E.H., Matter of

• Decision Date: 14 April 1993
• Docket Number: No. 49A02-9012-CV-739,49A02-9012-CV-739
• Citation: 612 N.E.2d 174
• Parties: In the Matter of E.H. and L.H., Children alleged to be in need of services. THOMAS B.H., Appellant-Respondent, v. MARION COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner, and D.S., Additional Appellee. In the Matter of the Termination of the Parent-Child Relationship of L.H. and E.H., Minors, and Thomas B.H. THOMAS B.H., Appellant-Respondent, v. MARION COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner, and D.S., Additional Appellee.
• Court: Indiana Appellate Court

Page 174

612 N.E.2d 174

In the Matter of E.H. and L.H., Children alleged to be in

need of services.

THOMAS B.H., Appellant-Respondent, v. MARION COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner, and D.S., Additional Appellee.

In the Matter of the Termination of the Parent-Child

Relationship of L.H. and E.H., Minors, and Thomas B.H.

THOMAS B.H., Appellant-Respondent, v. MARION COUNTY DEPARTMENT OF PUBLIC WELFARE, Appellee-Petitioner, and D.S., Additional Appellee.

No. 49A02-9012-CV-739.

Court of Appeals of Indiana,

Second District.

April 14, 1993.

Rehearing Denied May 17, 1993.

Margaret Hills, Frankfort, KY, for appellant-respondent Thomas B.H.

Mary Jane Norman, Marion County Dept. of Public Welfare, Indianapolis, IN, for petitioner-appellee Marion County Dept. of Public Welfare.

M. Kent Newton, Leah S. Mannweiler, Krieg DeVault Alexander & Capehart, Indianapolis, IN, for additional appellee D.S.

SULLIVAN, Judge.

On January 5, 1990, the Marion County Superior Court, Juvenile Division, found E.H. and L.H. to be Children in Need of Services (CHINS) upon the ground that Thomas B.H. (Father) had sexually abused them during visitation in Indiana pursuant to a divorce decree issued in the District Court of Harris County, Texas. On September 7, 1990, the Juvenile Court entered a dispositional order strictly curtailing Father's visitation rights with the children. On February 21, 1992, the Juvenile Court terminated Father's parental rights in a separate action upon the basis that the conditions leading to the CHINS determination were unlikely to be remedied.

Father challenged the CHINS and the termination proceedings in separate appeals. This court consolidated the appeals under the above referenced cause number. In all, Father presents nine issues for review. Because we find the first issue dispositive, however, we address only the question whether the Juvenile Court properly exercised jurisdiction over the proceedings in light of the prior Texas custody determination and the Texas Court's exercise of continuing jurisdiction over visitation matters. ¹

We reverse.

On January 19, 1988, D.S. (Mother) and Father were divorced in the District Court of Harris County, Texas, 308th Judicial District, pursuant to a consensual divorce decree. Two girls had been born of the marriage: E.H., who was four at the time of the divorce, and L.H., who was two. The custodial disposition of the divorce decree named both parties "Joint Managing Conservators" over the children. ² However, the decree awarded "primary custody and control", including the right to possession of the children and the right to establish a legal domicile, to Mother while granting Father visitation rights as mutually agreed by the parties, or failing that, pursuant to a specific schedule. The schedule empowered Father to visit the children twice over the summer for one and two weeks respectively, during Easter vacation for one week, over the Christmas holiday every other year, and by arrangement whenever he was in Indianapolis (where Mother planned to reside with the children).

Father exercised his visitation rights in accordance with the divorce decree twice in the summer of 1988, and over a four-day period in October 1988, when he was in Indianapolis. After the October visit, Mother suspected Father of sexually abusing the children. Therefore, on November 10, eleven days after the visit had ended, she took the children to Dr. Charles Hasbrook, the children's pediatrician. Hasbrook was unable to find physical evidence to corroborate Mother's allegations; however, he reported Mother's concerns to The Department of Public Welfare, Child Protective Services Division (The Department). ³

On November 15, two representatives from the Department interviewed the children. Beverly Rifleman, one of the representatives, filed a report which concluded:

"Caseworker is going to indicate sexual abuse based on the actions of the child during the interview and also based on what mother has told caseworker. There is nothing that caseworker can substantiate but has a strong feeling that the children have evidently experienced some things with father they wish not to talk about. It appears they [sic] may perhaps have been some form of sexual fondling." Record at 1808.

Notwithstanding her "strong feeling", Rifleman closed the case at that time due to a lack of evidence.

