In re Nabors

• Decision Date: 16 January 2009
• Docket Number: No. 14-08-00380-CV.,14-08-00380-CV.
• Citation: 276 S.W.3d 190
• Parties: In re James Madison NABORS and Julia Nabors, Relators.
• Court: Texas Court of Appeals

276 S.W.3d 190

In re James Madison NABORS and Julia Nabors, Relators.

No. 14-08-00380-CV.

Court of Appeals of Texas, Houston (14th Dist.).

January 16, 2009.

David Perwin, Rosenberg, for Appellants.

Sarah Stallberg, Houston, Trevor A. Woodruff, Austin, for Appellees.

Panel consists of Justices FROST, SEYMORE, and GUZMAN.

MAJORITY OPINION

CHARLES SEYMORE, Justice.

In this original proceeding, relators, James Madison Nabors and Julia Nabors, seek a writ of mandamus ordering the respondent, the Honorable Michael Schneider, to transfer the underlying case from Harris County to Fort Bend County. We conditionally grant the writ.

BACKGROUND

On May 16, 2006, the Texas Department of Family Protective Services ("TDFPS") placed T.D.P. and D.E.P. with the Naborses, who became their foster parents. On August 22, 2007, the trial court signed a final order in a suit to terminate the parental rights of T.D.P. and D.E.P.'s biological parents. TDFPS was named the sole managing conservator. On October 26, 2007, the children were removed from the Naborses' home on allegations of abuse. TDFPS informed the Naborses that "[b]ased on the information gathered, it was determined that you had no role and the investigation was closed." The children were not returned to the Naborses' home.

On November 9, 2007, the Naborses filed, in Harris County, a petition for adoption and motion to modify the parent-child relationship with an accompanying motion to transfer venue to Fort Bend County.¹ In their motion, the Naborses alleged that Fort Bend County has been the children's principal residence and "has been in that county during the six-month period preceding the commencement of this suit."² On December 19, 2007, TDFPS filed an answer. Prior to a hearing on February 4, 2008, TDFPS filed a response to the motion to transfer supported by an affidavit. The trial court denied the motion to transfer venue.³

STANDARD OF REVIEW

In order to obtain mandamus relief, the relator must show that the trial court clearly abused its discretion, and the relator has no adequate remedy by appeal. In re Sw. Bell Tele. Co., L.P., 226 S.W.3d 400, 403 (Tex.2007) (orig.proceeding). A trial court has no discretion in determining what the law is or applying the law to facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). The transfer of a suit-affecting the child-parent relationship to a county where the child has resided for more than six months is a mandatory ministerial duty. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987). Therefore, a writ of mandamus is available to compel the mandatory transfer of a suit affecting the parent-child relationship. Id. at 672.

MOTION TO TRANSFER VENUE

Because the 315th District Court of Harris County was the court of continuing jurisdiction based on the suit to terminate parental rights, the Naborses filed their motion to modify, petition for adoption, and motions to transfer in that court. See Tex. Fam.Code Ann. §§ 103.001(a) (Vernon 2002) (an original suit shall be filed in the county where the child resides unless another court has continuing exclusive jurisdiction); 155.001 (Vernon 2002) (a court acquires continuing, exclusive jurisdiction over the matters provided for by this title in connection with a child on the rendition of a final order). The Naborses sought to transfer the case to Fort Bend County on the assertion that the children had resided there for more than six months preceding the filing of the motion to modify and the petition for adoption. Section 155.201 of the Texas Family Code provides for the mandatory transfer of a proceeding on a motion to modify as follows:

(b) If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party the court shall, within the time required by Section 155.204, transfer the proceeding to another county in this state if the child has resided in the other county for six months or longer.

Tex. Fam.Code Ann. § 155.201(b) (Vernon Supp.2008) (emphasis added).

The Naborses contend the trial court had a ministerial duty to sever and transfer all proceedings pertaining to the children to Fort Bend County because the children had lived with them in Fort Bend County for the requisite length of time. TDFPS contends the Naborses did not present any evidence to support their motion to transfer venue to Fort Bend County, arguing that the Naborses failed to submit an affidavit that contained sufficient averments.

