in the Interest of L.M.R., a Child ( 2022 )

NUMBER 13-21-00279-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF L.M.R., A CHILD
On appeal from the 332nd District Court
of Hidalgo County, Texas.
OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Opinion by Chief Justice Contreras
Appellant J.R.R. (Jordan) 1 appeals the trial court’s order granting appellee J.C.F.
(Frank)’s petition to adjudicate parentage, which Frank brought to establish a father-child
relationship with L.M.R. (Lucy). Jordan was Lucy’s presumed father, and Frank filed this
suit over one year after Lucy’s fourth birthday. When a child has a presumed father and
1 To preserve the privacy of the child, we identify the parties by pseudonyms. See TEX. FAM. CODE
ANN. § 109.002(d); TEX. R. APP. P. 9.8.
is over the age of four, § 160.607 of the Texas Family Code bars suits adjudicating
parentage, with only two exceptions. See TEX. FAM. CODE ANN. § 160.607(b). By a single
issue, which we address as two issues, Jordan argues that the trial court erred in
concluding (1) that one or both of the statutory exceptions apply or (2) that applying
§ 160.607 in this case violated Frank’s Fourteenth Amendment rights under the United
States Constitution. We reverse and render judgment.
I. BACKGROUND 2
Jordan and L.G. (Dina), Lucy’s mother, were married when Lucy was born in May
2014. In late October 2014, Dina and Jordan separated. In August 2015, Dina and Frank
began cohabiting. In October 2015, Dina and Jordan filed for divorce, and the divorce
was granted in August 2016. Four children were born during Jordan and Dina’s marriage,
and the divorce order provided for visitation between Jordan and each of the children.
Dina was granted the exclusive right to designate the children’s residence, and they now
reside with Dina and Frank—who, at some point before suit was filed, married.
In September 2019, Frank filed his petition to adjudicate parentage after he took a
DNA test indicating a 99.96% probability that he was Lucy’s biological father. Jordan filed
his answer conceding that, based on the DNA test results, Frank was likely Lucy’s
biological father, but arguing among other things that “[Frank] is precluded from seeking
an adjudication of parentage because [Frank]’s claim is untimely and barred by Texas
Family Code § 160.607(a).” Frank responded with a brief in support of his petition, arguing
that his federal constitutional rights as a parent are infringed upon by the statutory
2 No testimony was taken in this case. The parties stipulated to certain relevant facts by agreement,
which the trial court approved. The background is adapted from the stipulated facts.
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requirement that his suit be brought before Lucy’s fourth birthday. The trial court set a
final hearing on the petition for May 17, 2021. No testimony was taken at the hearing
beyond arguments by counsel, and the trial court requested further briefing on the
exceptions to the four-year limitations period, which counsel for both parties subsequently
filed.
In its August 30, 2021 “Order Adjudicating Parentage,” the trial court ruled, among
other things, that Frank “is declared the father of [Lucy]” and that “the father-child
relationship is established between [Lucy] and [Frank] for all purposes.” Jordan then
timely filed his notice of appeal.
II. UNIFORM PARENTAGE ACT
Jordan argues that the trial court erred by granting Frank’s petition because the
statute of limitations had passed, no statutory exception applied, and Texas Family Code
§ 160.607 is constitutional. Frank argues that a statutory exception applied, or
alternatively, that the statute violates his Fourteenth Amendment rights under the United
States Constitution.
A. Standard of Review
We review a trial court’s order in a proceeding to adjudicate parentage for abuse
of discretion. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.]
2008, no pet.) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)).
A trial court abuses its discretion when it acts “without reference to any guiding rules or
principles; in other words, whether the act was arbitrary or unreasonable.” Worford, 801
S.W.2d at 109. To determine whether the trial court abused its discretion, we review the
“evidence in a light most favorable to the court’s decision and indulge every legal
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presumption in favor of its judgment.” In re J.I.Z., 170 S.W.3d 881, 883 (Tex. App.—
Corpus Christi–Edinburg 2005, no pet.). A trial court does not abuse its discretion if there
is some evidence of a substantive and probative character to support its decision. In re
R.T.K., 324 S.W.3d 896, 900 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); In re
M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no pet.).
