In the Interest of William D. Roberts, A Child--Appeal from 131st Judicial District Court of Bexar County

No. 04-00-00444-CV
IN THE INTEREST OF William D. ROBERTS
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 1999-PA-00259
Honorable David Berchelmann, Judge Presiding (1)

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: September 26, 2001

AFFIRMED

Appellant Gary Bruce Roberts brings this appeal challenging the trial court's jurisdiction to order his minor son, William, placed in the custody of the Texas Department of Protective and Regulatory Services (TDPRS). Because the trial court properly exercised its jurisdiction, we affirm.

Background

On February 2, 1998, William's mother, Anne Marie Roberts, moved William and her other children from California to Texas. Anne and Gary were married at the time and no divorce or custody proceedings were pending. Shortly after Anne left California, Gary filed a petition for divorce in Los Angeles county court. Approximately two weeks later, Anne filed for custody of the children in Bexar County, Texas. (2)

In June 1998, TDPRS received its first referral for abuse and neglect of William and his siblings. Over the next several months, William was hospitalized seven times for psychiatric treatment. He was hostile, abusive toward his mother and siblings, and severely depressed. In March 1999, TDPRS filed suit to take physical custody of William from both Anne and Gary in order to place William in a treatment facility where he could be monitored more closely. (3) Temporary court orders were issued, placing William in the custody of the State and in a residential treatment center.

On December 20, 1999, in violation of the trial court's order, Gary removed William from the treatment center, fleeing with him to California. A warrant issued to retrieve William. In January 2000, Gary alleged, for the first time, the California divorce action required the custody suit in Texas either be transferred to California or abated for consultation between the Texas and California courts. The trial court overruled Gary's motions and ordered William placed permanently in State custody, with limited visitation by both parents. The court continues to monitor William's progress with the hope of one day restoring him to his family.

In three issues, Gary challenges the trial court's jurisdiction. He contends: (1) the trial court erred in not transferring or abating the case because there was evidence of a prior custody proceeding pending in California; (2) the trial court erred in finding no other court had jurisdiction of the suit and there were no pleadings or orders filed in other states regarding the custody of the child; and (3) the trial court erred in finding Texas is the home state of the child. The State contends this court may not review the issues on the merits because Gary did not bring forward a complete reporter's record. (4)

Discussion

1) Lack of Reporter's Record

The State contends we may not consider the merits of Gary's appeal because a complete reporter's record was not filed and Gary did not designate the issues to be reviewed in accordance with Tex. R. App. P. 34.6(c). Gary responded there is no reporter's record of

the hearing on April 7, 2000 when the final order was entered. The State argues we must presume evidence in the missing portion of the record supports the trial court's decision. We disagree.

The Family Code requires the trial court to make a reporter's record of all hearings involving the parent-child relationship unless the making of a record is waived. Tex. Fam. Code Ann. 105.003 (Vernon 1996); Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985). The trial court has the responsibility to see that a record is made of the entire proceeding, including all oral testimony. See Walker v. Stefanic, 898 S.W.2d 347, 349 (Tex. App.-San Antonio 1995, no writ); Ramirez v. Sanchez, 871 S.W.2d 534, 535 (Tex. App.-San Antonio 1994, no writ). There is no evidence of waiver in the record; therefore, we make no presumption about the evidence presented at the hearing. See Walker, 898 S.W.2d at 349;Ramirez, 871 S.W.2d at 535-36.

However, Gary states in his brief that no evidence was presented at the April 7 hearing because the attorneys merely consulted about the language to be included in the court's order. We accept Gary's statement as a judicial admission that the missing portion of the record contains no relevant evidence or information. See Jansen v. Fitzpatrick, 14 S.W.3d 426, 431 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Accordingly, there can be no error stemming from the lack of record, and we may consider Gary's appeal based solely on the evidence in the record before this court.

2) Jurisdiction under the Texas Family Code

Texas has adopted a version of the Uniform Child Custody Jurisdiction Act (TUCCJA). See Tex. Fam. Code Ann. 152.001, et seq. (Vernon 1996 & Supp. 2001).The jurisdictional provisions of the TUCCJA apply to parental termination cases. In re Lambert, 993 S.W.2d 123, 128 (Tex. App.-San Antonio 1999, no pet.) (citing Arteaga v. Tex. Dep't of Protective & Regulatory Servs., 924 S.W.2d 756, 760 (Tex. App.-Austin 1996, writ denied)); White v. Blake, 859 S.W.2d 551, 561-62 (Tex. App.-Tyler 1993, orig. proceeding). The TUCCJA contains several provisions by which a trial court may obtain jurisdiction over a child for purposes of modifying or terminating the parent-child relationship. See Tex. Fam. Code Ann. 152.003 (Vernon 1996). (5) The court may exercise jurisdiction when the court is located in the child's home state or when the forum state has a significant connection to the child. Tex. Fam. Code Ann. 152.003(a)(1)-(2). The court may also act in case of emergency "to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or there is a serious and immediate question concerning the welfare of the child." Tex. Fam. Code Ann. 152.003(3)(B). However, Tex. Fam. Code Ann. 152.006(a) states:

