This document discusses declaratory judgments and their use or lack thereof in family court cases involving unaccompanied minors. It notes that declaratory judgments cannot be used to alter or affect existing legal rights and relationships without due process. A declaratory judgment finding abuse, neglect or abandonment of a parent could negatively impact their rights and be grounds for termination of parental rights. As such, a declaratory judgment is generally not appropriate in family court cases where parental rights and the parent-child relationship are at issue. The document also discusses other procedural and ethical requirements around proper representation and protecting the integrity of the court.

1. Venturing into Family Courts –
SAPCR basics for the SIJS
attorney
Subtitle

2. DECLARATORY JUDGEMENTS

3. Declaratory Judgment
The Civil Practice and Remedies Code provides that the Texas
Declaratory Judgments Act is “remedial” only. Tex.Civ.Prac. &
Rem.Code § 37.002(b). That act serves only “to settle and to afford
relief from uncertainty and insecurity with respect to rights, status, and
other legal relations.” Id. “The purpose of the [declaratory judgment
statute], as evidenced by its own terms, is to declare existing rights,
status, or other legal relations.” Emmco Ins. Co. v. Burrows, 419
S.W.2d 665, 670 (Tex.Civ.App.—Tyler 1967, no writ) Dallas County
Tax Collector v. Andolina (App. 5 Dist. 2010) 303 S.W.3d 926 .The
statute cannot be invoked as an affirmative ground of recovery to revise
or alter such rights or legal relations. Id. Republic Ins. Co. v. Davis,
856 S.W. 2d 158. “A declaratory action cannot be used as an
affirmative ground of recovery to alter rights, status or
relationships”.O’Connors Texas Rules – Civil Trials, 2011, page 111.

4. • “The court does not have jurisdiction to
issue a declaratory judgment for parties
who are not before the court”. O’Connors
at p. 113 (referring to Brooks v. Northglen
Ass’n, 141 S.W. 3d 158, 162 (Tex. 2004).The
Court has to have jurisdiction over the
matter to decide the case. Id. referring to
Tex. Nat. Res. Conserv. Comm’n v. IT-Davy,
74 sw 3d 849, 855 (Tex.2002).

5. Claim or interest
• CPRC 37.006 (a) When declaratory relief
is sought, all persons who have or claim
any interest that would be affected by the
declaration must be made parties. A
declaration does not prejudice the rights of
a person not a party to the proceeding.

6. TROXEL et vir. v. GRANVILLE
certiorari to the Supreme Court of Washington
No. 99-138. Argued January 12, 2000--Decided June 5, 2000
• The Fourteenth Amendment's Due Process
Clause has a substantive component that
"provides heightened protection against
government interference with certain
fundamental rights and liberty interests,"
Washington v. Glucksberg, 521 U. S. 702,
720, including parents' fundamental right to
make decisions concerning the care, custody,
and control of their children, see, e.g.,
Stanley v. Illinois, 405 U. S. 645, 651. Pp. 5-
8.

7. So the argument goes, we are not
affecting the rights of the parents?
• NO? Consider the effects of a finding that a
parent has abused, neglected or abandoned
the child?
• 153.004 (b) the court may not appoint joint
managing conservators if credible evidence is
presented of a history or pattern of past or
present child neglect, or physical or sexual
abuse by one parent directed against the
other parent, a spouse or a child, including a
sexual assault.

8. Also consider that it could be basis for ground
for terminating parent-child relationship
• Texas Family Code 161.001 Involuntary termination of
parent-child relationship
• (1) the parent has:
– (A) voluntarily left the child alone or in the possession of another
not the parent and expressed an intent not to return;
– (B)……without providing for the adequate support of the child,
and remained away for a period of at least three months;
– (C) Voluntarily left the child alone or in the possession of another
without providing adequate support of the child and remained
away for a period of at least six months.
– (D) Knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or
emotional well-being of the child:
– (E) Engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endagers….

9. 161.001 Continued
• (F) failed to support the child in accordance with the parent’s ability during a
period of one year ending within six months of the date of the filing of the
petition;
• (J)been the major cause of:
– (i) the failure of the child to be enrolled in school…
– (ii) the child’s absence from the child's home without the consent of the parents or
guardian for a substantial length of time or without the intent to return
• (L) Been convicted of (Murder, capital murder, manslaughter, indecency
with a child, assault, sexual assault, aggravated assault, aggravated sexual
assault, injury to a child, abandoning or endangering child, sexual
performance by a child, possession or promotion of child pornography,
continuous sexual abuse of a child…)
• (P) used a controlled substance.. In a manner that endangered the health or
safety of the child…
• (Q) knowingly engaged in criminal conduct that has resulted in the parent’s
– conviction and confinement for not less that 2 years…
• (T) Been convicted of murder, criminal attempt, or criminal solicitation (even
convictions in foreign count