Where, as here, no findings of fact and conclusions of law are filed, “all facts
necessary to support the judgment and supported by the evidence are implied.” Retamco
Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). We must
uphold the trial court’s judgment “on any legal theory before it, even if the court gives an
incorrect reason for its judgment.” Guar. Cnty. Mut. Ins. v. Reyna, 709 S.W.2d 647, 648
(Tex. 1986); Miramar Petroleum, Inc. v. Cimarron Eng’g, LLC, 484 S.W.3d 214, 217 n.2
(Tex. App.—Corpus Christi–Edinburg 2016, pet. denied).
B. Applicable Law
The Fort Worth Court of Appeals recently addressed the subject at issue in this
case and cogently explained the relevant law as follows:
A “parent-child relationship” in Texas means the legal relationship between
a child and the child’s parent as provided under chapter 160 of the family
code. See TEX. FAM. CODE ANN. § 101.025. Once established, this legal
relationship confers numerous rights and duties upon a child’s parents. See
id. § 151.001. For example, a child’s parent has the right to have physical
possession of the child, to direct the child’s moral and religious training, to
make decisions concerning the child’s education, and to designate the
residence of the child. Id. § 151.001(a)(1), (10). A parent also has the right
to represent the child in a legal action and to make other decisions of
substantial significance concerning the child. Id. § 151.001(a)(7). A child’s
parent has the right to inherit from and through the child and generally has
the right to the services and earnings of the child. Id. § 151.001(a)(5), (9).
The list goes on. See id. § 151.001.
The duties of a parent are similarly vast. A child’s parent has the duty of
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care, control, protection, and reasonable discipline of the child. Id.
§ 151.001(a)(2). A parent has the duty to support the child, a duty that
includes providing the child with clothing, food, shelter, medical and dental
care, and an education. Id. § 151.001(a)(3). A parent also generally has the
duty to manage the estate of the child. Id. § 151.001(a)(4). And there are
more. See id. § 151.001.
The parent-child relationship includes the mother-child relationship and the
father-child relationship. See id. §§ 101.024(a), .025, 160.102(11), .201.
[Frank] desire[d] to establish the latter between himself and [Lucy], thereby
placing in [Frank] all the rights and duties of a parent as described above.
A father-child relationship can be established between a man and a child in
the following ways:
(1) an unrebutted presumption of the man’s paternity of the
child under Section 160.204;
(2) an effective acknowledgment of paternity by the man
under Subchapter D, unless the acknowledgment has
been rescinded or successfully challenged;
(3) an adjudication of the man’s paternity;
(4) the adoption of the child by the man; or
(5) the man’s consenting to assisted reproduction by his wife
under Subchapter H, which resulted in the birth of the
child.
Id. § 160.201(b). The first and third means are in play here. Under the first
means, a father-child relationship between a man and a child can be
established by presumption under several circumstances, including if the
man was married to the child’s mother when the child was born. Id.
§ 160.204(a)(1). That is what happened here: [Jordan] was married to
[Dina] when she gave birth to [Lucy]. Thus, the law presumes that [Jordan]
is [Lucy]’s father. See id.
But [Frank] alleges that he, not [Jordan], is [Lucy]’s biological father.
Nevertheless, [§] 160.204—the statute prescribing the circumstances under
which a man is presumed to be a child’s father—does not presume a man
to be a child’s father merely because the man is the child’s biological father.
See id. § 160.204. And if a presumption arises that a man is a child’s father
under [§] 160.204, that presumption is a particularly strong one, even if it so
happens that the man is not the child’s biological father. The presumption
can be rebutted in only two circumstances: (1) when there is a formal
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adjudication of parentage in a proceeding brought for that purpose or
(2) when the presumed father files a valid denial of paternity in conjunction
with another person’s filing of a valid acknowledgement of paternity. Id.
