in the Interest of O.L.R.M., Minor Child ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00681-CV
IN THE INTEREST OF O.L.R.M., Minor Child
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-10434
Honorable Antonia Arteaga, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: June 4, 2014
AFFIRMED
After the infant child, OLRM, was adopted, appellant, Brandon O., filed a petition to
adjudicate parentage. Appellee, Adoption Advocates, Inc., filed a plea to the jurisdiction and
request for the trial court to dismiss Brandon’s suit on the grounds that he lacked standing. The
trial court granted appellee’s motion and dismissed the case with prejudice. This appeal by
Brandon ensued. We affirm.
DISCUSSION
Brandon asserts he is an active serviceman seeking to establish paternity of his daughter
who was conceived, born, and adopted without his knowledge. He phrases his first issue as
whether “an active serviceman [has] standing to establish paternity post adoption despite [his]
04-13-00681-CV
failure to register with the Texas Paternity Registry?” 1 Brandon contends the Texas Paternity
Registry did not require him to register his and OLRM’s mother’s sexual encounter because he
had no “reasonable belief” a child would be born of the encounter.
The Texas Family Code “contains the general provisions governing the parent-child
relationship and suits affecting the parent-child relationship and thus is the starting point for
determining the rights of the parties to this suit.” In re H.C.S., 219 S.W.3d 33, 36 (Tex. App.—
San Antonio 2006, no pet.). Under the Family Code, “‘[a]lleged father’ means a man who alleges
himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose
paternity has not been determined.” TEX. FAM. CODE ANN. § 101.0015(a) (West 2014). The
general standing provision for suits affecting the parent-child relationship states that a suit may be
filed at any time by “a man alleging himself to be the father of a child filing in accordance with
Chapter 160, subject to the limitations of that chapter, but not otherwise . . . .” Id. § 102.003(a)(8);
see id. § 160.602(a)(3) (“a proceeding to adjudicate parentage [may] be maintained by . . . a man
whose paternity of a child is to be adjudicated”).
With exceptions that do not apply here, “a man who desires to be notified of a proceeding
for the adoption of or the termination of parental rights regarding a child that he may have fathered
may register with the registry of paternity: (1) before the birth of the child; or (2) not later than the
31st day after the date of the birth of the child.” Id. § 160.402(a). “The parental rights of a man
alleged to be the father of a child may be terminated without notice as provided by Section 161.002
if the man: (1) did not timely register with the bureau of vital statistics; and (2) is not entitled to
notice under Section 160.402 or 161.002.” Id. § 160.404; see also id. § 161.002(b)(3) (“The rights
1
Brandon also contends the “adoption code” allows for six months in which to challenge an adoption, and he acted
within that time period. Brandon provides no citation to the record or to any authority and offers no substantive
argument for this contention; therefore, this single sentence presents nothing for our review.
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of an alleged father may be terminated if . . . the child is under one year of age at the time the
petition for termination of the parent-child relationship or for adoption is filed and [the alleged
father] has not registered with the paternity registry under Chapter 160 . . . .”). The statute contains
no “reasonable belief” exception or requirement. Therefore, if Brandon wanted notice of any
adoption or termination proceeding as to OLRM, he was required to register.
Also, with exceptions that do not apply here, an original suit, even by the child’s father,
may not be filed “if the parent-child relationship between the child and every living parent of the
child has been terminated . . . .” Id. § 102.006(a)(2). In this case, the child’s mother executed an
irrevocable affidavit for voluntary relinquishment; her husband, the “presumed father,” executed
an affidavit of relinquishment; and another man, the alleged biological father, executed an
irrevocable waiver of interest. On March 8, 2013, the parent-child relationship between OLRM
and every living parent was terminated, and OLRM was placed with his adoptive parents, where
he remains to this date. Thus, Brandon did not have standing to bring his original suit under section
102.006.
Brandon also contends that because he is an active serviceman, “the Serviceman’s Act”
protects him from having his rights adjudicated without notice to him. Other than citing to the
Servicemembers’ Civil Relief Act (“the Act”), Brandon provides no citations to the record or
substantive argument in support of his contention. Under the Act, a trial court may vacate or set
aside a judgment
[i]f a default judgment is entered in an action covered by this section against a
servicemember during the servicemember’s period of military service (or within 60
days after termination of or release from such military service), the court entering
the judgment shall, upon application by or on behalf of the servicemember, reopen
the judgment for the purpose of allowing the servicemember to defend the action if
it appears that—
(A) the servicemember was materially affected by reason of that military service in
making a defense to the action; and
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(B) the servicemember has a meritorious or legal defense to the action or some part
of it.
50 U.S.C. app. § 521(g) (2008).
“The purpose of the Act is to prevent prejudice to the rights of a soldier because of his
inability to defend himself due to his military service; therefore, the statute should be liberally
construed.” Hawkins v. Hawkins, 999 S.W.2d 171, 175 (Tex. App.—Austin 1999, no pet.). Here,
no default judgment has been entered against Brandon, he does not explain how his military service
prevented him from making a defense, and he presents no meritorious or legal defense. Also, we
note that Brandon’s attorney stated at the hearing on the plea to the jurisdiction that Brandon had
been in Texas since September 2012. OLRM was born on February 15, 2013. See Hawkins, 999
S.W.2d at 175 (“We believe that the inability to obtain leave from military service in order to
conduct a proper defense is exactly the type of situation the Act was created to address. Other
courts have looked to the ability to obtain leave in determining whether the soldier has shown
prejudice by reason of military status.”). Finally, we do not construe the trial court’s March 8,
2013, termination order as a “default judgment” against Brandon because—having never
registered with the Texas Paternity Registry—he was not a party to that proceeding.
CONCLUSION
For the reasons stated above, we conclude the trial court did not err in determining Brandon
lacked standing to bring his original suit. 2 Therefore, we affirm the trial court’s Order of
Dismissal.
Sandee Bryan Marion, Justice
2
On appeal, Brandon raises three other complaints that we do not consider because they are inadequately briefed or
are not dispositive to this appeal. TEX. R. APP. P. 47.1.
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