In the Interest of D.W. and K.W., Children Appeal from 307th District Court of Gregg County (opinion )

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In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-16-00076-CV IN THE INTEREST OF D.W. AND K.W., CHILDREN On Appeal from the 307th District Court Gregg County, Texas Trial Court No. 2015-369-DR Before Morriss, C.J., Moseley and Burgess, JJ. Opinion by Justice Burgess OPINION Mother and Father appeal the trial court’s decision to terminate their parental rights to their children, D.W. and K.W.1 Because we conclude that the trial court was without jurisdiction to enter the order terminating their parental rights, we vacate the trial court’s judgment and dismiss the case. I. Factual and Procedural Background A. The 2011–12 Upshur County Suit Affecting the Parent-Child Relationship (SAPCR) Proceeding In March 2011, the Texas Department of Family and Protective Services (the Department) filed a petition seeking protection of D.W. and K.W. under Chapter 262 of the Texas Family Code, along with a petition seeking termination of the parent-child relationship, in the 115th Judicial District Court of Upshur County, Texas (115th JDC). In March 2012, the 115th JDC entered a final order in the SAPCR. Among other things, the 115th JDC adjudged Father as the sole managing conservator of the children, ordered Mother to pay child support, and dismissed the Department as a party to the suit. Section 155.001 of the Texas Family Code confers jurisdiction “over the parties and subject matter of a suit affecting the parent-child relationship.” In re G.A.J., No. 01-12-00256-CV, 2012 WL 4857925, at *2 (Tex. App.—Houston [1st Dist.] Oct. 11, 2012, no pet.) (mem. op.); see Saavedra v. Schmidt, 96 S.W.3d 533, 540 (Tex. App.—Austin 2002, no pet.). Once a Texas court has acquired continuing, exclusive jurisdiction under Section 155.001, “no other court of this state 1 To protect the identity of the children, we will not include the names of the parties in this opinion. See TEX. R. APP. P. 9.8. 2 has jurisdiction of a suit with regard to [the children] except as provided by [Chapter 155], Section 103.001(b), or Chapter 262.” TEX. FAM. CODE ANN. § 155.001(c) (West Supp. 2016). Accordingly, when the 115th JDC entered the March 2012 final order in the SAPCR, it “acquire[d] continuing, exclusive jurisdiction over the matters . . . in connection with the child[ren] on the rendition of [the] final order.” TEX. FAM. CODE ANN. § 155.001(a) (West Supp. 2016). B. The Gregg County Proceeding On March 2, 2015, the Department filed a petition seeking protection of D.W. and K.W. under Chapter 262 of the Texas Family Code, along with a petition seeking termination of the parent-child relationship, in the 307th Judicial District Court of Gregg County, Texas (307th JDC). While the petition asserted that the 307th JDC had jurisdiction over the matter under Chapter 262, it also recited that the 115th JDC had continuing, exclusive jurisdiction under Section 155.001. On March 2, 2015, the 307th JDC signed an emergency order for protection of the children and set March 10, 2015, as the date of the full adversary hearing. Following that hearing, the 307th JDC entered temporary orders appointing the Department as temporary managing conservator of the children. Subsequently, the 307th JDC also set the final trial on the Department’s petition to terminate Mother and Father’s parental rights to D.W. and K.W. On July 11, 2016, the Department filed a motion that informed the 307th JDC that the 115th JDC had continuing, exclusive jurisdiction. The Department asked the 307th JDC to transfer the 115th JDC’s jurisdiction to itself. Father objected to the Department’s motion, stating that the proper procedure would be to file a motion in the 115th JDC requesting that court to transfer the matter to the 307th JDC. After the 307th JDC heard the motion to transfer and the opposition to 3 the motion, it granted the Department’s motion and entered an August 9, 2016, order purporting to transfer jurisdiction from the 115th JDC to itself. Because the 115th JDC had not entered any order transferring its jurisdiction to the 307th JDC, Father filed a motion to dismiss the case in the 307th JDC for want of jurisdiction on August 19, 2016. The 307th JDC denied Father’s motion to dismiss and set the matter for final hearing. On August 10, 2016, the District Clerk for the 115th JDC transferred