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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-13-00349-CV

____________________

IN THE INTEREST OF J.C.M.

_________________________________ ______________________ 

On Appeal from the 410th District Court 

Montgomery County, Texas

Trial Cause No. 12-08-08578 CV 

____________________________________________ ____________ 

MEMORANDUM OPINION 

M.L., J.C.M.’s maternal grandmother, filed a petition in Texas seeking 

modification of a California custody order. J.C.M.’s father, J.M., filed a counterpetition. The trial court signed an order finding that modification is in J.C.M.’s best 

interest, removing J.M. as joint managing conservator, appointing M.L. as J.C.M.’s 

non-parent sole managing conservator, and appointing J.M. as a parent possessory 

conservator. In three appellate issues, J.M. challenges the trial court’s modification 

of the California order. We affirm the trial court’s order.
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Jurisdiction

In issue one, J.M. contends that the State of California has exclusive subject 

matter jurisdiction. In her petition, M.L. alleged that the trial court has jurisdiction 

under sections 152.201, 152.203, and 152.204 of the Texas Family Code. In its 

order, the trial court stated that it has jurisdiction under sections 152.201 and 

152.203. Subject matter jurisdiction is a question of law that we review de novo. In 

the Interest of C.T.H.S., 311 S.W.3d 204, 206 (Tex. App.—Beaumont 2010, pet. 

denied).

A Texas court may not modify a child custody determination made by an

out-of-state court unless: (1) the Texas court has jurisdiction to make an initial 

child custody determination; and (2) the out-of-state court determines it no longer 

has exclusive continuing jurisdiction or that a Texas court would be a more 

convenient forum; or the Texas court or out-of-state court determines that the 

child, the child’s parents, and any person acting as a parent do not presently reside 

in the other state. Tex. Fam. Code Ann. § 152.203 (West 2014). Section 152.201 

outlines the circumstances under which a Texas court may make an initial custody 

determination, such as when the child’s home state is Texas. Id. § 152.201(a).

“‘Home state’ means the state in which a child lived with a parent or a person 
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acting as a parent for at least six consecutive months immediately before the 

commencement of a child custody proceeding.” Id. § 152.102(7). 

According to M.L.’s affidavit, J.C.M.’s mother, C.C., left J.C.M. alone in a 

hotel room, and M.L. found J.C.M. at the hotel on February 1, 2012. M.L. filed 

her petition on August 16, 2012, over six months after she took possession of 

J.C.M. Because J.C.M. lived in Texas with M.L. for at least six consecutive 

months preceding M.L.’s petition, the trial court could reasonably conclude that 

Texas was J.C.M.’s home state on the date the proceedings commenced. See id. §§ 

152.102(7); 152.201(a)(1). Additionally, the California Department of Children 

and Family Services had previously recommended that the California court’s 

jurisdiction be terminated. In its January 2012 order, the California court 

terminated its jurisdiction over J.C.M. Accordingly, at the time M.L. commenced 

proceedings in Texas, the California court no longer had jurisdiction over the 

parties. See In re A.S., 95 Cal. Rptr. 3d 363, 365-66 (Cal. App. 4th 2009, review 

denied) (Once the California court terminated jurisdiction regarding the child, it

could no longer change, modify, or set aside a previous order.). Even J.M., in his 

counter-petition, stated that “[n]o court has continuing jurisdiction of this suit or of 

the child the subject of this suit.” We conclude that the California court’s order 
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contains a determination that it no longer has jurisdiction. See Tex. Fam. Code 

Ann. § 152.203(1).

J.M. further contends that section 152.206 of the Texas Family Code 

deprived the trial court of jurisdiction. Except for temporary emergency 

jurisdiction, a Texas court cannot exercise jurisdiction if, at the time of the 

commencement of the proceeding, a proceeding concerning the custody of the 

child has been commenced in a court of another state, unless the proceeding has 

been terminated or is stayed by the out-of-state court because Texas is a more 

convenient forum. Id. § 152.206(a). “‘Commencement’ means the filing of the first 

pleading in a proceeding.” Id. § 152.102(5).