§ 160.204(b); In re S.C.L., 175 S.W.3d 555, 559 (Tex. App.—Dallas 2005,
no pet.). So long as the presumption stays unrebutted, the law deems the
presumed father to be the child’s father. TEX. FAM. CODE ANN.
§§ 160.102(13), .201(b)(1); S.C.L., 175 S.W.3d at 557.
With [Jordan] as [Lucy]’s presumed father, then, [Frank did] not have an
existing father-child relationship with [Lucy] under Texas law. See TEX. FAM.
CODE ANN. § 160.201. Instead, based on [Frank]’s allegation that he is
[Lucy]’s biological father, [Frank was] an alleged father. See id. § 101.0015
(defining “alleged father” to mean “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”). So [Frank] filed this suit to
adjudicate parentage in order to rebut [Jordan]’s presumed-father status
and to establish a father-child relationship with [Lucy]. See id.
§ 160.602(a)(3).
If a child does not have a presumed, acknowledged, or adjudicated father,
a person with standing to bring a suit to adjudicate the parentage of the child
may file that suit at any time. See id. §§ 160.602, .606. But that is not so if
the child has a presumed father, as [Lucy] does here. Section 160.607
applies to that situation, and it provides as follows:
(a) Except as otherwise provided by Subsection (b), a
proceeding brought by a presumed father, the mother, or
another individual to adjudicate the parentage of a child
having a presumed father shall be commenced not later
than the fourth anniversary of the date of the birth of the
child.
(b) A proceeding seeking to adjudicate the parentage of a
child having a presumed father may be maintained at any
time if the court determines that:
(1) the presumed father and the mother of the child did
not live together or engage in sexual intercourse
with each other during the probable time of
conception; or
(2) the presumed father was precluded from
commencing a proceeding to adjudicate the
parentage of the child before the expiration of the
time prescribed by Subsection (a) because of the
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mistaken belief that he was the child’s biological
father based on misrepresentations that led him to
that conclusion.
Id. § 160.607; see S.C.L., 175 S.W.3d at 557.
In re J.C., 594 S.W.3d 466, 469–70 (Tex. App.—Fort Worth 2019, no pet.).
The party seeking to avoid the four-year limitations period under § 160.607(b)
bears the burden to prove that the period was tolled. See In re Rodriguez, 248 S.W.3d
444, 451 (Tex. App.—Dallas 2008, orig. proceeding); see also In re Office of the Atty.
Gen., No. 13-11-00006-CV, 2011 WL 578733, at *3 (Tex. App.—Corpus Christi–Edinburg
Feb. 15, 2011, orig. proceeding) (mem. op.). The common law discovery rule does not
toll the limitations period in § 160.607. In re S.T., 467 S.W.3d 720, 726 (Tex. App.—Fort
Worth 2015, no pet.).
III. DISCUSSION
Because the trial court did not file findings of fact or conclusions of law indicating
the basis for its judgment, we analyze the two legal theories presented to it: (1) that one
or both § 160.607(b) exceptions apply; or (2) that application of § 160.607 to Frank
violates his Fourteenth Amendment rights under the United States Constitution. See TEX.
FAM. CODE ANN. § 160.607; Reyna, 709 S.W.2d at 658; U.S. CONST. amend. XIV, § 1.
A. Statutory Exceptions
We first address the argument that a § 160.607(b) exception applied in this case
allowing Frank to file his petition after Lucy’s fourth birthday. See TEX. FAM. CODE ANN.
§ 160.607(b). As applied to this case, those exceptions are either (1) that Jordan and
Dina did not live together or engage in sexual intercourse with each other during the
probable time of Lucy’s conception, or (2) that Jordan was precluded from bringing suit
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before Lucy’s fourth birthday because of the mistaken belief that he was Lucy’s biological
father based on misrepresentations that led him to that conclusion. See id.