its files to the 307th JDC, under Section 155.204(i), which provides, If a transfer order has been signed by a court exercising jurisdiction under Chapter 262, a party may file the transfer order with the clerk of the court of continuing, exclusive jurisdiction. On receipt and without a hearing, the clerk of the court of continuing, exclusive jurisdiction shall transfer the files as provided by this subchapter. TEX. FAM. CODE ANN. § 155.204(i) (West 2014).2 On August 23, 2016, the 307th JDC held the final hearing on the Department’s Chapter 161 petition for termination of parental rights and, on September 23, 2016, entered an order terminating Mother and Father’s parental rights to their children. II. Issue Presented Under Chapter 262, the Department may, under certain circumstances, take emergency possession of children without prior notice and a hearing. TEX. FAM. CODE ANN. § 262.001 (West A letter from Karen Bunn, District Clerk for the 115th JDC, explained that the clerk’s office had received a motion to transfer the case to the 307th JDC, along with a proposed order, on August 9, 2016, but that the order was never signed by the judge of the 115th JDC because “it needed to be sent to the CPS Judge by mail for her signature.” The letter further explained that, even though there was no order from the 115th JDC transferring its continuing, exclusive jurisdiction to the 307th JDC, Bunn decided simply to forward the files on the insistence of the judge of the 307th JDC who stated that “a hearing had already been set” and that “the case had to be transferred that day to Gregg County under the circumstances of this case” and Chapter 262 of the Texas Family Code. 2 4 2014). Even though a different court may have continuing, exclusive jurisdiction under Chapter 155, a suit brought by a governmental entity requesting an order under Chapter 262 “may be filed in a court with jurisdiction to hear the suit in the county in which the child is found.” TEX. FAM. CODE ANN. § 262.002 (West 2014). Chapter 262 authorizes a trial court to enter emergency orders and other temporary orders. TEX. FAM. CODE ANN. §§ 262.102–.103 (West Supp. 2016). Therefore, the 307th JDC had jurisdiction to enter emergency orders and temporary orders regarding D.W. and K.W. However, the 307th JDC went further and entered a final order terminating both parents’parental rights, which is the subject of this appeal. Accordingly, the issue presented in this case is whether the 307th JDC also had jurisdiction to enter the final, parental-rights termination order. Resolution of that issue turns on whether the original SAPCR proceeding in the 115th JDC was properly transferred to the 307th JDC. III. Application This case involves the interaction between Chapters 155 and 262 of the Texas Family Code. When the Department files a suit under Chapter 262 in “a court with jurisdiction to hear the suit in the county in which the child is found,” and the Chapter 262 court is not the court of continuing, exclusive jurisdiction under Chapter 155, the Chapter 262 court may enter emergency orders, hold a full adversary hearing, and enter temporary orders. TEX. FAM. CODE ANN. §§ 262.002, 262.102, 262.202 (West Supp. 2015). However, once the Chapter 262 court issues a temporary order after a full adversary hearing, then the Department “shall request identification of a court of continuing, exclusive jurisdiction as provided by Chapter 155.” TEX. FAM. CODE ANN. § 262.202 (emphasis 5 added). And if the Chapter 262 court determines the identity of a court of continuing, exclusive jurisdiction in response to that request, then under Section 262.203, the Chapter 262 court shall, “[o]n the motion of a party or the court’s own motion, if applicable . . . (1) transfer the suit to the court of continuing, exclusive jurisdiction, if any.” TEX. FAM. CODE ANN. § 262.203 (West Supp. 2016) (emphasis added). Upon transfer of the Chapter 262 suit to the court of continuing, exclusive jurisdiction, the court of continuing, exclusive jurisdiction shall then proceed to hear the remainder of the suit and enter the final orders under the provisions of Chapter 155. See id. Thus, as to emergency and temporary orders, the Chapter 262 court shares jurisdiction with the Chapter 155 court of continuing, exclusive jurisdiction, but not as to final orders. In order for the Chapter 262 court to acquire jurisdiction to enter a final order, the original case