10. So, if the declaratory judgment has the
necessary finding of abuse or neglect or
abandonment by one or both parents as
required for immigration how does it fit into
usage in the family courts?
The Answer? It does not. It does not
comply with due process, it directly
affects a parent’s rights, relationship and
interest in their child without giving the
parents notice and an opportunity to be
heard as required by law

11. Is there anytime when a
declaratory judgment might work?
• Not really, even if both parents deceased, you still have to consider
the mandates of the USCIS which states that:
– USCIS must determine that the juvenile court order was sought
primarily to obtain relief from abuse, neglect or abandonment,
rather than primarily to obtain an immigration benefit.
– Using a Declaratory Judgment can have no other purpose than to
obtain immigration benefit because it does not create a court of
continuing jurisdiction and since it affects the rights of others who
are not receiving service it creates a void judgment.
• The order declares the child dependent on the court, or legally
commits or places the child under the custody of either a state
agency or department or an individual or entity appointed by a
juvenile court.
– A Declaratory Judgment does NOT create a court of continuing
jurisdiction for the child. It does NOT make the child dependent on the
Court or an individual appointed by the Court.

12. Ethical Client Representation
Duty to the Court

13. • II. Lawyer To Client A lawyer owes to a client allegiance, learning, skill, and
industry. A lawyer shall employ all appropriate legal means to protect and
advance the client’s legitimate rights, claims, and objectives. A lawyer shall not
be deterred by any real or imagined fear of judicial disfavor or public
unpopularity, nor be influenced by mere self-interest. 1. I will advise my client of
the contents of this creed when undertaking representation. 2. I will endeavor to
achieve my client’s lawful objectives in legal transactions and in litigation as
quickly and economically as possible. 9. I will advise my client that we will
not pursue any course of action which is without merit.
• Lawyer And Judge Lawyers and judges owe each other respect,
diligence, candor, punctuality, and protection against unjust and
improper criticism and attack. Lawyers and judges are equally
responsible to protect the dignity and independence of the Court
and the profession. 1. I will always recognize that the position of judge
is the symbol of both the judicial system and administration of justice. I
will refrain from conduct that degrades this symbol. 2. I will conduct
myself in Court in a professional manner and demonstrate my respect
for the Court and the law. 6. I will not knowingly misrepresent,
mischaracterize, misquote, or miscite facts or authorities to gain an
advantage.

14. Who can file for custody of the
unaccompanied minor?
• Texas Family Code 102.003 General
Standing to file suit
– A parent of the child
– A person, other than a foster parent who has
had actual care, control and possession of the
child for at least six months ending not more
than 90 days preceding the date of the filing
of the petition.
– See handout for others with standing to file
suit

15. Contents of Petition
• It must include the child’s full name not just the initials and
the child’s date of birth – this includes the style of the case –
this is an exception to the E-filing rules.
• The petition must state that the court has jurisdiction
• The names of the parents must be included
• The names of the managing conservator or guardian if one
has been appointed
• The name of an alleged father or statement that the identity of
the father of the child is unknown
• Statement regarding value of property owned by child
• Statement regarding what you want court to do and the
grounds for doing it
102.008

16. Citation (TFC 102.009)
• You must serve the following person with citation or obtain a waiver
of service:
– Managing conservator;
– Possessory conservator;
– Person having possession of or access to the child under a court order;
– Guardian of the person and/or estate of child;
– Each parent who has not had rights terminated;
– An alleged father unless there is a waiver of interest attached
– Title IVD agency if the petition requests the termination of the parent-
child relationship and child support rights have been assigned to IVD
agency
– Prospective adoptive parents
– A person designated as the managing conservator in an unrevoked
affidavit of relinquishment
– Citation may be served on any other person who has or who may
assert an interest in the child

17. How does the court have
jurisdiction over a parent who has
never been to the United States?
• 102.011 – generally one of these will be the
basis for long arm jurisdiction
– The person is personally served in Texas;
– The person submits to the jurisdiction of this state
by consent, by entering a general appearance, or
by filing a responsive document having the effect
of waiving any contest to personal jurisdiction;
– THE CHILD RESIDES IN THIS STATE AS THE
RESULTSOF THE ACTS OR DIRECTIVES OF
THE PERSON

18. Status jurisdiction versus personal
jurisdiction
• Even if the court says it does not have
personal jurisdiction over the parent who
remains in the home country the court can
still exercise partial jurisdiction over
custody issue but not child support.
102.012

19. What other factors determine if
court has jurisdiction to hear case
• 152.201 – this state 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 6 months before
the commencement of the proceeding and the child is
absent from this state but a parent or person acting as
a parent continues to live in this state; or
• 2. a court of another state does not have jurisdiction
under subdivision 1 AND the child and the child’s
parents or at least one parent or a person acting as a
parent have significant connections to this state other
than mere physical presence; and substantial
evidence is available concerning the child’s care,
protection, training and personal relationships

20. Temporary emergency jurisdiction
• 152.204 A court of this state has
emergency temporary 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, or a
sibling or parent of the child, is subjected
to or threatened with mistreatment or
abuse.

