Terminology: Paternity suits | Petition to Adjudicate Parentage | order establishing parent-child relationship for all purposes | SAPCR | Suit Affecting the Parent-Child Relationship | Motion to Modify | genetic testing | determination of paternity | paternity registry | nonpaternity | biological father | birth mother | disestablishing paternity | acknowledgment of paternity | rescission of acknowledgment | affidavit of relinquishment | termination of father's parental rights | adoption | step- parent adoption | married | unmarried | marital | nonmarital | denial of paternity | presumption of paternity | marital presumption | non-paternity | Recent Cases from Houston Courts of Appeals Alexander v. Johnson (pdf) (Tex.App.- Houston [14th Dist.] Jan. 5, 2010)(Hedges) (denial of bill of review relief affirmed, challenge to paternity, genetic testing) (procedure and deadline for revocation, rescission of acknowledgement of paternity) Appellant, Larry Alexander, appeals from an order denying his petition for bill of review to set aside a default order in a suit affecting the parent-child relationship (“default SAPCR order”). The default SAPCR order appointed appellant possessory conservator of J.A., a child, and ordered appellant to pay child support. In two issues, appellant contends that he was entitled to bill-of-review relief because he was fraudulently induced to sign an acknowledgment of paternity (“AOP”), preventing him from presenting a meritorious defense to the trial court’s default SAPCR order. AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Seymore and Sullivan 14-08-00778-CV Larry Alexander v. Tiffany Johnson Appeal from 311th District Court of Harris County Statute of Limitations Applies to Rebuttal of Presumed Paternity In Interest of G.T.S. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Jennings) (paternity proceedings to rebut presumption of paternity and establish other man's paternity barred by limitations, equitable estoppel theory not properly presented) AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Jennings Before Justices Jennings, Higley and Sharp 01-09-00212-CV In the Interest of G. T. S., a child Appeal from 173rd District Court of Henderson County Trial Court Judge: Judge Dan Moore Common law husband not entitled to parental presumption once court-ordered paternity tests prove he is not biological father In Interest of XCB (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Anderson) (termination of parental rights, nonbiological father figure, common law marriage to mother, best interest factors, failure to preserve constitutional arguments for appeal) AFFIRMED: Opinion by Justice Anderson Before Justices Anderson, Guzman and Boyce 14-08-00851-CV In the Interest of X.C.B., AKA X.C, I.C.B., AKA I.C., S. B.C., and J.W.C AKA J. W. W. Appeal from 315th District Court of Harris County Brown challenges the trial court's order of genetic testing. A proceeding to adjudicate parentage is governed by the Uniform Parentage Act. See Tex. Fam. Code Ann. §§ 160.001-160.707 (Vernon 2008). Section 160.601 specifically authorizes the DFPS to bring suit to adjudicate the parentage of a child. Tex. Fam. Code Ann. § 160.601. Once genetic testing is conducted and the results released for use in a proceeding to determine parentage, any resulting harm cannot be undone. In re Attorney Gen. of Tex., 272 S.W.3d 773, 777 (Tex. App.- Dallas 2008, orig. proc.) (holding there is no adequate remedy at law for the harm respecting erroneously ordered genetic testing, and mandamus relief is appropriate). Therefore, once Brown submitted to genetic testing, his complaint that the order for testing was erroneous became moot. Brown's first issue is overruled. Court of Appeals throws out trial court's finding of unconsitutionality of paternity registry statute In Re CMD (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Yates) (paternity, nonpaternity, adoption: constitutionality of paternity registry statute) Decision: TRIAL COURT REVERSED AND CASE AND REMANDED: Opinion by Justice Leslie Brock Yates Panel members: Before Chief Justice Hedges, Justices Brock Yates and Guzman 14-08-00113-CV In Re C.M.D. Appeal from 328th District Court of Fort Bend County Based on [the evidence in the record], we cannot agree with the trial court's determination that a constitutional violation has been established. An unwed father does not automatically have full constitutional paternal rights by virtue of a mere biological relationship. See Lehr v. Robertson, 463 U.S. 248, 261-62 (1983); In re J.W.T., 872 S.W.2d 189, 198 (Tex. 1994). Rather, he must, early in the child's life, take some action to assert those rights. See Lehr, 463 U.S. at 261-62; In re J.W.T., 872 S.W.2d at 198. Based on the mother's affidavit, she called to tell the father that she was pregnant and then again after she had the baby, but he offered no assistance, never contacted her again, and disconnected his phone numbers. If the father had no intent to assert his parental rights, he could not have suffered a due process or equal protection violation based on a deprivation of those rights. The mother's affidavit evidence is uncontroverted, but even if the trial court did not credit it, that leaves no evidence one way or the other about the father's knowledge, circumstances, or desires. An absence of evidence cannot overcome the presumption of constitutionality. See Valero, 203 S.W.3d at 563 (rejecting constitutional challenge because appellant did not bring forth evidence regarding his circumstances); see also Walker, 111 S.W.3d at 66 (stating we are to presume statute is constitutional); cf. Atmos Energy Corp. v. Abbott, 127 S.W.3d 852, 857 (Tex. App.