MacArena Trevino v. Arkansas Department of Human Services and Minor Children

Cite as 2022 Ark. App. 182
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-21-552

Opinion Delivered April 27, 2022

MACARENA TREVINO APPEAL FROM THE ST. FRANCIS
APPELLANT COUNTY CIRCUIT COURT
[NO. 62JV-19-65]
V.
HONORABLE KATHIE HESS,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES AND MINOR
CHILDREN
APPELLEES AFFIRMED

BRANDON J. HARRISON, Chief Judge

Macarena Trevino appeals the termination of her parental rights to her three

children. She asserts that the circuit court did not have subject-matter jurisdiction, so its

decision should be reversed. We disagree with Trevino’s argument and affirm.

On 15 September 2019, police initiated a traffic stop on a vehicle driven by Trevino

after the vehicle was observed speeding. Police found a gas can in the front seat, and two

of the three children (ages two, four, and five) in the car were not wearing seat belts. Police

searched the vehicle and found 22 one-pound bundles of methamphetamine in the gas tank.

Macarena denied knowledge of the drugs and stated that she had been to Mexico to visit

her boyfriend and was now traveling from Mexico to West Virginia to visit her brother.

Trevino was charged with drug trafficking and three counts of endangering the

welfare of a minor, among other charges. The Arkansas Department of Human Services

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(DHS) was notified and exercised an emergency seventy-two-hour hold of the children; on

19 September 2019, DHS petitioned the circuit court for emergency custody of the

children, which was granted. The affidavit filed with the petition listed Trevino’s address

as 863 Clark Street in Donna, Texas; DHS identified Norma Rodriguez, the maternal

grandmother, at that same address. 1

The probable-cause order, entered on September 24, directed DHS to complete an

expedited home study “on the grandmother or aunt in Texas” according to the Interstate

Compact on the Placement of Children (ICPC), codified at Ark. Code Ann. §§ 9-29-201

to -208 (Repl. 2020). The court also entered an order for an expedited placement decision

under Regulation 7 of the ICPC. That order identified Leticia Trevino, the children’s aunt,

and Norma Rodriguez, the maternal grandmother, as possible placements.

On December 10, the court adjudicated the children dependent-neglected due to

“gun discharge and domestic violence in the home.” 2 The court found that there was not

a noncustodial parent who was a legal parent of the children and that Trevino was currently

being held in a federal detention facility. The court reviewed the case on 28 January 2020

and found that there was an approved ICPC home study on Norma Rodriguez. The court

placed the children with Rodriguez and noted that “Arkansas will retain jurisdiction and

responsibility for services for juvenile until such time as the state of Texas approves

permanent placement.” The review order noted that Trevino was currently incarcerated in

1
The maternal grandmother is sometimes referred to as Norma Trevino in the record;
however, to avoid confusion, this opinion will identify her as Rodriguez.
2
It is not clear from the record what led to this basis for adjudication.
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the West Tennessee State Correctional Facility but was scheduled to be released soon and

was expected to return to Texas. A second review order in May found that temporary

custody with Norma Rodriguez continued to be in the children’s best interest and that

Trevino was incarcerated in Jackson County, Arkansas with no release date noted.

In October 2020, the circuit court convened a permanency-planning hearing and

changed the goal of the case to adoption. According to the permanency-planning order,

Trevino had testified that she wanted her mother to adopt her children and that she

understood her parental rights would be terminated. The court reviewed the case again in

February 2021; it found that Trevino had recently been sentenced to ten years’

imprisonment in a federal prison and that the children’s placement with the maternal

grandmother had been revoked by Texas authorities because of “issues in the home.”

On 14 May 2021, DHS filed a petition to terminate Trevino’s parental rights. The

circuit court convened a termination hearing on 10 August 2021. After receiving testimony

from the DHS caseworker and Trevino, the circuit court ruled that statutory grounds for

termination had been proved and that termination was in the children’s best interest. The

court entered its written order on August 20, and Trevino has timely appealed.

On appeal, Trevino asserts that the circuit court lacked subject-matter jurisdiction

because Arkansas was not the children’s home state as defined by the Uniform Child

Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Ark. Code Ann. §§ 9-

19-101 to -401 (Repl. 2020). 3 The UCCJEA provides the exclusive method for

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Trevino acknowledges that she never questioned the circuit court’s jurisdiction
below, but a challenge to subject-matter jurisdiction can be raised at any time, including for

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determining the proper forum in child-custody proceedings involving other jurisdictions.

Ark. Dep’t of Hum. Servs. v. Waugh, 2015 Ark. App. 155, 457 S.W.3d 286. A child-custody

proceeding under the UCCJEA includes proceedings for neglect, abuse, and termination of

parental rights. Ark. Code Ann. § 9-19-102(4).

An Arkansas court has jurisdiction to make an initial child-custody determination if

this state is the home state of the child on the date of the commencement of the proceedings.

Ark. Code Ann. § 9-19-201(a)(1). By definition of law, a “home state” is “the state in

which the child lived with a parent or a person acting as a parent for at least six (6)

consecutive months immediately before the commencement of a child-custody

proceeding.” Ark. Code Ann. § 9-19-102(7). An Arkansas court may also exercise

temporary emergency jurisdiction as described by § 9-19-204:

(a) A court of this state has temporary emergency jurisdiction if the child
is present in this state and the child has been abandoned or it is necessary in
an emergency to protect the child because the child, or a sibling or parent of
the child, is subjected to or threatened with mistreatment or abuse.

