In re H.C.S.

• Decision Date: 08 November 2006
• Docket Number: No. 04-06-00005-CV.,04-06-00005-CV.
• Citation: 219 S.W.3d 33
• Parties: In the Interest of H.C.S., a Child.
• Court: Texas Court of Appeals

219 S.W.3d 33

In the Interest of H.C.S., a Child.

No. 04-06-00005-CV.

Court of Appeals of Texas, San Antonio.

November 8, 2006.

Amber M. Liddell, McCurley, Orsinger, McCurley, Nelson & Downing, San Antonio, for appellant.

Harold C. Zuflacht, Stephanie J. Bandoske, Higdon, Hardy & Zuflacht, L.L.P., San Antonio, for appellee.

Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.

Opinion by CATHERINE STONE, Justice.

In this appeal we must determine whether a sperm donor has standing to pursue a proceeding to adjudicate the parentage of a child conceived using the donor's sperm. J.S., appellant, brought suit to establish paternity; however, the child's mother, K.D., filed a plea to the jurisdiction challenging J.S.'s standing to bring the parentage proceeding. The trial court granted the plea and dismissed J.S.'s suit for a lack of standing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

K.D. was in a romantic relationship with Marie, appellant's sister. At some point during the relationship, K.D. wanted to have a child. As a result, J.S. agreed to act as the donor and provided the sperm used to artificially inseminate K.D. J.S. contends that he and K.D. verbally agreed that he would not act merely as a "donor"; rather, he would be involved in the child's life. K.D. denies that such an agreement was ever made. In February 2000, K.D. gave birth to a healthy child, H.C.S., conceived with J.S.'s sperm.

In June 2005, after K.D. and Marie ended their relationship and following K.D.'s "persistent denial of visitation and access [to H.C.S.], after a period of allowed visitation," J.S. filed this suit to adjudicate his parental rights. The parties later executed a Rule 11 agreement which provided J.S. with limited access to the child. Subsequently, K.D. filed a plea to the jurisdiction based on J.S.'s alleged lack of standing. Specifically, K.D. argued that a sperm donor cannot file a suit to adjudicate parental rights under the Family Code; thus, the trial court lacked subject-matter jurisdiction to adjudicate the case. The trial court granted K.D.'s plea and dismissed the case. J.S. now appeals.

STANDING

Standing is a prerequisite to subject-matter jurisdiction and is essential to a court's power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000). As an element of subject-matter jurisdiction, standing is an issue that can be raised at any time. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993). A plea to the jurisdiction is a proper vehicle in which a party may challenge a lack of subject-matter jurisdiction. Bland Indep. Sch. Dist., 34 S.W.3d at 554. As a dilatory plea, the purpose of a plea to the jurisdiction is to defeat alleged claims, notwithstanding whether the claims have merit. Id. A dilatory plea should not force a plaintiff to preview the merits of its case; rather, the objective is to establish why the merits should never be reached. Id.

Standing to sue is either granted by statute or obtained when a plaintiff can demonstrate a particular injury distinct from one to that of the general public. Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). The case at bar is based on statutory standing. J.S. contends the Texas Family Code authorizes his suit, and thus he claims the trial court erred in dismissing the case for a lack of subject-matter jurisdiction.

TEXAS FAMILY CODE

In order to determine whether the Family Code limits standing in a suit to establish parentage, a statutory construction is necessary. See Tex. Dep't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 860-61 (Tex.2001) (deciding whether a putative father had standing based on the court's interpretation of the statutory standing provision); Doncer v. Dickerson, 81 S.W.3d 349, 358 (Tex.App.-El Paso 2002, no pet.) (analyzing the Family Code to determine whether it provided a stepmother standing to file a suit affecting the parent-child relationship). When engaging in a statutory construction, as we must in this case, the court may consider the object sought to be attained by the statute, the circumstances under which the statute was enacted, the legislative history, former statutory provisions regarding similar subjects, and consequences of a particular construction. See TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005).

K.D. contends J.S. lacks standing because as a donor, he is not a parent. Section 160.702 of the Family Code states that "[a] donor is not a parent of a child conceived by means of assisted reproduction." TEX. FAM.CODE ANN. § 160.702 (Vernon Supp.2006). It is undisputed that H.C.S. was conceived by means of assisted reproduction, and that J.S. was the sperm donor for the reproduction. J.S. argues, however, that standing in a suit to adjudicate parentage is governed by Section 160.602, which provides that "a proceeding to adjudicate parentage may be maintained by ... a man whose paternity of the child is to be adjudicated...." Id. § 160.602(3).

In support of his contentions, J.S. relies on In re Sullivan, 157 S.W.3d 911 (Tex.App.-Houston [14th Dist.] 2005, orig. proceeding). Like the case at issue, in Sullivan an unmarried man, Russell, and unmarried woman, Sullivan, agreed to conceive a child with Russell providing his sperm for artificial insemination. Id. at 912. However, the parties signed a co-parenting agreement before the child was born which provided Russell possession of the child consistent with the standard possession schedule therein. Id. at 913. Following a disagreement, Russell filed suit seeking a decree to establish a parent-child relationship, as well as an order appointing him as a joint managing conservator. Id. In response, Sullivan filed a plea to the jurisdiction claiming that Section 160.702 divests a sperm donor of standing to bring a proceeding to adjudicate parentage. Id. The trial court ruled that Russell had standing; Sullivan then filed a petition for writ of mandamus. Id.

In Sullivan the court noted that "[b]efore reaching the issue of whether Russell is a donor who lacks parental rights, we first must determine whether ... donor status is part of the inquiry as to whether Russell has standing to maintain a parentage proceeding." Id. at 915 (footnote omitted). The court conducted a thorough analysis of the relevant statutory provisions and concluded:

Based on the language of the statute, the object sought to be obtained, the circumstances under which the statute was enacted, the legislative history, former statutory provisions, including laws on the same or similar subjects, and the consequences of the different constructions, we conclude that, at a minimum, section 160.602(3) confers standing on a man alleging himself to be the biological father of the child in question and seeking an adjudication that he is the father of the child. We further conclude that under the statute, as drafted, the issue of the man's status as a donor under section 160.702 is to be decided at the merits stage of the litigation rather than as part of the threshold issue of standing.

Id. at 919.

While we acknowledge the scholarly research reflected in the Sullivan opinion, we respectfully disagree with the court's conclusion that status as a donor is irrelevant to the question of standing to establish parentage. We likewise do not agree that donor status is more appropriately addressed at the merits stage of the litigation. To the contrary, based on the plain language of the Family Code as set forth below, we conclude that J.S., as an unmarried man who provided sperm used for assisted reproduction and who did not sign and file an acknowledgment of paternity, does not have standing to pursue a suit to determine paternity of the child born through the assisted reproduction.

Title Five of 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. Section 102.003, the general standing provision for suits affecting the parent-child relationship, states that a suit may be filed at any...