1. § 160.607(b)(1) Exception
As to the first exception, Dina and Jordan stipulated to the fact that they were living
together at the time of Lucy’s birth. Moreover, there is no evidence in the record as to
whether Dina and Jordan were engaging in sexual relations during the probable time of
Lucy’s conception. Accordingly, the trial court lacked any evidence upon which to base
its decision to grant Frank’s petition under § 160.607(b)(1), and it would have erred by
doing so. See In re R.T.K., 324 S.W.3d at 899–900; TEX. FAM. CODE ANN. § 160.607(b)(1).
2. § 160.607(b)(2) Exception
Next, Frank contends that the trial court could have correctly applied
§ 160.607(b)(2). See TEX. FAM. CODE ANN. § 160.607(b)(2). That is, Frank argues that
Jordan was precluded from filing a paternity suit due to Dina’s misrepresentations that
Jordan was Lucy’s biological father, and therefore, Frank should be able to bring a suit
under § 160.607(b)(2). See id. Frank claims that the trial court could have found that
Dina’s misrepresentation of Jordan’s status as Lucy’s biological father constituted
common law fraud and fraud by non-dislocusure.
We note initially that to decide this issue in Frank’s favor, we would have to hold
that a party other than a presumed father may raise the § 160.607(b)(2) exception. See
id. But we need not decide the issue here because, even if an individual in Frank’s position
could raise the exception, the record is devoid of evidence necessary for him to
successfully do so.
In his brief on appeal, Frank states that Dina
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misrepresented to [Jordan] that he was the father of [Lucy] since her birth.
[Lucy] was listed as a child of the marriage when [Dina] and [Jordan]’s
divorce was final. . . . [Jordan] did not suspect [Frank] was [Lucy]’s
biological father at the time of the divorce. [Dina] did nothing at the time to
disabuse [Jordan] of the notion that he was [Lucy]’s father. In fact, [Jordan]
was granted visitation with [Lucy] when the divorce was final, and since the
divorce, [Jordan] has had extended visitation with [Lucy].
On this account, Frank asserts, “The foregoing facts support [a finding that Jordan], the
presumed father, mistakenly believed he was [Lucy]’s father due to [Dina]’s
misrepresentations . . . .” We disagree.
The record lacks any evidence supporting any claim of misrepresentation. There
is no evidence in the record that Jordan was misled by Dina that he was Lucy’s biological
father, or that Dina knew or assumed that Jordan was not Lucy’s biological father. In fact,
the record reflects that only Frank questioned who Lucy’s biological father was, that only
he suspected that he was Lucy’s biological father, and that the parties only discovered
Jordan was not Lucy’s biological father when Frank ultimately took and received the
results of his DNA test in June 2019. It is Frank’s burden to provide evidence raising an
exception to § 160.607’s four-year statute of limitations. In re Rodriguez, 248 S.W.3d at
451; see TEX. FAM. CODE ANN. § 160.607; see also In re Office of the Atty. Gen., 2011 WL
578733, at *3. He failed to meet that burden.
Because the trial court lacked any evidence upon which to base its decision to
grant Frank’s petition under either of the two § 160.607(b) exceptions, even assuming
Frank had standing to raise those exceptions, it would have erred by doing so. See In re
R.T.K., 324 S.W.3d at 900; TEX. FAM. CODE ANN. § 160.607(b). Accordingly, we sustain
Jordan’s argument that no § 160.607(b) exception applied to allow Frank to file his petition
after Lucy’s fourth birthday. See TEX. FAM. CODE ANN. § 160.607(b).
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B. Constitutionality
We next address Frank’s contention that § 160.607 violates his federal
constitutional rights. Citing the United States Supreme Court’s decision in Michael H. v.
