A. Home State Jurisdiction
In his second issue, for the first time on appeal, appellant challenges the trial court's subject matter jurisdiction.
He argues that the trial court lacked jurisdiction because the children moved to Oklahoma and thus Texas was
no longer their home state. Subject matter jurisdiction is a question of law, to which we apply a de novo
standard of review. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Salaymeh v.
Plaza Centro, LLC, No. 14-06-01101-CV, ___ S.W.3d ___, 2008 WL 4335090, at *2 (Tex. App.- Houston [14th
Dist.] Aug. 26, 2008, no pet. h.). Subject matter jurisdiction may be raised for the first time on appeal.
Salaymeh, 2008 WL 4335090, at *2.
In the Interest of KY and KY (Tex.App.- Houston [14th Dist.] Nov. 6, 2008)(Yates)
(termination of parental rights, chronic child abuse, death by murder of step child, admission of autopsy photos,
home state jurisdiction, failure to join necessary party, waiver of error)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Guzman and Brown
14-07-00866-CV In the Interest of K.Y. and K.Y., Minor Children
Appeal from 300th District Court of Brazoria County
Trial Court Judge: Eric Andell
Section 152.201(a)(1) of the Family Code provides that a Texas court has jurisdiction to make an initial child
custody determination if Texas is the home state of the child on the date of the commencement of the
proceeding or was the home state of the child within six months before the commencement of the proceeding
and the child is absent from Texas but a parent or person acting as a parent continues to live in Texas. Tex.
Fam. Code Ann. § 152.201(a)(1) (Vernon 2002). “Home state" means the state in which a child lived with a
parent or a person acting as a parent for at least six consecutive months immediately before the
commencement of a child custody proceeding. Id. §152.102(7). At all times during this proceeding, the
children's parents lived in Texas. Thus, the central question is whether Texas was the children's home state on
the date of, or within six months before, commencement of this proceeding. See In re Burk, 252 S.W.3d 736,
740 (Tex. App.- Houston [14th Dist.] 2008, orig. proceeding [mand. denied]).
DFPS filed the third suit to terminate appellant's parental rights on September 15, 2006. Appellant claims the
children moved to Oklahoma a year earlier, meaning Texas could not have been their home state, but this is
not supported by the record. The children were born and lived in Texas until May of 2006. Their foster father
moved to Oklahoma during the fall or winter of 2005. However, the children and their foster mother continued
to live in Texas for several more months, and they visited Oklahoma on a monthly basis until May 2006 when
the family obtained permission from DFPS to permanently move to Oklahoma. Appellant insists that the whole
family actually moved together and that the Texas residence was merely a fiction. There is no evidence in the
record to support such a claim. The only evidence shows that the foster mother and the children maintained
their house and possessions in Texas and lived in Texas, with frequent visits to Oklahoma, until May 2006.
Such visits do not establish that the children moved from Texas, thereby creating gaps in the six month home
state jurisdiction time frame. See In re Schoeffel, 644 N.E.2d 827, 830 (Ill. App. Ct. 1994) (stating that brief
interstate visits by child do not defeat home state jurisdiction); In re Brown, 203 S.W.3d 888, 892B93 (Tex. App.
- Fort Worth 2006, no pet.) (finding Missouri, not Texas, was child's home state, despite several short visits to
Texas during six months before proceeding); cf. Powell v. Stover, 165 S.W.3d 322, 323, 328 (Tex. 2005) (citing
Schoeffel and holding that ten month move out of state defeated home state jurisdiction in Texas). Thus, as of
April 2006, the children had lived in Texas for at least six continuous months, and because April is within six
months before the comncement of this proceeding in September 2006, Texas was the children's home state,
and the trial court had subject matter jurisdiction. We overrule appellant's second issue.