in Re Kelsi M. Baggett ( 2014 )

Opinion filed September 30, 2014
In The
Eleventh Court of Appeals
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No. 11-14-00213-CV
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IN RE KELSI MICHELLE BAGGETT
Original Mandamus Proceeding
MEMORANDUM OPINION
Relator, Kelsi Michelle Baggett, has brought a mandamus action against the
Honorable Carter T. Schildknecht, Judge of the 106th District Court of Gaines
County, Texas. This original proceeding arises out of a suit affecting the parent-
child relationship filed by the real party in interest, Ricky Therwhanger. Baggett
alleges that the trial court erred when it denied her motion to dismiss for lack of
jurisdiction and her motion for summary judgment, when it excluded public record
and vital-statistics evidence, and when it granted Therwhanger an exception to the
statute of limitations. Specifically, Baggett petitions this court for a writ of
mandamus instructing the trial court to vacate its order for genetic testing. Baggett
claims that Therwhanger failed to bring his suit within the four-year statute of
limitations period.
In reviewing a petition for writ of mandamus, we look to whether the trial
court committed a clear abuse of discretion and, if so, whether there is an adequate
remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
Generally, the Family Code prohibits a person from bringing a suit to adjudicate
parentage outside the four-year statute of limitations when a child has a presumed,
acknowledged, or adjudicated father. TEX. FAM. CODE ANN. §§ 160.607(a),
160.609(b) (West 2014). However, when a child does not have a presumed,
acknowledged, or adjudicated father, there is no time limitation for a person to file
suit. Id. § 160.606. A party must be entitled to maintain a suit to adjudicate
parentage before a trial court can order genetic testing. In re Rodriguez, 248
S.W.3d 444, 450–51 (Tex. App.—Dallas 2008, orig. proceeding). Once the
genetic testing is ordered and the results are released, the harm cannot be undone
and, thus, there is no adequate remedy at law. Id. at 454.
Here, Baggett claimed that the child had an acknowledged father and that
Therwhanger did not file suit within the required time limit. After reviewing the
record, we find that Baggett did not present admissible evidence to show that the
child had an acknowledged father. During the hearing on Baggett’s motion to
dismiss and motion for summary judgment, Baggett offered into evidence an
acknowledgement of paternity, which she had obtained from the hospital.
Therwhanger objected on the ground that it was hearsay and not properly
authenticated under the business records exception. See TEX. R. EVID. 803(6). The
trial court sustained Therwhanger’s objection. Baggett did not attach the
acknowledgement to her motion to dismiss or her motion for summary judgment,
nor did she file a business records affidavit fourteen days before the hearing as
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required under TEX. R. EVID. 902(10) as it existed at the time. 1 Furthermore,
Baggett did not offer a certified copy of the acknowledgment from the bureau of
vital statistics. See TEX. R. EVID. 803(8), 803(9), 902(4); see also FAM.
§§ 160.301–.313. The trial court did not permit Baggett to testify from the
unauthenticated acknowledgment; thus, Baggett was unable to establish that the
child had an acknowledged father.
Because Baggett failed to establish that the child had a presumed,
acknowledged, or adjudicated father, she failed to prove that Therwhanger was
required to file suit within the four-year statute of limitations. See FAM. § 160.606.
Therefore, the trial court did not err when it denied Baggett’s motion to dismiss
and her motion for summary judgment and when it ordered genetic testing.
We deny Relator’s petition for writ of mandamus.
PER CURIAM
September 30, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
1
We note that Rule 902(10), which relates to self-authentication, has recently been amended to
delete the requirement that a business record accompanied by an affidavit be filed with the trial court
prior to trial. The amendment applies only to cases filed after September 1, 2014.
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