Gerald D., Jordan argues that the statute is constitutional. See 491 U.S. 110 (1989)
(plurality opinion). Frank argues that the statute violates his fundamental right to raise his
child under the Due Process Clause of the United States Constitution. See U.S. CONST.
amend. XIV. According to Frank, a “suit to adjudicate parentage should be allowed at any
time whether or not a presumed father is involved.”
The trial court’s implicit determination that § 160.607 is unconstitutional is a legal
conclusion that we review de novo. Lund v. Giauque, 416 S.W.3d 122, 126 (Tex. App.—
Fort Worth 2013, no pet.) (citing Stockton v. Offenbach, 336 S.W.3d 610, 614–15 (Tex.
2011)). We begin with a strong presumption that § 160.607 is constitutional. See TEX.
GOV’T CODE ANN. § 311.021(1); Whitworth v. Bynum, 699 S.W.2d 194, 196–97 (Tex.
1985) (“A court begins by presuming a statute’s constitutionality, whether the basis of the
constitutional attack is grounded in due process or equal protection.”). “The burden is on
him who attacks a law for unconstitutionality and courts need not exert their ingenuity to
find reasons for holding the law invalid.” Methodist Healthcare Sys. of San Antonio, Ltd.,
L.L.P. v. Rankin, 307 S.W.3d 283, 285 (Tex. 2010).
In the context of analyzing whether a statute violates a fundamental right under the
Fourteenth Amendment, “fundamental rights” are those that are, “objectively, deeply
rooted in this Nation’s history and tradition . . . and implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington
v. Glucksberg, 521 U.S. 702, 720–21 (1997) (citations and internal quotation marks
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omitted). “Analyzing whether an asserted right is fundamental first requires a careful
description of the asserted right.” In re J.C., 594 S.W.3d at 474 (citing Glucksberg, 521
U.S. at 721; Schlittler v. State, 488 S.W.3d 306, 313–14 (Tex. Crim. App. 2016)). In this
case, the claimed fundamental right at issue is a biological father’s right to commence a
paternity suit at any time to establish a parent-child relationship with a child who has a
presumed father and is over four years old.
At least two Texas courts have considered and upheld the constitutionality of
§ 160.607’s four-year statute of limitations in cases with nearly identical facts. See In re
J.C., 594 S.W.3d at 474–76 (in which the Fort Worth court held that § 160.607 does not
infringe on a biological father’s equal protection rights under the Fourteenth Amendment
to the United States Constitution); In re S.C.L., 175 S.W.3d at 558 (in which the Dallas
court held that § 160.607 does not infringe on a biological father’s due process rights
under the Fourteenth Amendment to the United States Constitution). The courts in both
cases relied on the Supreme Court’s decision in Michael H. v. Gerald D., in reaching their
conclusions. 491 U.S. at 110.
In Michael H., a wife engaged in an adulterous affair with her neighbor, Michael,
and soon after discovered she was pregnant. Id. at 113–14. After the child, Victoria, was
born, Michael took a blood test indicating a 98.07% probability that he was Victoria’s
biological father. Id. at 114. During the first few years of her life, Victoria and her mother
lived with the husband at some points and at other times with Michael. Id. Both men
fostered relationships with Victoria and held her out as their own child. Id. After the wife
returned exclusively to her marital relationship, Michael, “rebuffed in his attempts to visit”
Victoria, filed an action seeking to establish his paternity and right to visit Victoria. Id.11
Per California law, however, “the issue of a wife cohabiting with her husband, who
is not impotent or sterile, is conclusively presumed to be a child of the marriage.” Id. at
115. The presumption could be rebutted through blood tests, but only by motion of either
the wife or husband, within two years of the child’s birth. Id. Consequently, the trial court
dismissed Michael’s action, and the case eventually made its way to the United States
Supreme Court, where Michael argued that the California statutory scheme violated his
substantive and procedural due process rights under the Fourteenth Amendment to the
United States Constitution. Id. at 115–17; see U.S. CONST. amend. XIV, § 1.
