In the Interest of Tiffany Forns, an Adult Child v. the State of Texas ( 2023 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00147-CV
IN THE INTEREST OF TIFFANY FORNS, AN ADULT CHILD
From the 66th District Court
Hill County, Texas
Trial Court No. CV335-21DC
MEMORANDUM OPINION
Appellant Tiffany Forns challenges the trial court’s denial of her motion for
genetic testing, which she filed within the context of her suit for adjudication of
parentage. See generally TEX. FAM. CODE ANN. §§ 160.601–.637. Because we find no
appealable order or judgment in the record, we will dismiss this appeal for want of
jurisdiction.
Background
Tiffany was born in June of 1982 to Karen Morales. Her birth certificate lists her
father as Tommy Todd Hagar, who had divorced Karen in October of the previous year.
Karen now claims she knew at the time that Tommy was not Tiffany’s biological father
and only listed him as the father because her own mother instructed her to do so.
Because Tiffany was born within 301 days of the divorce, Tommy is presumed to be her
father unless adjudicated otherwise by a court. See id. §§ 160.204(a)(2), .607(b)(1). At
some point following her separation from Tommy, Karen began living with Don
Vaughn. Several years following Tiffany’s birth, Karen and Don contacted Tommy,
who was apparently unaware that Karen was ever pregnant, and asked him to allow
Don to adopt Tiffany. 1 Tiffany never lived with Tommy and, according to testimony
presented at trial, believed Don was her biological father until high school, when she
learned that her mother had been in a relationship with Monty Pueschel around the
presumed time of Tiffany’s conception.
Sometime between 2018 and 2020—at trial, witnesses were uncertain of the
date—Tommy completed an over-the-counter genetic test at Tiffany’s request. Tiffany
offered those results as an exhibit at trial, but that evidence was deemed inadmissible
by the trial court. No one denies that Tommy took the test and that he and Tiffany
obtained the results, nor does anyone challenge the evidentiary ruling.
In June of 2021, Tiffany sued Monty for an adjudication of parentage and
subsequently amended her petition to add Karen as a second respondent; neither
Tommy nor Don was party to the proceedings. Embedded within both the original and
amended petitions for relief is a request for genetic testing. The governing statute
1
Based on the record, it appears that Don and Karen never completed the adoption. Don was not party to the suit.
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requires the trial court to order such testing, see id. § 160.502(a), unless the trial court
makes certain findings by clear and convincing evidence and considers the best interest
of the child, see id. § 160.608(a)–(d).
Monty responded to Tiffany’s suit by challenging the court’s jurisdiction over the
petition and arguing, in the alternative, that the statutory factors governing the denial
of a motion for genetic testing, see id. §160.608(b), weigh in favor of denying Tiffany’s
motion. After a series of additional motions and continuances not relevant here, Tiffany
filed an amended petition. The trial court held an evidentiary hearing at which Tiffany,
Karen, Tommy, and Monty each testified. Don did not testify. The trial court issued a
letter ruling outlining its reasoning before issuing a one-line order that denied the
motion but did not determine parentage, see id. § 160.608(e) (requiring trial court, upon
denial of such motion, “to issue an order adjudicating the presumed father to be the
father of the child”). Tiffany requested findings of fact and conclusions of law, which
the trial court prepared and filed. Tiffany timely perfected this appeal.
Issues on Appeal
On appeal, Tiffany argues that the trial court “abused its discretion in denying
[her] motion for genetic testing”; that the trial court’s denial of the motion for genetic
testing “should be considered a final order rather than an interlocutory order”; and that
her petition and appeal present a “justiciable issue,” notwithstanding the facts that she
has reached the age of majority, is not otherwise eligible for any support, and that
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Monty’s testimony that adjudication of parentage will not change the devisees listed in
his will. Monty offers counterarguments to each of Tiffany’s points; he also asks this
Court to remand for an award of attorney’s fees. Because it is dispositive of this appeal,
we will address only Tiffany’s second argument. See TEX. R. APP. P. 47.1.
AUTHORITY
The Texas Constitution imbues the courts of appeals with jurisdiction “as
prescribed by law.” Tex. Const. art. V, sec. 6(a). It is now well settled that this court’s
jurisdiction extends only to appeals from final judgments and interlocutory orders
made appealable by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001);
see also TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (delineating permissible appeals
from interlocutory orders); TEX. R. CIV. P. 301 (“Only one final judgment shall be
rendered in any cause except where it is otherwise specifically provided by law.”).
Jurisdiction cannot be waived and may be raised for the first time on appeal or
questioned by the appellate court sua sponte. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 445 (Tex. 1993).