21. Okay so now I know the court has jurisdiction and I
know what I have to put in pleading – what else do
I need?
• You must file a statement of health insurance availability – even if there is
no availability
• You must do a UCCJEA affidavit. This affidavit, required under 152.209,
must state the child’s present address or whereabouts, the places where
the child has lived for the last five years, and the names and present
addresses of the persons with whom the child has lived during that period.
– It also must state whether the party in capacity as a party or witness has participated
in any custody proceedings and if so identify the court and case number
– Or if the party knows of any other 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
– 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
– IMPORTANT – if a party alleges in an affidavit or a pleading under oath that the
health, safety or liberty of the party or child would be jeopardized by disclosure of
identifying information, the information must be sealed and may not be disclosed to
the other party or the public unless ordered by the court

22. Okay now in my petition I asked for custody but
what type do I ask for?
• Since all the children will either be victims of
trafficking, child abuse or neglect or abandonment the
appropriate request is for sole managing
conservatorship.
• 153.004 - you need to be very familiar with this
provision so I have handouts for you. Specifically the
court may not allow a parent to have access to a child
for whom it is shown by a preponderance of evidence
that there is a history or pattern of committing family
violence during the two years preceding the date of
the filing of the suit or during the pendency of the suit
OR the parent engaged in conduct that constitutes an
offense under various sections of the penal code.

23. Now I filed my pleading – how do I
get him/her served?
• If you are lucky you can get him or her to sign a waiver and
relieve you of having to get service. I translate all of my
pleadings and the waiver and then ask the absent parent to
sign the English waiver. In Honduras this costs about $25.00,
in Mexico it can be cost prohibitive as it can cost
approximately $300 to have a waiver signed
• Be very careful when drafting waiver to make sure you say
that the person waives all rights and waives notice of future
proceedings. Otherwise you may have to get them to sign off
on final order and/or send them notice of final hearing date
• Another alternative is having the parent file an answer with
the court
• DO NOT HAVE WAIVER SIGNED BEFORE YOU FILE
PETITION

24. If your child were involved in a custody suit in another
country and you received no notice of process, how would
you feel? Would you feel your rights were violated?
• It is for this reason that the United States entered into
treaties with various countries regarding valid service
of process. The following North and Central American
Countries are members of the Hague convention –
Mexico, Panama, Costa Rica
• Belize, Guatemala, Honduras, El Salvador, and
Nicaragua are contracting countries
• You have to see if the country you need to serve the
other party in is a member of the Hague Service
Convention, the Apostille Convention or if they are
members of the Interamerican Letters so that you will
know what they consider valid service on one of their
citizens

25. International Certified Mail
• If you are not getting a judgment against
the other country’s citizen (i.e. child
support) then the argument has been
made that you can still serve the other
party via International Certified Mail. It is
not however the best practice to do this
and could subject your final order to being
set aside.

26. What if we don’t know if other parent is alive
or what if we cannot locate parent for
service?
• If you cannot locate the other parent you can try for alternative
service by filing the appropriate motion for alternative service
(publication)and a motion for appointment of attorney ad litem
to locate missing parent. If you have to do this save yourself
some money on costs and do a thorough due diligence
search ahead of time and give your notes to ad litem so they
don’t have to start from scratch. YOU CANNOT JUST DO A
POSTING WHEN CHILDREN ARE INVOLVED.
• Alternate argument that parent is not alive even if you do not
have death certificate could be made if it you can meet
statutory presumption of death. CRPC section 133.001
Texas Property Code Section 71.004, Texas Estate Code
454.001

27. The immigration court has put me on a
rocket docket and I need orders ASAP
• File for temporary orders hearing – that is set
within 14 days of filing petition but you can also set
it further out if you do not think you will have
service within 14 days. You do not need to file a
TRO unless there is a threat of the other parent
coming to the state and taking the child.
• Once you have a temporary orders hearing you
can ask the court to issue the findings you need
• Also note once you have the person served you
can finalize case quickly – 20 days plus the first
Monday following service.