On December 9, Mother petitioned the Harris County District Court to modify the divorce decree to suspend Father's visitation rights with the children, or alternatively, to restrict his right to supervised visits. The petition alleged that the Texas court:

"has acquired and retains continuing jurisdiction of this suit and of the children the subject of this suit in so far as such jurisdiction relates to the modification of periods of access and possession as specified by the terms of the order to be modified, as as [sic] result of prior proceedings." Record at 149-50.

The Texas Court heard evidence upon the petition for two days and took the matter under advisement. On December 16, Father filed a counter-claim for modification of visitation and support. The Texas court talked with the parties' attorneys in chambers and was prepared to order Mother to produce the children for a supervised Christmas visit in Houston when Mother requested that the court non-suit the case pursuant to Rule 162 of the Texas Rules of Civil Procedure. The court dismissed her claim, but retained jurisdiction over Father's counter-claims.

On December 19, 1988, Mother petitioned the Marion County Superior Court, Civil Division, in Indiana to modify the custody and visitation determinations established by the Texas divorce decree. The Superior Court set a hearing for April 19, 1989. Although the record is unclear as to the exact date of filing, Mother moved to dismiss Father's remaining claims in the Texas court sometime between December 19 1988 and February 9, 1989, now alleging that the Texas court lacked jurisdiction over the dispute.

Pursuant to the original divorce decree still in effect, Father made plans to visit the children over the 1988 Christmas holiday, and informed Mother of the details of his arrival in Indianapolis. When he arrived, however, Mother had left the State with the children in order to prevent Father from visiting them. When Father returned to Texas he instituted contempt proceedings in the Texas District Court for Mother's willful violation of the terms of the divorce decree.

On March 2, 1989, Father returned to Indianapolis to exercise his visitation rights pursuant to the still unmodified divorce decree. Anticipating Mother's refusal to produce the children, Father brought with him an order of the Texas court dated March 1 restraining Mother from interfering with the visitation. Upon his arrival, however, Father was confronted with a CHINS petition which the Department had filed that morning with the Marion County Juvenile Court.

In addition to alleging the results of the November 15, 1988 interview, The Department's CHINS petition alleged incidents reported by Mother on November 17 and 22, 1988, and the evaluation of two psychologists. It further alleged--erroneously, so far as the record reveals--that Dr. Hasbrook had found contusions up and down E.H.'s legs at his November 10, 1988 examination, which E.H. reported were caused by Father pinching her, and slight irritation of L.H.'s labia.

Father moved to dismiss the action for lack of subject matter jurisdiction due to the Texas court's continued exercise of jurisdiction over the visitation issue. However, the CHINS court assumed jurisdiction to determine whether Father could take physical custody over the children for the purpose of the March 2 visit, noting that it would ultimately have to consider whether Indiana or Texas was the most convenient forum for the final determination of the matter. The court held a detention hearing later that afternoon, at which it limited Father's access to the children to supervised visits arranged by the Department until a fact-finding hearing could be conducted on April 25.

On March 28, the CHINS court held a pre-trial hearing at which the court's jurisdiction was at issue. The CHINS court informed the parties that the Marion County Superior Court, Civil Division, was willing to defer jurisdiction to the CHINS court, but that the Harris County District Court was reluctant to give up its jurisdiction primarily because the Texas court believed that the several days of evidence already heard involved the precise matter before the CHINS court. Since it was preparing to rule within the week upon a number of issues in the case, the Texas court requested that the CHINS court not rule or stay any ruling pending a Texas disposition. Notwithstanding this request, the CHINS court decided to exercise jurisdiction and proceed with the case, subject however to further discussions with the Texas court.

On April 6, The Texas court denied Mother's motion to dismiss for lack of subject matter jurisdiction. The next day, Mother petitioned the Court of Appeals for the First Supreme Judicial District of Texas for leave to file a petition for writ of mandamus ordering the Harris County District Court to refrain from exercising jurisdiction over the case.

On April 11, while the petition for leave was still pending, the Indiana CHINS court held a child competency hearing. Jurisdiction was discussed only in passing at the hearing; however, the CHINS court issued an order following the hearing in which it found that it had jurisdiction over the case. On April 12, the Texas Court of Appeals granted leave to file the petition for writ of mandamus, and on April 13, the CHINS court vacated a pending order to hold a jurisdictional hearing that had been scheduled for April 19.

On April 14, a hearing was held in the Harris County District Court in which Father sought, inter alia, to obtain an order from the court requiring M...