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2017 Case Law UpdateI.accordance with procedures provided by Chapter 155: (1)transfer the suit to the court of continuing, exclusivejurisdiction, if any.” The Appellate Court observed thatthe affidavit attached to the Department’s original petitionstated, “The [c]ourt records reflect that the children havelived their lives in Gregg County, Texas, and each hasbeen the subject of a suit affecting the parent-childrelationship in Texas.” In addition, the AttorneyGeneral’s Answer specifically informed the CCL that theDistrict Court had entered the 2010 order determiningparentage. Further, the District Court’s 2010 order wasadmitted as an exhibit at trial. The Court determined thatthe affidavit filed in support of the Department’s petition,the Attorney General’s Answer, and the District Court’s2010 order “all put the CCL on notice that the DistrictCourt has continuing, exclusive jurisdiction over thematter involving [the child].”JurisdictionA.Judgment Void When Court LacksJurisdictionIn 2010, the 307th Judicial District Court of GreggCounty, Texas (“District Court”) entered an order thatestablished parentage and determined conservatorshipissues with regard to the child. In 2015, the Departmentfiled a petition in the County Court at Law No. 2 of GreggCounty (“the CCL”) under Chapter 262, which requestedconservatorship of the child and sought to terminateMother’s and Father’s parental rights. Mother’s rightswere terminated.Mother appealed the judgment entered by the CCLterminating her parental rights to the child. Afterconcluding the CCL was without jurisdiction to enter theorder, the Court of Appeals vacated the judgment anddismissed the case.The Court concluded that because the District Courtretained continuing, exclusive jurisdiction of the matterinvolving the child, Section 262.203 required the CCL totransfer the suit to the District Court on “the court’s ownmotion.” As such, the CCL lacked jurisdiction to enterthe order terminating parental rights to the child. TheCourt held that “[t]he continuing, exclusive jurisdictionstatutory scheme is ‘truly jurisdictional’—that is, whenone court has continuing and exclusive jurisdiction over amatter, any order or judgment issued by another courtpertaining to the same matter is void.” Accordingly, theCourt concluded that the CCL’s order terminatingMother’s and Father’s parental rights was void becausethe district court had continuing, exclusive jurisdiction atthe time the order was entered. In re J.I.M., 516 S.W.3d674 (Tex. App.—Texarkana 2017, no pet.).Citing to TFC § 155.001, the Court observed that theDistrict Court “acquire[d] continuing, exclusivejurisdiction over the matters . . . in connection with thechild” in 2010 when it entered a judgment regarding thechild. TFC § 155.001(a) provides “Except as otherwiseprovided by this section, a court acquires continuing,exclusive jurisdiction over the matters provided for bythis title in connection with a child on the rendition of afinal order.”The Court then noted that a suit brought by agovernmental entity requesting an order under Chapter262 “may be filed in a court with jurisdiction to hear thesuit in the county in which the child is found” even thoughanother court may have continuing, exclusive jurisdictionunder Chapter 155.B.Transfer of Continuing, ExclusiveJurisdictionOn appeal, Mother and Father asserted that the trial courtlacked jurisdiction to enter a final order of terminationbecause another court retained continuing, exclusivejurisdiction. The 115th District Court of Upshur Countyacquired continuing, exclusive jurisdiction over suitsaffecting the parent-child relationship concerning thechildren by virtue of a 2012 final SAPCR order in aDepartment case. In March 2015, the Department filed apetition under TFC chapter 262 seeking protection of thechildren and termination of parental rights in the 307thDistrict Court of Gregg County. The trial court alsorendered temporary orders appointing the Departmenttemporary managing conservator of the children. In JulyReferencing TFC § 262.201, which provides that theresult of a full adversary hearing is “an appropriatetemporary order under Chapter 105”, the Court reasonedthat while the CCL properly entered emergencytemporary orders under its Chapter 262 authority, Chapter262 did not authorize the entry of a final order in a suitaffecting the parent-child relationship in this case.Rather, Section 262.203 required the CCL to “transfer thesuit to the court of continuing, exclusive jurisdiction, ifany.” Section 262.203 provides, in pertinent part, “On themotion of a party or the court’s own motion, if applicable,the court that rendered the temporary order shall in1