DISCUSSION
Monty asks us “to dismiss this appeal for want of jurisdiction.” Tiffany,
meanwhile, asks this Court to construe the one-line order as a final judgment 2 and reach
the merits of the denial, arguing that “[t]he denial of genetic testing disposes of [her]
2
She does not argue that the order is an interlocutory order made appealable by statute, and we are aware of no
authority characterizing an order like the one at issue here as such.
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claim[,] as the court cannot affirm or deny [Monty] as the biological father without
genetic testing, and genetic testing in this cause is an appealable order.” She continues,
“Without the ability to appeal the denial of genetic testing in this case, the [trial court]
may be forced to enter an order adjudicating a presumed father [i.e., Tommy] who was
fraudulently placed on the birth certificate,” because “[i]f a trial court denies a motion
for genetic testing, the trial court shall issue an order adjudicating the presumed father
to be the father of the child.” (quoting TEX. FAM. CODE ANN. § 160.608(e)).
Section 105.006 of the Family Code delineates the necessary components of a
final order in a suit affecting the parent-child relationship. The section applies to this
suit. See id. § 105.006(a) (referring to any final order “other than in a proceeding under
Chapter 161 or 162”). Yet few, if any, of the required elements is present in the
challenged order.
The governing case on section 105.006 finality, In re R.R.K., 590 S.W.3d 535 (Tex.
2019), holds that the absence of one or more of those elements from the challenged
order is “not fatal” to finality. In that case, there was disagreement among the parties
as to which of a series of orders served as the final order for the purposes of appeal.
The high court explained:
The trial court’s memorandum lacks many of section 105.006’s
requirements for final orders and contains none of the statutorily-required
warnings and advisories. The courts of appeals have differed in their
consideration of the effect of compliance with section 105.006 on finality,
with some holding that section 105.006 plays no role in determining
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finality and others viewing lack of compliance as part of the overall
finality analysis. We agree with the latter approach. While a missing
required element does not conclusively negate finality, a failure to include
multiple required elements suggests ambiguity as to the trial court’s
intent. In this case, that ambiguity is not otherwise resolved on the face of
the memorandum because it lacks language that it finally disposes of all
claims and parties and is appealable.
A failure to comply with every aspect of section 105.006 is not fatal to
finality. But when finality is contested, and the order lacks required
statutory elements, a reviewing court should examine the record to
determine finality under Lehmann and its progeny. Absent “clear and
unequivocal” language that the memorandum disposes of all claims and
all parties and is appealable, omissions of elements required by section
105.006 raise doubt about an order’s finality.
...
Because the memorandum order in this case does not contain “clear,”
“unequivocal,” and “unmistakable” indicia of finality, removing “any
doubt” about its effect, we examine the record to determine the trial
court’s intent.
...
We hold that an order lacking the unmistakable language of finality—that
it resolves all claims between and among all parties and is final and
appealable—is ambiguous in a suit under the Family Code when the
order does not comport with the statute governing final orders and is
otherwise inconclusive as to its intent. If a judicial decree’s finality is
ambiguous, a reviewing court should examine the record to determine the
trial court’s intent.
Id. at 542–44 (emphasis added and all footnotes omitted).
The R.R.K. court went on to explain that the series of draft orders and
communications left no doubt as to which order the trial court intended as final. See id.
at 544.
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Here, the trial court omitted elements of finality required by section 105.006 of
the Family Code. In addition, Chapter 160 requires that a trial court denying a motion
for genetic testing issue an order declaring a presumed father—in this case Tommy—to
be the father of the subject child, see TEX. FAM. CODE ANN. § 160.608(e), which the trial
court has not done. Instead, the trial court’s conclusions of law expressly state that
Tommy is not Tiffany’s father. The trial court’s letter ruling indicates that Tiffany has
identified no “justiciable controversy” and that the courts can afford Tiffany no relief,
seemingly suggesting finality. Yet nothing in the order, the letter ruling, or the findings
and conclusions satisfies Lehmann’s standards of “clear and unequivocal“ language of
finality. And none of the trial court’s comments from the bench, which were limited,
offers any insight as to the trial court’s intent.
In sum, the order Tiffany challenges on appeal is simply an order denying her
motion for genetic testing. Under governing standards, it has none of the hallmarks of a
final order or judgment. We therefore must dismiss the appeal for want of jurisdiction
without reaching the merits of any other arguments raised. See Lehmann, 39 S.W.3d at
196 (“An appeal from such a [non-final] judgment must be dismissed or at least abated,
resulting in delay and a waste of the courts’ and the parties' resources.”); TEX. R. APP. P.
42.3(a), 43.2. Accordingly, we express no opinion as to whether Tiffany’s suit was
timely filed and offer no comment on the trial court’s analysis or disposition of the
motion.
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Conclusion
We dismiss the appeal for want of jurisdiction.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Smith, and
Justice Johnson
Appeal dismissed
Opinion delivered and filed August 30, 2023
[CV06]
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