VENUE RULES

TDFPS contends the rules governing transfer of venue in a suit affecting parent-child relationship are a combination of the Texas Family Code, the Texas Civil Practice & Remedies Code, and the Texas Rules of Civil Procedure. Relying on the venue statute found in Chapter 15 of the Texas Civil Practice & Remedies Code and the Texas Rules of Civil Procedure, TDFPS asserts that venue questions are decided solely on the pleadings and affidavits, not on live testimony. See Tex. Civ. Prac. & Rem.Code Ann. § 15.064 (Vernon 2002) ("The court shall determine venue questions from the pleadings and affidavits."); Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 n. 4 (Tex.1992) (orig.proceeding) (explaining that live testimony may not be considered at a venue hearing under Rules 87 and 88 of the Texas Rules of Civil Procedure). However, transfer procedures under the Texas Family Code are the exclusive mechanism for transferring suits affecting the parent-child relationship and were designed to supplant the regular venue rules.⁴ Therefore, we need not consider the Naborses' motions to transfer venue under other statutes or the Rules of Civil Procedure. See Mendez, 761 S.W.2d at 521 (rejecting contention that trial court should have considered motion to transfer, which was filed in contempt proceeding for failure to pay child support, under Rule 86 of the Texas Rule of Civil Procedure and Chapter 15 of the Texas Civil Practice and Remedies Code).

Section 155.204 of the Family Code provides that the "motion must contain a certification that all other parties, including the attorney general, if applicable, have been informed of the filing of the motion." Tex. Fam.Code Ann. § 155.204(a) (Vernon 2002). Section 155.204 does not require that the motion be verified or supported by an affidavit. See In re Sanchez, 1 S.W.3d 912, 915 (Tex. App.-Waco 1999, orig. proceeding) ("[A] motion to transfer [under section 155.204] does not have to be verified nor must it be supported by an affidavit.").⁵

THE CHILDREN'S RESIDENCE

At the hearing on the motion to transfer, relator, James Nabors, testified that TDFPS placed the children with him and his wife on May 16, 2006, and the children resided with them in Fort Bend County for seventeen months. The Naborses contend TDFPS failed to controvert their venue averments.

TDFPS contends its affidavit controverts the Naborses' venue facts. We note that TDFPS did aver that the children were "not currently residing with the Naborses, and have not since October 26, 2007." However, there is no dispute that the children resided in Fort Bend County for approximately seventeen months before TDFPS removed them from the Naborses' household. TDFPS contends that it designated the Naborses' home as the children's residence on a temporary basis only. The TDFPS bases a major portion of its venue argument on the assertion that the "principal residence" of the children has always been Harris County because section 103.001(c) provides that a "child resides in the county where the child's parents reside." Tex. Fam.Code Ann. § 103.001(c). TDFPS contends it should be denominated the "parent" of the children because it was appointed sole managing conservator.

However, the Texarkana and the Amarillo Courts of Appeals have rejected similar arguments made by TDFPS. First, In re Kerst, 237 S.W.3d 441, 442 (Tex.App.-Texarkana 2007, orig. proceeding), presents a somewhat similar scenario in which TDFPS sought and obtained termination of the parental rights. TDFPS placed the children with the Kersts who lived in Bowie county. Id. After a disagreement arose between TDFPS and the Kersts, the children were removed from the Kersts' home. Id. Subsequently, the Kersts filed a motion to modify the conservatorship and motion to transfer venue from Hopkins county (where the court had continuing jurisdiction) to Bowie County. Id. In their motion, the Kersts alleged that the children had lived in Bowie County for more than six months. Id. It was undisputed that the children had lived with the Kersts, in Bowie County, for approximately seventeen months prior to the date the Kersts filed their motion to transfer venue, which the trial court denied. Id.

The court of appeals rejected TDFPS's assertion that the Legislature never intended for the proceedings to be transferred to the county where the foster parents resided with the children. Id. at 443-44. TDFPS argued that, until the statute was amended, foster parents had no standing to assert these rights and, when the Legislature granted such standing, it was not contemplated that foster parents would be allowed to seek and obtain a transfer to the county where they resided with the children. Id. But, the court of appeals concluded that the statute requiring the mandatory transfer of a suit affecting the parent-child relationship to the county where the child has resided for six months or longer is straightforward and clear, and declined to accept TDFPS's invitation to surmise that the statute has some other meaning. Id. at 444.

The appellate court further rejected TDFPS's argument that the children had not "resided" in Bowie County, but were placed there merely for foster care, reasoning "[i]t cannot be argued that they were only temporarily absent from another, more permanent residence, since these children had no other home or residence." Id. at 444-45. The court of appeals held that the children had resided in Bowie County for more...