-05-00123-CV, 2006 Tex. App. LEXIS 1504 (Tex. App.—Waco Feb. 22, 2006, no
pet. h.).  They held there was legally sufficient but not factually sufficient
evidence to support the termination.  Id.  I dissented and addressed the
majority’s improper application of the standard of review in cases involving
the termination of parental rights.  Id. at *39-51.  
On March 9, 2006 the State filed a motion for
rehearing.  But rather than timely rule on the pending motion for rehearing,
the majority has decided to further delay this case by referring it to
mediation!  Our plenary power would have expired by now if the motion for
rehearing had not been filed.
Every reader of this dissenting opinion should
ask why would an appellate court refer a matter to mediation after it has
issued an opinion and judgment reversing and remanding the case, and what are
the chances for a successful mediation?  I believe the answer is that the majority
is relying on entirely inappropriate information as the basis for its order.
The draft order referring this matter to
mediation came to me with a notation, among other statements:  “This is the
case in which an adoption went forward in spite of the lack of a final judgment
of termination.”  The issue regarding the adoption is not part of our record on
appeal and its source of origin as the basis for this referral is unknown.  So
based on events outside the record, a majority of this Court is taking action
in this case that, in my estimation, has little chance for success.  And
because this Court does not have the authority to make the adoptive parents
parties, and because they are not parties, the mediator is given “the
discretion to allow the attendance and participation of other interested
persons who have a direct interest in the outcome of this dispute and their
counsel.”  The ad litem for the children, who are not parties to this appeal
and are not represented in this appeal by counsel, has been ordered to “attend
and be present during the entire mediation process.”  
There is no end to how much time this detour can
take.  The mediation is ordered to occur within 45 days, but there is no deadline
specified for the filing of the mediator’s report.  And I will not get into the
extent of my disagreement with the direct appointment of the mediator without
the opportunity for the parties to agree upon one.  In re Echols, No.
10-06-00039-CV, 2006 Tex. App. LEXIS 1893, *4-5 (Tex. App.—Waco March 8, 2006,
order) (Gray, C.J., dissenting).
All-in-all, the basis for this referral appears
improper and the purpose appears to be to try to avoid another reversal, or at
the very least, deprivation of the opportunity for the Supreme Court to clarify
the standard of review.  If the State does not withdraw its motion for
rehearing so as to at least put an end to that aspect of this delay, I would
request a response to the motion for rehearing so that the time period to file
a response expires before the date by which the mediation must occur.  In that
manner, at least the mediator will be working with the issues-on-rehearing
fully briefed, and waiting for a response cannot then be a further cause of
delay before the termination of the parental rights of Barbara is fully resolved.
The majority’s order is ill conceived, poorly
thought out, and will be difficult for others to implement.  It is a testament
to a failure in the system.  I dissent to the referral to mediation, and would
summarily deny the motion for rehearing so that this matter may immediately
proceed to the Texas Supreme Court for further review.
 
                                                          TOM
GRAY
                                                          Chief
Justice
 
Dissenting
opinion delivered and filed May 17, 2006
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span>On April 21, 1999, Michelle filed a motion to transfer the custody portion of the dispute to Florida
because it would be a more convenient forum.  According to Hattenbach’s mandamus petition, Michelle
filed a custody proceeding in Florida the next day.  On May 7, Respondent heard both parties’ motions
to transfer.  
      Respondent entered an order on May 27 dismissing the custody portion of the proceedings.  The
order states in pertinent part:
The Court finds that it has the authority under Section 152.007 of the Texas Family Code
to modify the Decree as to custody or may decline to exercise its jurisdiction any time before
making a decree if it finds that it is an inconvenient forum to make a custody determination
under the circumstances of the case and that a court of another state is a more appropriate
forum.  The Court specifically finds that the State of Florida has a closer connection with the
children and the children’s environment and has significant evidence concerning their present
care, protection and personal relationship and therefore this Court declines to exercise its
jurisdiction and ORDERS that the Motion to Modify Custody heretofore filed by JOHN W.
HATTENBACH on December 14, 1998, is hereby dismissed.

The court entered an order on June 15 transferring the support portion of the dispute to Aransas
County.

      Hattenbach can obtain mandamus relief only upon showing that the trial court committed a clear
abuse of discretion and that he has no adequate legal remedy.  Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding).  To demonstrate a clear abuse of discretion, Hattenbach must show “that
the trial court could reasonably have reached only one decision.”  Id. at 840.  Even if we would have
decided the matter differently, we “cannot disturb the trial court’s decision unless it is shown to be
arbitrary and unreasonable.”  Id.
      The Uniform Child Custody Jurisdiction Act (the “UCCJA”) and the Uniform Interstate Family
Support Act (the “UIFSA”) govern this case.  Both Texas and Florida have adopted these uniform acts.