in the court of continuing, exclusive jurisdiction must be transferred to the Chapter 262 court. The transfer of cases from courts of continuing, exclusive jurisdiction is governed by Chapter 155, subchapter C. See TEX. FAM. CODE ANN. §§ 155.201–.207 (West 2014 & Supp. 2016) (entitled “Transfer of Continuing, Exclusive Jurisdiction”). Those provisions hold that the court of continuing, exclusive jurisdiction shall decide all motions to transfer, not the court to which the transfer will be made. Cf. TEX. FAM. CODE ANN. § 155.201(a) (West 2015) (“On the filing of a motion . . . requesting a transfer . . . the court having continuing, exclusive jurisdiction of a suit affecting the parent-child relationship shall . . . transfer the proceedings . . .”); TEX. FAM. CODE ANN. § 155.206(a) (West 2015) (“A court to which a transfer is made becomes the court of continuing, exclusive jurisdiction and all proceedings in the suit are continued as if it were brought there originally.”). 6 However, Chapter 262 creates a limited exception to the rule that the court of continuing, exclusive jurisdiction decides all transfer motions. Namely, where the Chapter 262 court (1) enters a temporary order after a full adversary hearing, (2) determines the identity of a court of continuing, exclusive jurisdiction under Section 262.202, and (3) further determines that “grounds exist for mandatory transfer from the court of continuing, exclusive jurisdiction under Section 155.201,” then the Chapter 262 court shall order transfer of the suit from that court of continuing, exclusive jurisdiction. TEX. FAM. CODE ANN. § 262.203(a)(2). When the Chapter 262 court enters a transfer order under Section 262.203(a)(2), then “a party may file the transfer order with the clerk of the court of continuing, exclusive jurisdiction” and “[o]n receipt and without a hearing, the clerk of the court of continuing, exclusive jurisdiction shall transfer the files” to the Chapter 262 court. TEX. FAM. CODE ANN. § 155.204(i). Other than this narrow exception, the court of continuing, exclusive jurisdiction decides whether to transfer the case to another court, not the Chapter 262 court. The Department relies on the 307th JDC’s August 9, 2016, order purporting to transfer jurisdiction to itself. However, the record does not reflect that grounds existed for a mandatory transfer from the 115th JDC under Chapter 155. In the absence of evidence supporting mandatory transfer, the 307th JDC had no authority to transfer the original SAPCR case from the 115th JDC to the 307th JDC. Only the 115th JDC had the authority to make such a transfer on this record. It is undisputed that, as of the date the trial court entered its order terminating parental rights, the 115th JDC had not entered any order transferring its continuing, exclusive jurisdiction to the 307th 7 JDC.3 Accordingly, the 307th JDC never acquired jurisdiction to enter the final termination order in this case. IV. Conclusion “[T]he continuing, exclusive jurisdiction statutory scheme is ‘truly jurisdictional’—that is, when one court has continuing and exclusive jurisdiction over a matter, any order or judgment issued by another court pertaining to the same matter is void.” In re C.G., 495 S.W.3d 40, 44–45 (Tex. App.—Corpus Christi 2016, pet. denied) (citing Celestine v. Dep’t of Family & Protective Servs., 321 S.W.3d 222, 229–30 (Tex. App.—Houston [1st Dist.] 2010, no pet.); In re Aguilera, 37 S.W.3d 43, 48–53 (Tex. App.—El Paso 2000, no pet.) (orig. proceeding)). We conclude that the 307th JDC’s order terminating Mother’s and Father’s parental rights to their children was void because the 115th JDC had continuing, exclusive jurisdiction at the time the order was entered. Accordingly, we vacate the trial court’s judgment and dismiss the case. See TEX. R. APP. P. 43.2(e). Ralph K. Burgess Justice Date Submitted: Date Decided: February 2, 2017 February 8, 2017 3 It was not until October 3, 2016, that the judge of the 115th JDC signed an order transferring its continuing, exclusive jurisdiction to the 307th JDC. Actions taken in the absence of subject-matter jurisdiction are “void, that is, ‘entirely null within itself and which is not susceptible of ratification[,] confirmation,’ or waiver.” In re B.F.B., 241 S.W.3d 643, 646 (Tex. App.—Texarkana 2007, no pet.) (quoting Easterline v. Bean, 49 S.W.2d 427, 429 (Tex. 1932)). 8

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