28. Do I need to have ad litem
appointed for child?
• In most instances you do not. If you are
doing a termination/adoption you will need
one appointed for child. But most
SAPCR’s (Custody cases) do not require
appointment and it is an unnecessary
expense.

29. Translators
• The courts are required to appoint
translators. However, as that can be very
expensive to the county, many Tarrant
County judge’s will permit you to translate
for your client. Call ahead of time or visit
judge to find out if you will be required to
have a certified translator. If so, file the
motion for appointment of a translator.

30. Preparing final pleadings and
proving up case
• You will need to prepare a final order in Suit Affecting
Parent Child Relationship. In that order you will need
to make sure you have the requisite findings:
– The child is living in the U.S.
– The child is under 21 years of age
– The child is unmarried
– Reunification with one or both parents is not viable due to
abuse, neglect, abandonment or similar basis
• For immigration purposes this finding should include the factual
basis for the finding
– That it is not in the best interest of the child to be returned
to the child’s or parent’s previous country of nationality or
country of last habitual residence

31. Arguing similar basis
Provisions for defining abuse or neglect
according to CPS are found in section
261.001 and 261.401. A separate hand out
is available to aid you in arguing similar
basis if necessary. Most of these provision
would fall under the standard argument for
abuse or neglect but some of the provisions
may give you what you need for similar
basis.

32. The final hearing/prove up
• Make sure to have prove – up questions prepared
• Have at least 2 copies of final order plus original for court.
(after hearing get the copies certified)
• The night before or morning of the hearing file a certificate of
last known address for opposing party
• Have an Austin form filled out. If you do not know the answer
to something DO NOT LEAVE IT BLANK write in unknown
• Only if doing child support will you need a withholding order or
a Tarrant County Record of Support Form
• The morning of court, get there before 8:30 because you will
have to pull the file and take it to the bailiff of the court and let
him know you would like to do a prove up. If the judge is
unavailable for prove ups on that day you can go to a different
Judge.

33. Required to Report
• Don’t forget that even though you are trying to get
child status with parent, if you know that parent is
abusing child or have reason to know that the
parent is abusing or neglecting child, you have a
duty to report the child abuse. The report must be
made within 48 hours of the time you come into
the knowledge. Failure to report is a violation of
the penal code. The Texas Family Code (TFC)
Chapter 261, Texas Education Code (TEC)
§38.004 and §38.0041, and Texas Administration
Code (TAC) §61.1051 govern mandatory child
abuse and neglect reporting

34. • Sec. 261.101. PERSONS REQUIRED TO REPORT; TIME TO REPORT. (a) A person having cause to
believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by
any person shall immediately make a report as provided by this subchapter.
• (b) If a professional has cause to believe that a child has been abused or neglected or may be abused
or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the
professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401,
the professional shall make a report not later than the 48th hour after the hour the professional first
suspects that the child has been or may be abused or neglected or is a victim of an offense under
Section 21.11, Penal Code. A professional may not delegate to or rely on another person to make the report.
In this subsection, "professional" means an individual who is licensed or certified by the state or who is an
employee of a facility licensed, certified, or operated by the state and who, in the normal course of official
duties or duties for which a license or certification is required, has direct contact with children. The term
includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that
provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.
• (b-1) In addition to the duty to make a report under Subsection (a) or (b), a person or professional shall make
a report in the manner required by Subsection (a) or (b), as applicable, if the person or professional has
cause to believe that an adult was a victim of abuse or neglect as a child and the person or professional
determines in good faith that disclosure of the information is necessary to protect the health and safety of:
• (1) another child; or
• (2) an elderly or disabled person as defined by Section 48.002, Human Resources Code.
• (c) The requirement to report under this section applies without exception to an individual whose
personal communications may otherwise be privileged, including an attorney, a member of the
clergy, a medical practitioner, a social worker, a mental health professional, an employee or member
of a board that licenses or certifies a professional, and an employee of a clinic or health care facility
that provides reproductive services.

35. Don’t confuse the court
• There is no need to bring up the SIJS in court and
if you do you are likely to confuse the court and
hurt your case. You are there for custody. If you
bring up SIJS the judge may think you are trying to
get the judge to decide an immigration issue!
• SIJS: What Adoption and Family Law
Attorneys Need to Know and How They can
Help, American Academy of Adoption Attorneys
and American Academy of Assisted Reproductive
Technology Attorneys, Karen Law and Emily
Dudak Taylor, November 5, 2014.

36. Venturing into Family Courts –
SAPCR basics for the
immigration attorney
You don’t have to ride the train into the unknown
ask a mentor to walk you through the process