In Re ADP

281 S.W.3d 541, 2008 WL 4684351
CourtCourt of Appeals of Texas
DecidedOctober 23, 2008
Docket08-06-00245-CV
StatusPublished

This text of 281 S.W.3d 541 (In Re ADP) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re ADP, 281 S.W.3d 541, 2008 WL 4684351 (Tex. Ct. App. 2008).

Opinion

281 S.W.3d 541 (2008)

In the Interest of A.D.P., a child.

No. 08-06-00245-CV.

Court of Appeals of Texas, El Paso.

October 23, 2008.

*543 Greg M. Holly, Monahans, Randall W. Reynolds, Dist. Atty., Pecos, Lisa Aceves Hayes, Elizondo & Hayes, P.C., El Paso, for Appellants.

Hal Upchurch, Monahans, for Appellee.

Before CHEW, C.J., McCLURE, and CARR, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

Ida Mae Parmer and Jaimee Collins appeal from an order appointing Tammie Lobstein and Allen Morton as the sole managing conservators of A.D.P. Finding no error, we affirm.

FACTUAL SUMMARY

Mary Anna Parmer is the biological mother of Ida Mae Parmer. Ida Mae Parmer is the biological mother of Jaimee Collins. Ida Mae's parental rights to Jaimee were terminated and Jaimee was adopted by her grandmother, Mary Anna. A.D.P. was born to Jaimee on October 18, 1999. In 2001, Jaimee's parental rights to A.D.P. were terminated[1] and he was adopted by his maternal great-grandmother, Mary Anna Parmer. By virtue of these terminations and adoptions, Ida Mae and Jaimee are A.D.P.'s sisters.

A.D.P. resided in Ward County with Mary Anna from the date of his birth until her death on December 25, 2005. Mary Anna began receiving cancer treatment in June 2005. Ida Mae placed her in a nursing home in Limestone County where she remained until her death. Due to Mary Anna's illness, Ida Mae withdrew A.D.P. from the Pecos-Barstow-Toyah Independent School District in early November 2005 and took him to her home in Limestone County. In her will, Mary Anna left her entire estate to A.D.P. and appointed Jaimee to be the guardian of the person and estate of A.D.P. if he was a minor at the time of her death. Alternatively, she appointed Ida Lou Hallmark in the event Jaimee failed or ceased to act as guardian. The will authorized the executor, Ida Mae, to distribute the whole or any part of the estate to A.D.P. or to his guardian, or to the person or persons with whom A.D.P. resided.

Following Mary Anna's death, Ida Mae placed A.D.P. in the care of Tammie Lobstein and Allen Morton who are not related to him. Tammie enrolled the child in school in Ward County on January 23, 2006. On March 6, Ida Mae notified Tammie of her intent to remove A.D.P. from Ward County. Tammie and Allen immediately filed an application for temporary guardianship in the Ward County Court (the county court), and on March 9, the county judge appointing them as temporary guardians until May 8. The same day, Tammie and Allen filed a suit affecting the parent-child relationship (SAPCR) seeking to be appointed the non-parent sole managing conservators of A.D.P. The 143rd District Court (the district court) issued a temporary restraining order prohibiting Ida Mae, acting directly or in concert with others, from removing the child from the court's jurisdiction or visiting the child at school without the advance knowledge and permission of Tammie and Allen. On *544 March 12 or 13, Jaimee tried to pick the child up from school in Ward County.

On April 28, Ida Mae and Jaimee filed a counter-petition seeking to be appointed the sole managing conservators of A.D.P.[2] and a motion to transfer venue of the SAPCR to Limestone County because the child resided there. They also filed a motion in the county court to transfer the contested guardianship to the district court and a motion to transfer venue of the guardianship proceeding to Limestone County. Finally, they filed an application to be appointed the temporary guardians of A.D.P. On April 28, the county court extended the temporary guardianship until June 26 or until entry of an order establishing conservatorship in the district court, whichever occurred first. The county court entered an order on May 1 transferring the contested guardianship proceeding to the district court which in turn filed the guardianship proceeding in the SAPCR cause.[3]

Following a hearing on June 1, the district court denied the motion to transfer venue of the guardianship proceeding to Limestone County because at the time of Mary Anna's death, her residence and the residence of A.D.P. was Ward County. The trial court also found that Tammie and Allen had standing to file their application for appointment as temporary guardians. It appointed Tammie and Allen as the sole managing conservators of A.D.P. and granted Ida Mae's request for reasonable access. By its own terms, the temporary guardianship expired upon the entry of the order establishing the conservatorship.[4] Ida Mae and Jaimee (Appellants) timely filed notice of appeal.

THE GUARDIANSHIP PROCEEDING

In their first issue for review, Appellants raise multiple issues pertaining to the guardianship proceeding and the temporary guardianship order. First, they complain that the county court did not have authority to appoint Tammie and Allen as temporary guardians of A.D.P. because venue was proper in Limestone County. Second, they argue that Tammie and Allen's application for appointment as guardians did not meet the requirements of Section 875 of the Probate Code. Third, Appellants contend that the district court erred by failing to hear the guardianship petitions before ruling on the SAPCR.

Venue

Appellants claim that the county court lacked authority to appoint Appellees as temporary guardians because the proper *545 venue of the guardianship proceeding was in Limestone County. They also challenge the district court's denial of their motion to transfer the guardianship proceeding to Limestone County. Regardless of whether venue was proper in Ward County, the county court did not lack jurisdiction of the guardianship proceeding. A county court has the general jurisdiction of a probate court and as a probate court, it has the authority to appoint guardians of minors. TEX.PROB.CODE ANN. § 605 (Vernon 2003). Section 610 governs venue for appointment of a guardian. TEX.PROB. CODE ANN. § 610. The jurisdiction of the court is invoked by filing an application which alleges the minor to be a resident of the county of suit. To the extent Appellants assert that the county court lacked jurisdiction, their argument is without merit. We now address whether the district court erred by refusing to transfer the guardianship proceeding to Limestone County.

When considering a motion to transfer venue, the trial court must assume the allegations are true and rule based upon the pleadings and affidavits submitted by the parties. TEX.R.CIV.P. 87. Venue questions are to be decided based on the "facts existing at the time the cause of action that is the basis of the suit accrued." TEX.CIV.PRAC. & REM.CODE ANN. § 15.006 (Vernon 2002). On appeal, we must conduct an independent review of the entire record to determine whether any probative evidence supports the trial court's decision. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993). We review the evidentiary record in the light most favorable to the venue ruling, but we accord no deference to the trial court's application of the law. Id. If there is any probative evidence supporting venue in the county where judgment was rendered, the judgment must be affirmed. Id.; Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex.1995). If no such evidence exists, the cause must be reversed. TEX.CIV.PRAC. & REM.CODE ANN. § 15.063; Ruiz,

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in the Interest of A.D.P., a Child
281 S.W.3d 541 (Court of Appeals of Texas, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
281 S.W.3d 541, 2008 WL 4684351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adp-texapp-2008.