In re Interest of A.A.

670 S.W.3d 520

In the INTEREST OF A.A., G.A., and K.A., Children

No. 21-0998

Supreme Court of Texas.

Argued October 4, 2022

OPINION DELIVERED: June 9, 2023

Brenda L. Kinsler, Austin, Anna Maria Ford, Eric T. Tai, Atty. Gen. W. Kenneth Paxton Jr., Austin, Brent Webster, Houston, William Cole, Judd E. Stone II, Vicki Kozikoujekian, for Respondent.

Michael J. Sharpee, Amarillo, for Petitioner.

Harry R. Ingram, Canyon, for Other interested party A.A., G.A., and K.A.

Larry Adams, Corpus Christi, for Other interested party A., L.

Chief Justice Hecht delivered the opinion of the Court, in which Justice Lehrmann, Justice Boyd, Justice Devine, Justice Bland, and Justice Huddle joined.

By statute, a Texas court "may order termination of the parent-child relationship if ... the parent has ... failed to comply with" a service plan ordered by the court "as a result of the child's removal from the parent ... for the abuse or neglect of the child".¹ Here, Mother challenges termination of her parental rights under this provision, asserting that her children were ordered removed to the Department of Family and Protective Services from Father's home and for his wrongdoing, not hers. But removal is not merely relocation. The court's order ended both parents’ legal custody of the children and transferred them to the Department's statutory conservatorship based on evidence of misconduct by both parents that amounted to abuse and neglect.

In In re E.C.R. , we held that a mother's rights to one child could be terminated due to her abuse and neglect of another child because her conduct toward the one placed the other's health and safety at risk.² By a similar analysis, here we hold that sufficient evidence exists that Mother's misconduct in exposing her children to Father's abuse and neglect was itself abuse and neglect on her part. The evidence before the court when it signed the order of removal and the testimony subsequently presented at trial are sufficient to support the trial court's finding that Mother's acts and omissions, which render her an unfit parent, were easily within the broad statutory definition of "abuse or neglect".

We hold that the trial court's findings that Mother failed to comply with her service plan and that termination of her rights is in her children's best interest are supported by legally sufficient evidence. And we reject Mother's challenges to the trial court's jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.³

We affirm the judgment of the court of appeals.⁴

I

Mother, age 34 at the final termination hearing, first experimented with methamphetamine in high school and became addicted around the age of 20. In her 20s and early 30s, Mother cycled through several periods of sobriety and relapse. During that time, she married Father, and their three girls, A, G, and K, were born. Father also used drugs, and the marital relationship was marked by domestic violence. When K was still an infant, all three girls went to live with their maternal grandmother, Marilyn, and they remained in her care for some seven years. Mother, Father, Marilyn, and the girls all lived in Texico, New Mexico, on the Texas–New Mexico border.

In 2017, Mother and Father were divorced in New Mexico. The stipulated divorce decree gave Father "the sole legal care and physical custody" of the children with Mother's visitation to be as "agreed upon by the parties." Mother testified at trial in this case that she agreed to give custody of the three girls to Father—knowing that he, too, used drugs and could be physically violent—because another child of hers had recently died and she "was trying to cope with that". She "figured [Father] was doing better than [she] was at the time" and so the children "would be better with him".⁵ When pressed about the impact of Father's domestic violence on her decision to give him custody, Mother reasoned:

Well, he had taken anger management classes and he had been in a -- what is it, halfway house kind of -- after he got out of prison and I -- I had seen a noticeable change in his anger so I thought they would be okay. Plus his mother was with him also to help. So ... I figured they would be okay.

After the divorce, Father and the children moved across the border to Amarillo, Texas. The next year, Mother had another child in New Mexico. That child lives with her father. Mother's testimony indicates that because of an open CPS investigation in New Mexico, she is permitted only supervised visits with that child.