      Both states’ versions of the UCCJA provide that a court with jurisdiction to decide a custody case
“may decline to exercise its jurisdiction any time before making a decree if it finds that it is an
inconvenient forum to make a custody determination under the circumstances of the case and that a court
of another state is a more appropriate forum.”  Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec.
152.007(a), 1995 Tex. Gen. Laws 113, 143, amended by Uniform Child Custody Jurisdiction and
Enforcement Act, 76th Leg., R.S., ch. 34, 1999 Tex. Sess. Law Serv. 52 (Vernon); Fla. Stat. Ann.
§ 61.1316(1) (West 1997).  Both also provide that “[i]f the court finds that it is an inconvenient forum
and that a court of another state is a more appropriate forum, it may dismiss the proceedings.”  Act of
April 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 152.007(e), 1995 Tex. Gen. Laws 113, 143 (amended
1999); Fla. Stat. Ann. § 61.1316(5) (West 1997).
      Section 152.007(c) of the Texas UCCJA requires the court to “consider whether it is in the best
interest of the child[ren] that another state assume jurisdiction” when deciding whether the other state
is a more appropriate forum.
 Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, sec. 152.007(c), 1995
Tex. Gen. Laws 113, 143 (amended 1999).  Respondent could have considered the fact that the children
reside in Florida with Michelle as a relevant factor for  determining whether it would be in the children’s
best interest for a Florida court to decide the custody matter.  Therefore, we cannot say that Respondent
“could reasonably have reached only one decision” in deciding that Florida is the more appropriate
forum for this custody proceeding.  Walker, 827 S.W.2d at 840.
      Both the Texas and Florida versions of the UIFSA provide that a court which issues a child support
order retains continuing, exclusive jurisdiction over that order “as long as this state remains the
residence of the obligor, the individual obligee, or the child for whose benefit the support order is
issued.”  Tex. Fam. Code Ann. § 159.205(a)(1) (Vernon Supp. 1999); Fla. Stat. Ann. §
88.2051(1)(a) (West Supp. 1998).  The only exception occurs when all parties file written consent for
the court of another state to exercise jurisdiction.  Tex. Fam. Code Ann. § 159.205(a)(2) (Vernon
Supp. 1999); Fla. Stat. Ann. § 88.2051(1)(b) (West Supp. 1998).  Section 155.301(a) of the Texas
Family Code requires a court to transfer a support proceeding to the county of residence of the party
who is a Texas resident if all other parties reside outside of Texas.  Tex. Fam. Code Ann. § 155.301(a)
(Vernon 1996).
      Under section 159.205(a) of the UIFSA, Respondent had no discretion but to retain the support
portion of the proceedings in Texas because the parties did not agree otherwise.  See Tex. Fam. Code
Ann. § 159.205(a); Fla. Stat. Ann. § 88.2051(1).  Under section 155.301(a) of the Family Code, she
had no discretion but to transfer the support portion of the proceedings to Aransas County because that
is the county of residence of the only Texas resident who is a party to the proceedings.  See Tex. Fam.
Code Ann. § 155.301(a).
      By adopting these uniform acts, the legislature has created an unsatisfactory situation in which a suit
affecting a parent-child relationship is severed into parallel proceedings in different states.  However,
any remedy for this awkward result must come from the legislature, not the courts.  As the Supreme
Court has reiterated “many times”:
Courts must take statutes as they find them.  More than that, they should be willing to take
them as they find them.  They should search out carefully the intendment of a statute, giving
full effect to all of its terms.  But they must find its intent in its language and not elsewhere. 
 .   .   .

RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985) (quoting Simmons v.
Arnim, 110 Tex. 309, 324, 220 SW. 66, 70 (1920)); accord St. Luke’s Episcopal Hosp. v. Agbor, 952
S.W.2d 503, 505 (Tex. 1997).  
      Hattenbach has failed to show that Respondent “could reasonably have reached only one decision.” 
Walker, 827 S.W.2d at 840.  Thus, no clear abuse of discretion is shown.  See id.  Accordingly, we
deny his petition for mandamus relief.
 
                                                                        REX D. DAVIS
                                                                         Chief Justice
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Petition denied
Opinion issued and filed September 22, 1999
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