2017 Case Law UpdateSAPCR proceeding in the 115th District Court wasproperly transferred to the trial court.2016, the Department filed a motion to transfer underTFC § 262.203 informing the trial court that the 115thDistrict Court had continuing, exclusive jurisdiction, andmoved to transfer the suit and jurisdiction to the DistrictCourt, alleging grounds for mandatory transfer, namelythat the children had resided in the trial court’s county forsix months or longer.The Court of Appeals recognized, “Chapter 262 creates alimited exception to the rule that the court of continuing,exclusive jurisdiction decides all transfer motions.Namely, where the Chapter 262 court (1) enters atemporary order after a full adversary hearing, (2)determines the identity of a court of continuing, exclusivejurisdiction under Section 262.202, and (3) furtherdetermines that ‘grounds exist for mandatory transferfrom the court of continuing, exclusive jurisdiction underSection 155.201,’ then the Chapter 262 court shall ordertransfer of the suit from that court of continuing, exclusivejurisdiction.” TFC § 262.203(a)(2). In a footnote, theCourt of Appeals explained that under the plain languageof TFC § 262.203(a) and Chapter 155, “Section262.203(a)(2) applies even if no active case is pending inthe court of continuing, exclusive jurisdiction” because“under subsection (2), the suit that is being transferred tothe Chapter 262 court is the Chapter 262 suit itself” and“Section 262.203(a)(2) merely creates another limitedinstance in which mandatory transfer from the court ofcontinuing, exclusive jurisdiction under Section155.201(b) can occur.”TFC § 262.203(a) and (b) provide:(a) On motion of a party or the court’s ownmotion, if applicable, the court that renderedthe temporary order shall in accordance withprocedures provided by Chapter 155:(1)transfer the suit to the court ofcontinuing, exclusive jurisdiction, ifany;(2)if grounds exist for mandatory transferfrom the court of continuing,exclusive jurisdiction under Section155.201, order the transfer of the suitfrom that court; or(3)if grounds exist for transfer based onimproper venue, order transfer of thesuit to the court having venue of thesuit under Chapter 103.The Department argued that the trial court’s August 2016transfer order granting the Department’s timely motionalleging grounds for mandatory transfer under Chapter155 properly transferred jurisdiction because Mother andFather failed to file controverting affidavits, therebyimposing a mandatory duty on the trial court to transferthe proceeding to itself and become the court ofcontinuing, exclusive jurisdiction.(b) Notwithstanding Section 155.204, a motionto transfer relating to a suit filed under thischapter may be filed separately from thepetition and is timely if filed while the case ispending.The Court of Appeals agreed.155.204(c), which provides:Under TFC § 155.201(b), grounds for mandatory transferfrom the court of continuing, exclusive jurisdiction toanother county exist “if the child has resided in the othercounty for six months or longer.”It relied on TFC §If a timely motion to transfer hasbeen filed and no controvertingaffidavit is filed within theperiod allowed for its filing, theproceeding shall, not later thanthe 21st day after the final date ofthe period allowed for the filingof a controverting affidavit, betransferred without a hearing tothe proper court.The trial court granted the Department’s motion andordered jurisdiction transferred from the 115th DistrictCourt to itself under TFC § 262.203(a)(2). The followingmonth, the trial court held the final hearing and terminatedMother’s and Father’s parental rights.The issue on appeal was whether the trial court hadjurisdiction to enter a final order terminating parentalrights—the answer depended on whether the originalThe Court of Appeals followed established case law underthis statute holding that where a party files a motion formandatory transfer under TFC § 155.201(b) and the other2

2017 Case Law Update2011. The trial court’s findings of fact includedstatements that the address and telephone numberprovided for Father had “adequate connection” to Fatherand that the Department made “reasonable attempts” tolocate Father prior to publication. In January 2016, Fatherfiled a bill of review, contending that he was notpersonally served and was unaware that a courtproceeding concerning his parental rights was pending.party fails to file a controverting affidavit, the trial courthas a mandatory duty to transfer the case to the countywhere the child has resided for six months or longer.Thus, it held, “[b]ecause the Department filed a motion totransfer and because Mother and Father did not filecontroverting affidavits, ‘grounds exist[ed] for mandatorytransfer from the court of continuing, exclusivejurisdiction under Section 155.201.’