A plurality of the Court rejected Michael’s arguments, concluding that he did not
meet his burden to establish a constitutionally protected liberty interest in his relationship
with Victoria. Michael H., 491 U.S. at 121–30. The Court reiterated that a liberty interest
is only one that is “fundamental” and “traditionally protected by our society.” Id. at 122. In
other words, interests “so rooted in the traditions and conscience of our people.” Id. After
conducting a historical inquiry into “older” sources and cases, the Court concluded that
nothing therein addressed “the power of the natural father to assert parental rights over
a child born into a woman’s existing marriage with another man.” Id. at 125. Furthermore,
those sources contained no evidence that “States in fact award[ed] substantive parental
rights to the natural father of a child conceived within, and born into, an extant marital
union that wishe[d] to embrace the child.” Id. at 127. “This is not the stuff of which
fundamental rights qualifying as liberty interests are made.” Id.Thus, the plurality concluded that the California statute, which wholly proscribed
standing for a man in Michael’s circumstance to challenge paternity, was not
unconstitutional, as it did not infringe on any fundamental liberty interest protected by the
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Fourteenth Amendment. Id. at 129; see U.S. CONST. amend. XIV, § 1. In the plurality’s
view, it was “a question of legislative policy and not constitutional law whether California
w[ould] allow the presumed parenthood of a couple desiring to retain a child conceived
within and born into their marriage to be rebutted.” Michael H., 491 U.S. at 129–30.
The Fort Worth and Dallas courts both concluded that, if a statutory scheme that
completely barred a biological father from bringing a suit to adjudicate parentage does
not violate fundamental rights under the Fourteenth Amendment, certainly a statutory
scheme such a § 160.607—which confers standing and four years for an alleged father
to bring suit—would not violate an alleged father’s fundamental rights. In re J.C., 594
S.W.3d at 476; In re S.C.L., 175 S.W.3d at 558; see TEX. FAM. CODE ANN. § 160.607. We
agree.
Accordingly, we join our sister courts in upholding the constitutionality of
§ 160.607, and conclude that Frank’s Fourteenth Amendment rights were not violated by
application of the statute’s four-year limitations period. See Michael H., 491 U.S. at 130;
J.C., 594 S.W.3d at 476; S.C.L., 175 S.W.3d at 558; TEX. FAM. CODE ANN. § 160.607;
U.S. CONST. amend. XIV, § 1. The legislative policy in Texas provided Frank with a four-
year window to commence his suit, but he failed to timely do so—even though he
suspected he was Lucy’s biological father, and lived with Lucy since she was
approximately fifteen months old. Frank argues that § 160.607’s four-year limitations
period is arbitrary, and, like § 160.606, which concerns suits to adjudicate parentage
when there is no presumed father, § 160.607 should state that a paternity suit may be
filed “at any time.” See TEX. FAM. CODE ANN. §§ 160.606, 160.607. But that is an issue for
the legislature; it is not within this Court’s purview to rewrite § 160.607 to provide Frank
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the relief he seeks. See id. § 160.607.
Jordan has preserved a continuous relationship with Lucy and her three siblings,
and, as Lucy’s presumed father, maintains the concomitant legal rights and duties. We
are mindful of the complex circumstances presented here but take comfort in knowing
that both Frank and Jordan will care for Lucy to ensure her wellbeing despite the
unfortunate situation Lucy was placed in, through no fault of her own.
Having concluded that no exception to § 160.607’s four-year statute of limitations
applies in this case, and that the statute did not unconstitutionally burden Frank’s
Fourteenth Amendment rights, we sustain Jordan’s issue arguing that the trial court erred
in adjudicating Frank as Lucy’s father.
IV. CONCLUSION
We reverse the trial court’s judgment and render judgment dismissing Frank’s
petition to adjudicate parentage.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
14th day of April, 2022.
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