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Docket Number

No. 16478.

Attorney(S)

James R. Bass, John G. McGarr, Jr., San Antonio, for appellant. R. Laurence Macon, Diann Bartek, Cox Smith, San Antonio, for appellee.

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Smart Summary

Case Summary: In the Interest of M. S. B., D. G. B. and K. R. B., Minor Children (No. 16478)

Factual and Procedural Background

The parents were divorced in 1970 by the Circuit Court of Raleigh County, West Virginia. The 1970 decree named the mother as managing conservator and required the father to pay $60 per month per child. In February 1977 the West Virginia court modified the father's visitation rights. The mother moved with the children to Texas on or about March 1, 1977, and they have been Texas residents since that date.

On August 22, 1978 the mother filed suit in Bexar County, Texas to modify the 1970 West Virginia decree to increase child support. A West Virginia sheriff "served" the father by attaching a copy of the summons to his residence door; the father did not appear, and the Texas court increased child support to $450 per month for the three children.

On August 22, 1979 the mother (who had remarried) filed in Texas to terminate the father's parental rights and to permit adoption by her second husband. The father timely filed a special appearance asserting lack of jurisdiction; no question was raised about sufficiency of notice. The trial court sustained the father's special appearance and dismissed the suit for lack of jurisdiction. The mother appealed to the Court of Civil Appeals of Texas, San Antonio. The opinion is dated December 31, 1980 (rehearing denied February 5, 1981).

Legal Issues Presented

Whether a Texas court may exercise personal jurisdiction over a nonresident father to entertain a suit filed by the mother (and affecting the parent-child relationship) to terminate the father's parental rights when the mother and children are residents of Texas.
Whether the jurisdictional standards applied to custody proceedings (as discussed in Perry v. Ponder) are equally applicable to termination-of-parental-rights proceedings, or whether termination requires a different rule.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Perry v. Ponder, 604 S.W.2d 306 (Tex.Civ.App. Dallas 1980, no writ)	Authority that where the child and one parent resided in Texas for an extended period (almost eight months), a Texas court could entertain a custody suit involving a nonresident parent.	The court adopted the reasoning and conclusion in Perry and applied it to the present case, concluding the same jurisdictional approach applies to proceedings affecting the parent-child relationship (including termination of parental rights).
Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)	The Supreme Court indicated that jurisdiction questions should be analyzed by reference to the "minimum contacts" rule from International Shoe but recognized that the minimum contacts standard "cannot accommodate some necessary litigation" and that exceptions (including status adjudications) exist.	The court relied on Shaffer's recognition of exceptions to minimum contacts for status adjudications to support application of particularized jurisdictional rules (here, Texas Family Code § 11.045) governing status determinations affecting parent-child relationships.
International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)	Established the "minimum contacts" standard for personal jurisdiction referenced by Shaffer.	The opinion cites International Shoe as the foundational minimum-contacts standard and explains that Shaffer both endorsed that standard and acknowledged exceptions for certain proceedings (such as status adjudications) addressed by particularized rules like § 11.045.

Court's Reasoning and Analysis

The court began by identifying the statutory framework governing jurisdiction over nonresident defendants in parent-child matters. Tex.Fam.Code Ann. § 11.051 authorizes personal jurisdiction in certain enumerated circumstances (child conceived in the state; child resides in state as a result of acts or directives or with approval of the nonresident; nonresident resided with the child in the state; or any basis consistent with federal and state constitutions).

The court determined that under the undisputed facts of this case jurisdiction could not be predicated on the first three subdivisions of § 11.051. The court then turned to § 11.045 of the Family Code (effective prior to the filing of the termination suit), which prescribes jurisdictional standards for suits affecting the parent-child relationship. Section 11.045 provides that a Texas court has jurisdiction only if one of specified conditions is met (principal residence criteria; or, alternatively, that it is in the child's best interest because of a significant connection and availability of substantial evidence in Texas, immediate welfare concerns, or other states' inability or declination to exercise jurisdiction). The court noted that under § 11.045(b) mere physical presence of the child or presence of the child and one contestant, standing alone, is insufficient to confer jurisdiction.