The record does not show how much contact Mother had with A, G, and K after they moved to Texas with Father. Mother testified, however, that one September,⁶ G told her that Father had "lost his temper and held her down on the bed and hit her [on] her side." Mother testified that she reported the incident to the police. The incident led to Father's indictment in 2021 for causing intentional bodily injury to a child. The indictment states that the incident occurred on September 21, 2019, shortly before the Department became involved with the family.

Investigator Ashley Francis testified that in October 2019, DFPS received a tip that A, G, and K—then 10, 9, and 7, respectively—were being left alone, unsupervised. When Francis met with Father, he admitted that he had used methamphetamine and marijuana a few days before. DFPS formed a safety plan that required Father's mother, Lanetta, to either keep the girls herself or move into Father's home and supervise all interactions between Father and the girls. The plan lasted only about five months. In early April 2020, Francis stopped by Father's home and found him home with the children, unsupervised. The trial court granted the Department's petition for removal of the children from both parents, and they were immediately moved into a foster home.

In the affidavit supporting removal, Francis alleges that when she contacted Father in October 2019, he did not have contact information for Mother and said that he believed her to be incarcerated. The Department was unable to locate her on its own. In early 2020, Father reported that Mother was in a rehabilitation facility in New Mexico but could not provide any information about it. A few weeks later, he said that Mother was no longer there. Father still could not provide a phone number for Mother but offered to contact her through social media to give her Francis’ contact information.

Francis finally made contact with Mother in February 2020—four months after the Department initiated its investigation. In that phone call, Mother told Francis that she and Father "cannot get along, that there had been domestic violence in their relationship, and that she had concerns regarding his drug use." Francis spoke to Mother again in April after the children were moved into foster care. Francis asked Mother to take a drug test, which was positive for methamphetamine.

Termination proceedings ensued, which we detail below. The trial court ultimately terminated Mother's rights under Section 161.001(b)(1)(O) for failure to comply with her service plan. The court terminated Father's rights too, but he did not appeal.

II

Before turning to the main issue, we address Mother's argument that the trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act to terminate her parental rights. Texas and New Mexico have both adopted the UCCJEA. In Texas, the Act is codified in Chapter 152 of the Family Code.⁷

Under Section 202 of the Act, the court that has made an initial child-custody determination "has exclusive[,] continuing jurisdiction over the determination until" that court declines or loses jurisdiction in accordance with the Act.⁸ Under Section 203, a second court "may not modify a child custody determination made by a court of another state unless" the second court would have original jurisdiction under the Act and:

(1) the initial court determines it no longer has exclusive, continuing jurisdiction under Section 202 or that the state of the second court would be a more convenient forum under Section 207; or

(2) the initial court or the second court determines that the child and the child's parents no longer reside in the state of the initial court.⁹

Both sections authorize a court to exercise emergency temporary jurisdiction over a child within its borders when it is necessary to protect the child. Once a court has done so, that court assumes a duty to communicate with any court that made an initial custody determination involving the child to determine whether the initial court will retain or relinquish jurisdiction.¹⁰ A record must be made of the communication, and the parties must be notified and given access to it.¹¹

In 2017, the Ninth Judicial District Court of Curry County, New Mexico, made an initial child-custody determination under the UCCJEA with respect to A, G, and K when it gave Father sole legal care of the girls in the divorce decree. Prior to the termination trial, the Department filed a motion asking the trial court to confer with the New Mexico district court about jurisdiction. At the April 5, 2021 trial, before testimony commenced, counsel for the Department raised its request to confer orally, and the court responded that it would do so after taking testimony.

The record contains this April 27, 2021 email from the New Mexico court declining jurisdiction:

Judge Graham,

As per our conversation, New Mexico will decline to exercise jurisdiction over this case since the children have resided in Texas for more than the last 6 months, and Texas is a more convenient forum.

Regards,Dave Reeb

The trial court's termination order was signed a week later. It recites findings that the New Mexico court declined to exercise continuing jurisdiction under the UCCJEA and that the courts of Texas have jurisdiction under the Act to modify the child-custody determination with respect to A, G, and K.

Mother acknowledges that the statutory criteria in Section 203 for modifying a...