The record does not indicate that a proceeding had been commenced in

California when M.L. filed her petition in Texas. The parties’ stipulation is dated

August 21, 2012, and, according to J.M.’s affidavit for UCCJEA information, C.C.

filed a modification of the California custody order on August 27, 2012. On 

August 27, 2012, the California Superior Court issued its stipulation and order for 

modification. J.M. subsequently informed the Texas court that no other court had 

continuing jurisdiction. Under these circumstances, we conclude that the Texas 

proceeding was already pending when the California case was commenced; thus, 

section 152.206 does not apply to this case. Because the Texas court properly 
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exercised jurisdiction under sections 152.201(a)(1) and 152.203(1), we overrule 

J.M.’s first issue. Therefore, we need not address issue three, in which J.M.

contends that the trial court improperly exercised temporary emergency 

jurisdiction. See Tex. R. App. P. 47.1.

Section 152.209 of the Texas Family Code

In issue two, J.M. complains that M.L. failed to comply with section 

152.209 of the Texas Family Code. Section 152.209 requires a party to provide the 

following information in a pleading or affidavit, if reasonably ascertainable: (1) the 

child’s address or location, the places where the child lived in the last five years, 

and the names and addresses of the persons with whom the child lived; (2) whether 

the party has participated in any other proceeding concerning custody of or 

visitation with the child and, if so, the court, case number, and date of any custody 

determination; (3) whether the party knows of any proceeding that could affect the 

current proceeding and, if so, the court, case number, and nature of the proceeding; 

and (4) whether the party knows the names and addresses of any person not a party 

to the proceeding who has physical custody of the child or claims rights of custody 

or visitation with the child and, if so, the names and addresses of those persons. 

Tex. Fam. Code Ann. § 152.209(a) (West 2014). The failure to comply with 

section 152.209 is not jurisdictional. In the Interest of G.M., No. 04-13-00689-CV, 
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2014 Tex. App. LEXIS 3234, at **13-14 (Tex. App.—San Antonio Mar. 26, 2014, 

no pet.) (mem. op.).

Under section 152.209, M.L. was only required to provide information that 

was reasonably ascertainable. See Tex. Fam. Code Ann. § 152.209(a). In an 

affidavit dated August 10, 2012, M.L. stated that, to her knowledge and belief, the 

California court’s January order had not been modified. In her petition, M.L. stated 

J.C.M. resides with her in Montgomery County, Texas. M.L. explained that the 

Texas Department of Family and Protective Services had previously been involved 

and that there has been no change in J.C.M.’s property since the January 2012 

California order. She identified J.M. and C.C. as parties who may be affected. Only 

if the questions posed in section 152.209(a) yielded affirmative answers would 

M.L. be required to provide additional information, and the trial court could

examine the parties as to any details pertinent to its jurisdiction and disposition of 

the case. See id. § 152.209(c). The trial court could conclude that M.L.’s affidavit 

and pleadings substantially complied with section 152.209(a) and that if further 

information was required, the proceedings could be stayed so the information 

could be provided. See id. § 152.209(a), (b). 

J.M. also complains that M.L. failed to file the most recent California order 

with the trial court. Section 152.209 imposes a continuing duty on each party to 
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inform the trial court of any proceeding that could affect the current proceeding. Id. 

§ 152.209(d). The record indicates that, at the time M.L. filed her petition in Texas, 

the California court’s January order was the only order in existence. J.M. filed the 

modified order with the trial court on August 31, 2012. The record does not 

indicate that M.L. was aware of the August 2012 order and failed to provide it to 

the trial court. Accordingly, we reject J.M.’s contentions that M.L. failed to 

comply with section 152.209. We overrule issue two and affirm the trial court’s 

judgment.

AFFIRMED.

 ________________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on May 2, 2014

Opinion Delivered May 22, 2014

Before McKeithen, C.J., Horton and Johnson, JJ.