[TFC §262.203(a)(2)]. Accordingly, the trial court properlytransferred the suit to itself and acquired jurisdiction toenter final orders.”TRCP 109 provides that in order to issue citation bypublication a party to a suit shall make an oath (1) that theresidence of the defendant is unknown to the affiant; or(2) that such defendant is a transient person, and that afterdue diligence, such party and the affiant have been unableto locate the whereabouts of such defendant; or (3) thatsuch defendant is absent from or is a nonresident of theState, and the party applying for citation has attempted toobtain person service of nonresident as provided in Rule108, but has been unable to do so. A trial court mustinquire into the sufficiency of the diligence exercised inattempting to ascertain the residence or whereabouts ofthe defendant or to obtain service of nonresident noticebefore granting any judgment on such service.After also rejecting Mother’s challenge to the factualsufficiency of the evidence to support the trial court’s bestinterest finding, the Court of Appeals affirmed the orderterminating Mother’s and Father’s parental rights. In reD.W. and K.W., S.W.3d , No. 06-16-00076-CV(Tex. App.—Texarkana Mar. 31, 2017, pet. filed) (op. onreh’g.)C.Diligence Required for Service byPublicationFather and Mother were married in 2007 and lived inCalifornia. Mother left in 2009 and gave birth to the childin Texas in 2010. The child was removed from Mother atbirth due to a positive drug test. Mother told Father inearly 2011 that the child was in the custody of thegovernment until her criminal issues were resolved. InMarch 2011, the Department filed its petition to terminatethe parents’ parental rights. Father was appointedcounsel. Mother provided an address to the Departmentfor a business address for Father in California as well as atelephone number. The caseworker called the phonenumber and left a message. The CASA volunteer alsocalled the number and attempted to leave a message, butrelated there was “a language barrier” and was unsure ifthe woman who answered the phone would be able to giveFather a message or ask him to return the phone call.According to the caseworker’s affidavit, Father wasunknown to her and was a transient person. Thecaseworker stated that she sent notice to Father at thebusiness address by certified mail, return receiptrequested. The “green card” was returned signed by aperson whose signature did not appear to be that of Father.The caseworker also stated that inquiries to the DiligentSearch Unit, Google, and the Department of Public Safetydatabases and Department of Humans Services yielded noresults. Thereafter, the Department effectuated service onFather by publication in Emory, Texas. Father’s parentalrights were terminated and the order was filed in JulyThe Court cited to In re E.R., 385 S.W.3d 552 (Tex. 2012)in stating that when a defendant’s identity is known,service by publication is generally inadequate, and serviceby publication should be a last resort, not an “expedientreplacement” for personal service. The Court stated thatif personal service can be effected by the exercise ofreasonable diligence, “substituted service is not to beresorted to”, and “A diligent search must include inquiriesthat someone who really wants to find the defendantwould make, and diligence is measured not by thequantity of the search, but by its quality.”The Court found that although the telephone numberprovided for Father may have had an “adequateconnection,” the two efforts made by the caseworker andthe CASA volunteer could not give the trial courtreasonable assurance that Father would have received anymessages, due to the language barrier. The Court alsostated that the fact the signature on the green card did notmatch Father’s signature should have caused theDepartment to make further inquiries. As to the searchesby the Diligent Search Unit, Google, and other Texasagencies, the Court stated this would have been effectiveto locate Father only if he was still in Texas. The Courtthen noted that there was not support for the caseworker’sstatements in the affidavit that Father was unknown ortransient. The Court held that “the Department’s search3

2017 Case Law Updateclient. I’ll leave it up to the [c]ourt’sdiscretion of what contact that could be;or whether it’s supervised or not. But Ialso do not think that they have met theirburden of proving that it’s in the child’sbest interest to terminate my client’sparental rights today.that included making two telephone calls, none of whichwere likely to have resulted in contacting [Father],sending one notice letter to a business address that maynot have been [Father’s] address, and checking a fewwebsites is not the type of diligent inquiry required beforethe Department may dispense with actual service . . .Here, it was both possible and practicable to moreadequately warn [Father] of the impending termination ofhis parental rights.” The Court also noted that publicationin Texas when Father was known to live in California was“a poor” and “hopeless substitute for actual service ofnotice.” The Appellate Court accordingly determined thattrial court’s finding of fact regarding the diligence of theDepartment’s search for Father was

As an appellate attorney, Eric has served as an advisor to the various attorneys representing the Department on a wide range of trial and appellate issues. He represents the Department before the fourteen courts of appeals and the Texas Supreme Court. Eric received his undergraduate and law degrees