The court relied on and adopted the reasoning of Perry v. Ponder, where the Dallas Court concluded a Texas court could entertain a custody suit when the child and one parent had resided in Texas for an extended period. Although Perry was decided before § 11.045 became effective and was grounded on subdivision 4 of § 11.051, the court found § 11.045 now expressly covers the situation and affirmed Perry's reasoning as applicable.

The father attempted to distinguish Perry by emphasizing that Perry involved custody modification while the present case sought termination of parental rights. The court rejected any distinction, reasoning that termination proceedings are status adjudications like custody cases and therefore should be governed by the same jurisdictional principles. The court also cited Shaffer v. Heitner to note that the Supreme Court expects jurisdictional questions to be governed by minimum-contacts principles but has recognized exceptions for certain necessary litigation, including status adjudications. The court concluded that Texas has "particularized rules governing adjudications of status" through § 11.045 and that Perry's reasoning is fully applicable to termination proceedings.

Holding and Implications

Holding: The judgment of the trial court sustaining the father's special appearance and dismissing the case is reversed. The cause is remanded for further proceedings.

Implications: - The court concluded that the jurisdictional analysis applied in Perry v. Ponder for custody disputes is equally applicable to proceedings to terminate parental rights where the statutory conditions of Tex.Fam.Code Ann. § 11.045 are relevant. - The direct effect is reversal of the dismissal and remand for further proceedings in the Texas trial court. - The opinion applies and adopts existing reasoning (Perry) and relies on the Family Code's particularized jurisdictional standards; it does not announce a separate, novel jurisdictional rule beyond applying those authorities to termination proceedings.

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In the Interest of M. S. B., D. G. B. and K. R. B., Minor Children.

OPINION

CADENA, Chief Justice.

This case involves the power of a Texas court to entertain a suit filed by the mother of minor children to terminate the parental rights of the nonresident father when the mother and children are residents of the State of Texas.

The father and mother were divorced in 1970 by decree of the Circuit Court of Raleigh County, West Virginia, and, under such decree, the mother was appointed managing conservator of the children and the father was ordered to make child support payments in the sum of $60.00 per month per child. In February, 1977, the West Virginia court entered an order modifying the father's visitation rights. The mother, with the children, moved to Texas on or about March 1, 1977, and have been residents of Texas since that date.

On August 22, 1978, the mother filed suit in a district court of Bexar County, Texas, seeking to modify the 1970 West Virginia decree by increasing the amount of support payments required of the father. A West Virginia sheriff "served" the father by attaching a copy of the summons to the door of the father's residence. The father made no appearance in this case and the Texas court entered an order modifying the West Virginia decree by increasing the child support payments to $450.00 per month for the three children.

On August 22, 1979, the mother, who had remarried, instituted proceedings in the Texas court to terminate the parental rights of the father and to effectuate the adoption of the children by the mother's second husband. The father timely filed a special appearance objecting to the jurisdiction of the Texas court. No question is raised concerning the sufficiency of the notice to the father.

The trial court dismissed the mother's suit for lack of jurisdiction over the father and she appeals.

Jurisdiction of Texas courts over nonresident defendants in cases involving the parent-child relationship is governed by Tex.Fam Code Ann. § 11.051 (Vernon 1975) which authorizes the exercise of personal jurisdiction over a nonresident if (1) the child was conceived in this state and the person on whom service is required is a parent or an alleged or probable parent; (2) the child resides in this state as a result of the acts or directives or with the approval of the person on whom service is required; (3) the person on whom service is required has resided with the child in this state; or (4) there is any basis consistent with the federal and state constitutions for the exercise of personal jurisdiction.