- Austin 2004, no pet.) ("A court cannot pass on the constitutionality of a statute unless the facts have matured, forming the concrete basis against which the statute may be applied"). Unlike other reported cases challenging the constitutionality of paternity registry statutes, we have no complaining father.[3] That he (or another father) could possibly be aggrieved is not a proper basis to declare the paternity registry statute unconstitutional in this case, either as applied or on its face. See M.V.S. v. V.M.D., 776 So. 2d 142, 145, 151 (Ala. Civ. App. 1999) (rejecting equal protection and due process challenges to paternity registry statute because putative father had notice of adoption proceedings and thus the constitutional argument did not apply to him); see also Santikos, 836 S.W.2d at 633; Meshell, 739 S.W.2d at 205; Ex Parte Dave, 220 S.W.3d at 156. Without evidence of an actual injury in the case before it, the trial court erred in declaring the paternity registry statute unconstitutional. Therefore, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion. Any "father" better than none? - Paternity Test Results Suppressed In re OAG (Tex.App- Houston [1st Dist.] Dec 11, 2008)(Taft) Taft)(bill of review, prior factually false paternity adjudication upheld, parentage proceeding) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Taft Before Justices Taft, Keyes and Alcala 01-08-00670-CV In re The Office of the Attorney General of Texas Appeal from 310th District Court of Harris County Trial Court Judge: Hon. Lisa Millard AG appeals nonpaternity adjudication In Interest of SRB (Tex.App.- Houston [14th Dist.] July 24, 2008)(Seymore) (parentage, nonpaternity) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore Before Justices Fowler, Frost and Seymore 14-06-00864-CV In the Interest of S.R.B Appeal from 246th District Court of Harris County Trial Court Judge: Jim York AG loses appeal from summary judgment favoring alleged father In the Interest of KRS (Tex.App.- Houston [14th Dist.] June 24, 2008)(Yates) (paternity, nonpaternity, failure to present error in opening brief proves fatal to appeal, rule enforced) AFFIRMED: Opinion by Justice Brock Yates Before Justices Brock Yates, Guzman and Brown 14-07-00080-CV In the Interest of K.R.S., a child Appeal from 306th District Court of Galveston County Trial Court Judge: Janis Louise Yarbrough Stamper v. Knox (Tex.App.- Houston [1st Dist.] Mar. 20, 2008)(Keyes) (family law, presumption of paternity, nonpaternity, DNA testing, equitable estoppel) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Keyes 01-06-00875-CV Michelle Stamper f/k/a Michelle Knox v. Stanley Keith Knox Appeal from 306th District Court of Galveston County Trial Court Judge: Hon. Janis L. Yarbrough Concurring Opinion by Justice Jennings in Stamper v. Knox Bill of Review Suit Fails Thomas v. Thomas (Tex.App.- Houston [14th Dist.] Aug. 23, 2007)(Seymore) (bill of review denied, divorce, nonmarital child) AFFIRMED: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-06-00069-CV William Robert Thomas v. Patricia Russell Thomas Appeal from 245th District Court of Harris County (Judge G. Annette Galik) Bio Dad of Child Born from Adultery Succeeds in Appeal of Retroactive Child Support Order and Denial of All Visitation Miles v. Peacock and OAG (Tex.App.- Houston [1st Dist.] Apr. 19, 2007)(Bland) (paternity, restricted appeal) This case illustrates the perils of not answering and not appearing for trial. Mother and attorney general won a default judgment for $24,000 in retroactive child support, current support of $1,000 per month, life insurance coverage for the benefit of the child, health insurance, and an order denying the biological father all visitation. The child had been born of an adulterous affair and thus had a presumed father. Wife- Mother waited until child was a teen before going after the biological father. The Court of Appeals found Bio Dad had waived the statute of limitations defense that applies under such circumstances by failing to plead it (he failed to file an answer), and held that admission of paternity test results was proper because the mother's husband had asked for them. Affirming the judgment of paternity, the Court, in an opinion by Justice Jane Bland, reversed the award of child support and the denial of all access because no evidence was presented on the father's income and other relevant factor. Likewise, no evidence was presented that a deviation from the standard possession order was warranted and in the child's best interest. The court's opinion points out that the relevant facts must be proven in family law case to support default judgment, which differs from the confession of judgment rule in other civil cases. Terms: family law, parentage, adjudication of paternity, restricted appeal, default judgment, retroactive child support, paternity, presumed father, statute of limitations defense] AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Bland (Before Chief Justice Radack, Justices Jennings and Bland) 01-06-00313-CV In The Matter of the Marriage of Bridget Peacock and Carnell Peacock Appeal from 247th District Court of Harris County (Judge Bonnie Hellums) We conclude that Miles has waived any statute of limitations defense and therefore affirm that portion of the trial court’s judgment adjudicating his paternity of N.S.P. With respect to the portions of the judgment awarding child support and denying possession, we conclude that insufficient evidence supports the trial court’s findings and therefore reverse and remand for further proceedings. |
| Family Court Case Law: Paternity and Nonpaternity from the Houston Courts of Appeals |