A court of this state may not exercise its jurisdiction under [chapter 152] if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this chapter, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

The Family Code provides that Texas is a child's home state if the child has resided in the state for at least six months prior to the filing of the petition affecting the parent-child relationship. The evidence is clear that William had resided in Texas for over a year when the TDPRS suit was filed. Therefore, Texas was William's home state for purposes of the termination proceeding. Tex. Fam. Code Ann. 152.002(6), 152.003(a)(1). We overrule Gary's third issue.

We next consider whether the trial court should have declined jurisdiction or consulted with the California court in accordance with section 152.006(a). The trial court's first objective was to determine if "the California court was exercising jurisdictionsubstantially in conformity with Chapter 152 of the Texas Family Code." Interest of E.K.N., 24 S.W.3d at 591.

The record contains only two documents related to the California lawsuit. The first is a copy of a form entitled Summons-Family Law which states only that the respondent, Anne Marie Roberts, is being sued and has thirty days to answer. The form does not refer to the children or indicate that Gary is seeking custody. The second document appears to be a form default judgment taken in the same case. This form does not state what relief was granted and makes no reference to the children or custody. Nothing in the record indicates Anne was properly served in the California court (6) or that Gary sought custody of the children in connection with the divorce. Given the lack of any evidence regarding custody in the California suit, the trial court could have determined the California trial court never exercised its jurisdiction over William in a manner substantially in conformity with the TUCCJA. (7) The trial court did not err in asserting jurisdiction and had no duty to consult with the California court prior to issuing its orders. See Interest of E.K.N., 24 S.W.3d at 591-92. We overrule issues one and two.

Conclusion

We hold the trial court properly determined Texas was William's home state at the time the termination suit was filed. Further, the evidence supports the trial court's conclusion that California was not exercising jurisdiction over William in substantial conformity with

the TUCCJA. The judgment of the trial court is affirmed. Costs of the appeal are taxed against the appellant.

Paul W. Green, Justice

DO NOT PUBLISH

1. The Honorable John Specia presided over the termination hearing.

2. It is not clear whether Anne also filed for divorce at the same time.

3. TDPRS brought suit pursuant to sections 102.003(5) and 262.001, et seq., of the Texas Family Code, which provide procedures by which the State can take physical custody of a child in the interest of the child.

4. The State also argues we lack jurisdiction because Gary's notice of appeal was filed one day late without a motion for extension of time. Although the notice is file-stamped in this Court one day after the deadline, the postmark on the envelope clearly indicates the notice of appeal was mailed on the deadline date. Under Tex. R. App. P. 9.2(b), the notice of appeal was timely filed.

5. Act of April 6, 1995, 74th Leg., R.S., ch.20, 1, sec. 152.006, 1995 Tex. Gen. Laws 113, 142-43 (amended and recodified 1999) (current version at Tex. Fam. Code. Ann. 152.206, 152.307 (Vernon Supp. 2001). Because the suit in question was filed prior to September 1, 1999, we follow the version of the TUCCJA in effect at that time and cite to the appropriate Family Code sections as they existed before the 1999 amendments. See Interest of E.K.N., 24 S.W.3d 586, 591 n.1 (Tex. App.-Fort Worth 2000, no pet.).

6. Anne's affidavit in the clerk's record states she was never served in the California suit. Anne also testified at the hearing that she was never served in the California suit and only received a letter regarding that proceeding in June or July of 1999, after the termination suit was filed. Gary did not appear at the hearing; therefore, there is no evidence controverting Anne's testimony. Lack of proper service would nullify any action by the California court, another reason the trial court could have determined the California court was not exercising jurisdiction in conformity with the TUCCJA. See Koester v. Montgomery, 886 S.W.2d 432, 435 (Tex. App.-Houston [1st Dist.] 1994, no writ). This conclusion is not in conflict with the court's recognition of an unresolved SAPCR in the California court.

7. Further, we note at least one court has held the California version of the UCCJA is not substantially similar to the Texas version in effect prior to September 1, 1999. Therefore, because Texas was the home state at the time the termination proceeding was filed, the California court could not have exercised jurisdiction in substantial conformity with chapter 152. See Interest of E.K.N., 24 S.W.3d at 591-92.