Under the facts of this case, it is clear that jurisdiction cannot be predicated on the first three subdivisions of section 11.051.

Under section 11.045 of the Family Code, which became effective prior to the filing of this suit, a Texas court has jurisdiction of a suit affecting the parent-child relationship, whether or not the child is physically present in this state, only if one of the following conditions is met: (1) this state (A) is the principal residence of the child at the time the proceeding is commenced; or (B) was the principal residence of the child at any time during the six-month period before the proceeding was commenced, and a parent or person acting as a parent resides in this state at the time of commencement of the proceeding; or (2) it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and the parents of the child or at least one contestant have a significant connection with this state and there is available in this state substantial evidence concerning the child's present or future care, protection, training and personal relationship; (B) the child is physically present in this state and there is a serious immediate question concerning the welfare of the child; or (C) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with this section, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine issues concerning the child.

Under section 11.045(b), the physical presence of the child in Texas or of the child and one of the contestants is not sufficient, standing alone, to confer jurisdiction. Tex.Fam Code Ann. § 11.045 (Vernon 1980 Supp.).

Section 11.045 is substantially similar to section 3 of the Uniform Child Custody Jurisdiction Act. See 9 U.L.A. 116, 122-23 (West 1979). The Texas version refers to suits "affecting the parent-child relationship," while the Uniform Act applies only to custody suits.

In Perry v. Ponder, 604 S.W.2d 306 (Tex.Civ.App. Dallas 1980, no writ), Chief Justice Guittard, after an exhaustive analysis of the problem and the relevant decisions, including decisions by the Supreme Court of the United States, concluded that where the child and one parent had resided in Texas for almost eight months, a Texas court could entertain a suit involving custody of the child although the other parent was a resident of Alabama. At the time that Perry was filed in the district court, what is now section 11.045 of the Texas Family Code was not in effect, and Chief Justice Guittard's well reasoned opinion was based on subdivision 4 of section 11.051. The same conclusion is more easily reached today, since section 11.045 now specifically covers the situation presented in Perry and is now before us in this case. We adopt the reasoning and conclusion in Perry.

In this case the father seeks to distinguish Perry on the ground that the Dallas Court was considering jurisdiction of a suit to change custody, while the case before us involves the more drastic procedure which results in the termination of all parental rights of the nonresident party. We see no reason for applying a different rule in a termination case.

It cannot be doubted that the parent-child relationship creates a status, and that a suit seeking to terminate such relationship is a status adjudication as much as a suit to determine custodial rights. Status is a "relationship between two persons, which is not temporary in its nature, is not terminable at the will of either and with which the State is concerned. Marriage is a status . . . and so too is the relationship of parent and child, whether natural or adoptive." Reese, Marriage in American Conflict of Laws, 26 Int'l Comp.L.Q., 952, 953 (1977). See Restatement (Second) of Conflict of Laws §§ 69-79 (1971), which includes jurisdiction over divorce, adoption and custody under the heading, "Jurisdiction over Status."

Although in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), the Supreme Court expressed its intention to determine questions of state court jurisdiction by reference to the "minimum contacts" rule applied in International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Court recognized that the minimum contacts standard "cannot accommodate some necessary litigation," and recognized the need for some exceptions, including status adjudications. Shaffer v. Heitner, 433 U.S. at 201, 97 S.Ct. at 2578. In the case before us, even more so than in Perry, Texas has, under section 11.045, established specific jurisdictional standards applicable to proceedings involving status determinations. Stated differently, we have "particularized rules governing adjudications of status." Shaffer v. Heitner, 433 U.S. at 208, n.30, 97 S.Ct. at 2582, n.30.

We conclude that the reasoning in Perry is fully applicable to proceedings involving the termination of parental rights.

The judgment of the trial court sustaining the father's special appearance and dismissing the case is reversed and the cause is remanded for further proceedings.

M. S. B., IN INTEREST OF