## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00113

- CV

IN THE INTEREST OF B.F., A CHILD

On Appeal from the 307th District Court Gregg County, Texas Trial Court No. 2020

- 1657

- DR

Before Morriss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Justice Carter

____________________________________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### ME MORANDUM OPINION The Department of Family and Protective Services ( the Department) brought a petition for pr otection of a child, for conservatorship, and for termination of Mother’s parental rights 1 to her one
- year
- old son, B.F

. 2 Following a bench trial, the trial court found that termination of the parent

- child relationship was in B.F. ’s best interest , a nd it terminated Mother ’s parental rights pursuant to Section 161.001(b)(1), grounds (D) and (E) , of the Texas Fami ly Code

. Se e T EX
. F AM
. C ODE A NN . § 1 6 1 .001(b)(1)(D), (E) (Supp.)

. Mother appeals, maintaining that , because there was a failure to compl y w ith the statutes governing an a g reed transfer of venue, 3 the trial court had no jurisdiction to enter its order of termination

. 4
I . B ackground On August 12 , 202 0 , after learning that B.F. had tested positive for multiple illegal drugs, the Department f

il ed its original p etition in U p s hur County

. The record shows that , on August 21, 2020, the court entered an “agreement and order, ” requ iring Mother to submit to drug

1 Unknown Father’s parental rights were also terminated , but his rights are not at issue in thi s appeal.

2 To prote c t th e c hild’s pri vacy, we ref er to appellant as Mother and to the child by initials

. See T EX

. R. A PP

. P. 9.8(b)( 2).

3 See Chapter 155 of the Texas Family Code. In her motion to transfer, Mother did not represent that the Department h ad agreed with her r e ques t t o transfer the case to Gregg County. However, there is nothing in the record to in dicate that the Departm ent object ed to a venue transfer and, in fact, the trial court’s order was entitled “Agreed Order Transferring Suit.” Th is discrepancy does n o t af f e c t our anal ysis.

4 Mother does not contend that the trial court abused its discretion w hen it t erminated her parental rights on grounds (D ) and (E)

.3

tests and other matters. On September 4, 2020, Mother notified the court that she wa nte d B.F.’s
case transferred to G re g g Co unty. 5 On September 5, 2020, Mother filed a motion to transfer venue , and on September 8, 2020, the Upshur County d istrict c ourt entered an order transferring the suit to Greg g County

. The Gregg Coun ty d istrict c our t he ld a bench trial on the merit s o f the Department’s petition on
November 16 , 2021. Immediately prior to the commencement of trial, Mother ’s counsel
announced to the trial court that he had received a text message from Mother on November 11,
202 1 , “stat in g that [Mother] would not be at ten d ing the [trial ] , and [her counsel] could let the Court know she was giving up her rights.” The trial cour t admitted a copy of the text message into evidence without objection. After hearing additional te stimony a nd revi ew ing the exhibits,
the tria l cou rt g ranted the Department’s petition and terminated Mother’s parental rights.
II. Jurisdiction of Gregg Cou nty Mother appeals alleging that the 307th Judicial District Court of Gregg Count y had no jurisdiction over t he ca se and that , therefor e , its order of termination is void. T o s u pport this argument, Mother alleges that the order transferring the case from Upshur County to Gregg
Cou nty did not comply with Section 155.301(c) of the Texa s Family Code. That sectio n state s that , “if the parties submit to the court an agreed order for t ransfer, the court shall sign the order without the need for other pleadings.” T EX
. F AM
. C ODE A NN
. § 15 5.301(c). Mother alleges that the order was not agre ed because the parties did no t sig n the order. Based on this failure, Mother
argues , the trans fer was ineffective. We disagree.

5 According to the record, the Department had filed a separate case against Mother invo lving anoth er on e of her children. Th at c ase was pending in Gregg County.4

Section 155.301 of the Texas Family Code does not apply t o the facts of this case. Instead, it app lies only to a transfer order from a court “with cont in uing, e xclusive jurisdiction over a child.” A court only acquires cont i nuing, exclusive jurisdiction if it has issued a final
order. T EX
. F AM
. C ODE A NN
. § 155 .001(a) (Supp.) . The Upshur County court never entered a final order and was not a court of c on tinui ng jurisdiction over this case. The transfer appears to have been based o n Section 155.202(b) of the Tex a s Family
Code , which states that, “for the convenience of the parties and witnesses and in the interest of justice, the court , on the timely mo tion of a party, may transfer the proceeding to a proper court
i n another c ounty in the state. ” T EX
. F AM
. C ODE A NN
. § 155.202(b). In fact, Mother’s motion to transfer specifically cited this stat ute as the basis for transfer. This stat ute has no requi re ment th at all parties agree to the motion to transfer.
W hen no court h as continuing, exclusive j urisdiction, “a court of this state has jurisdiction to make an initial child custody determination” if “this state is the home state of the
child on the d ate o f the commencement of the proceeding.” T EX
. F AM
. C O DE A NN
. § 1 52.201( a )(1)

. Here , it is uncontested that Texas is B.F.’s home state. 6 Consequently, the Upshur County d istri ct c ourt had jurisdiction to transfer venue to Gregg County , and the Gre g g C ounty d i stri ct c ourt had jurisdiction to enter the terminat ion order.

6 Both Upshur and Gregg Counties w e re courts of pro per jurisdiction over the child custody dispute.5

III. Waiver of Venue Section 103.001 of the Texas Family Code sets forth the applicable rul es regarding venue for suits affecting parent

- child relationships. T EX
. F AM
. C ODE A NN . § 103.00 1 (Su p p
. )

. 7 With a few exceptions, venue o f an original suit is proper in the county where the child resides. Id

. Mother w as free to waive her rig ht to proceed in Upshur County. In re S.D. , 980 S.W.2d 758 (Tex. App.

— San Antonio, writ denied). In In re S.D. , the Sa n Antonio Court of Appeals stated
as fol lows:
The l aw in Texas has long been t hat any party to a lawsuit may exp ressly or impliedly waiv e rights conferred upon him by a venue statute. The matter of venue is a personal privilege which may be w aived. An ex p ress waiver is shown by clear overt act s evidencin g an intent to waive, while an implied waiver occurs when a p arty, often inadvertentl y, takes some action inconsistent with his position on the venue issue and therefore is held to have waived his r ights t h ereon. Id

. at 759 ( citatio ns omitted). Having filed the motion asking the court in Upshur County to transfer the case to Gregg County, Mother showed a “clear overt act evidencing her intent to waive” on appeal her complaint regarding venu e. W e aff ir m the judgment of the trial c ourt

.

Jack Carter Justice
Date Submitted: February 9, 2 022 Date Decided: Marc h 2 , 2022

7 Section 103.001 states that , in a suit affecting the parent

- child relationship, venu e for th e o ri ginal suit is prope r wh e re the c hild resides unless (1) there is a court of continuing exclu s ive jurisd iction, (2) venue is fixed in a divorce proceeding, or (3) an adoption is involved. T EX

. F AM

. C ODE A NN § 103.001(a), (b).