(b) If there is no previous child-custody determination that is entitled to
be enforced under this chapter, and a child-custody proceeding has not been
commenced in a court of a state having jurisdiction under §§ 9-19-201 — 9-
19-203, a child-custody determination made under this section remains in
effect until an order is obtained from a court of a state having jurisdiction
under §§ 9-19-201 — 9-19-203. If a child-custody proceeding has not been
or is not commenced in a court of a state having jurisdiction under §§ 9-19-
201 — 9-19-203, a child-custody determination made under this section
becomes a final determination, if it so provides and this state becomes the
home state of the child.

(c) If there is a previous child-custody determination that is entitled to be
enforced under this chapter, or a child-custody proceeding has been

the first time on appeal. See Bolden v. Ark. Dep’t of Hum. Servs., 2018 Ark. App. 218, 547
S.W.3d 129 (explaining that with the notable exception of matters involving subject-matter
jurisdiction, we will not consider an issue raised for the first time on appeal).
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commenced in a court of a state having jurisdiction under §§ 9-19-201 — 9-
19-203, any order issued by a court of this state under this section must specify
in the order a period that the court considers adequate to allow the person
seeking an order to obtain an order from the state having jurisdiction under
§§ 9-19-201 — 9-19-203. The order issued in this state remains in effect
until an order is obtained from the other state within the period specified or
the period expires.

(d) A court of this state which has been asked to make a child-custody
determination under this section, upon being informed that a child-custody
proceeding has been commenced in, or a child-custody determination has
been made by, a court of a state having jurisdiction under §§ 9-19-201 — 9-
19-203, shall immediately communicate with the other court. A court of this
state which is exercising jurisdiction pursuant to §§ 9-19-201 — 9-19-203,
upon being informed that a child-custody proceeding has been commenced
in, or a child-custody determination has been made by, a court of another
state under a statute similar to this section shall immediately communicate
with the court of that state to resolve the emergency, protect the safety of the
parties and the child, and determine a period for the duration of the temporary
order.

Arkansas Code Annotated section 9-19-209 describes how to inform the circuit court of

any other proceedings concerning the children:

(a) In a child-custody proceeding, each party, in its first pleading or in an
attached affidavit, shall give information, if reasonably ascertainable, under
oath as to the child’s present address or whereabouts, the places where the
child has lived during the last five (5) years, and the names and present
addresses of the persons with whom the child has lived during that period.
The pleading or affidavit must state whether the party:

(1) has participated, as a party or witness or in any other capacity, in any
other proceeding concerning the custody of or visitation with the child and,
if so, identify the court, the case number, and the date of the child-custody
determination, if any;

(2) knows of any proceeding that could affect the current proceeding,
including proceedings for enforcement and proceedings relating to domestic
violence, protective orders, termination of parental rights, and adoptions and,
if so, identify the court, the case number, and the nature of the proceeding;
and

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(3) 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 legal
custody or physical custody of, or visitation with, the child and, if so, the
names and addresses of those persons.

....

(d) Each party has a continuing duty to inform the court of any proceeding
in this or any other state that could affect the current proceeding.

Trevino asserts that the record shows she lived in Texas, that she had legal and

physical custody of the children, and that she was only driving through Arkansas when she

was stopped by law enforcement and the children were removed from her custody. The

children did not reside in Arkansas for six months prior to the opening of this case, and

under § 9-19-201(c), the children’s presence in the state was not sufficient to make a child-

custody determination. She does not dispute the circuit court’s ability to protect children

in an emergency situation, but she contends that Arkansas should have immediately sought

to transfer this case to Texas, as it was the children’s home state. Because Arkansas was not

the children’s home state, the circuit court lacked subject-matter jurisdiction.

In response, DHS notes that the only supporting evidence for Trevino’s argument

that Texas is the children’s home state is that she provided DHS with a Texas address on

the day of removal and that this address was included in subsequent orders. There was no

evidence that this address was really Trevino’s address or that she had been living there with

the juveniles for six consecutive months—a fact that is required for consideration as a “home

state” under the UCCJEA. Further, the circuit court exercised emergency jurisdiction in

this case under the UCCJEA, and because there was no evidence of any custody order from

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any other state demonstrating jurisdiction, the circuit court’s emergency jurisdiction

continued to the termination hearing.

DHS is correct that there is no evidence in the record indicating that another custody

order or current custody proceeding existed with respect to these children. No competing

custody order was ever identified in accordance with Ark. Code Ann. § 9-19-209. Trevino

does not contest that the circuit court had valid temporary emergency jurisdiction, and the

UCCJEA does not require a circuit court that has assumed temporary jurisdiction to return

custody to a parent where there is no competing custody order. Here, in the absence of

any competing custody order or petition in Texas or any other state, the provisions of Ark.

Code Ann. § 9-19-204(b) applied, and Arkansas then became the home state of the three

children. We hold that the circuit court did not err in continuing to exercise subject-matter

jurisdiction in this case and that such jurisdiction existed when the termination order was

entered.

Affirmed.

ABRAMSON and GRUBER, JJ., agree.

Jennifer Oyler Olson, Arkansas Commission for Parent Counsel, for appellant.

Ellen K. Howard, Ark. Dep’t of Human Services, Office of Chief Counsel, for

appellee.

Dana McClain, attorney ad litem for minor children.

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