In re Interest of J.C.

• Decision Date: 27 August 2019
• Docket Number: No. 02-18-00029-CV,02-18-00029-CV
• Citation: 594 S.W.3d 466
• Parties: In the INTEREST OF J.C., a Child
• Court: Texas Court of Appeals

594 S.W.3d 466

In the INTEREST OF J.C., a Child

No. 02-18-00029-CV

Court of Appeals of Texas, Fort Worth.

Delivered: August 27, 2019

ATTORNEY FOR APPELLANT: TOMAS M. MICHEL, GRIFFITH, JAY & MICHEL, LLP, FORT WORTH, TEXAS.

ATTORNEY FOR APPELLEE: PAUL M. LEOPOLD, KOONSFULLER, P.C., SOUTHLAKE, TEXAS.

Before Sudderth, C.J.; Gabriel and Birdwell, JJ.

Opinion by Justice Gabriel

P.A. (Peter)¹ appeals from the trial court's denial of his petition to adjudicate parentage, which he brought to establish a father–child relationship with J.C. (Justin). But Justin has a presumed father, and Peter filed this suit more than four years after Justin's birth. In such circumstances, with only two exceptions, section 160.607 of the Texas Uniform Parentage Act (TUPA) bars an individual from commencing a suit to adjudicate parentage. See Tex. Fam. Code Ann. § 160.607. The trial court found neither exception applies in this case and thus denied Peter's suit as untimely. In his sole issue, Peter argues, as he did in the trial court, that he should not be barred from bringing this suit based upon section 160.607 because that provision is unconstitutional. The trial court disagreed. So do we. We therefore affirm.

I. BACKGROUND²

K.C. (Kelly) married I.C. (Ivan) on July 19, 2008, and they are still married. They have lived together since their marriage and have never separated. Justin was born to Kelly in July 2010; thus, Justin's probable date of conception was in either September or October 2009. Kelly and Ivan engaged in sexual relations on a regular basis during the period of time when Justin was conceived.

During that same time period, Kelly was also having sexual relations with Peter, and Kelly's extramarital affair continued for approximately four years. While she was pregnant with Justin, Kelly told Peter that he was Justin's biological father and continued to tell Peter that fact after Justin's birth.

When Kelly told Ivan that she was pregnant with Justin, Ivan believed he was Justin's biological father and continued to believe he was Justin's biological father through at least the first four years of Justin's life. Justin knows only Ivan as his father, and Ivan has a close and loving parent–child relationship with Justin.

In January 2011, Peter obtained a DNA test confirming that he is Justin's biological father. Peter, however, never filed an acknowledgment of paternity. Peter did not commence this suit to establish the paternity of Justin until June 4, 2015.

II. STATUTORY SCHEME

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 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. Peter desires to establish the latter between himself and Justin, thereby placing in Peter 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: Ivan was married to Kelly when she gave birth to Justin. Thus, the law presumes that Ivan is Justin's father. See id.

But Peter alleges that he, not Ivan, is Justin's biological father. Nevertheless, section 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.³ See id. § 160.204. And if a presumption arises that a man is a child's father under section 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 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 Ivan as Justin's presumed father, then, Peter does not have an existing father–child relationship with Justin under Texas law. See Tex. Fam. Code Ann. § 160.201. Instead, based on Peter's allegation that he is Justin's biological father, Peter is 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 Peter filed this suit to adjudicate parentage in order to rebut Ivan's presumed-father status and to establish a father–child relationship with Justin. 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 Justin 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 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.

Thus, with two exceptions (which do not apply here), if a child has a presumed father, a proceeding to adjudicate the child's parentage must be brought no later than the child's fourth birthday.⁴

III. TRIAL COURT PROCEEDINGS

From the time they filed their initial pleadings in this case, Kelly and Ivan asserted that Peter's suit was barred by section 160.607's four-year statute of limitations. And for the first two years that this case was pending before the trial court, Peter asserted only one basis for avoiding section 160.607's applicability: he claimed that Kelly and Ivan should be barred from asserting section 160.607's time limitation based on the doctrine of equitable estoppel. Peter did not raise a challenge to section 160.607's constitutionality until he filed his second amended petition to adjudicate parentage on June 5, 2017, two years after he initiated this suit and only two weeks before the scheduled bench trial.⁵ In his live pleading, Peter asserted that section 160.607 is unconstitutional under the Fourteenth Amendment's Equal Protection and Due Process Clauses as well as under Texas constitution article I, section 19's due-course-of-law guarantee.⁶

But Peter did not present the trial court with any arguments related to the constitutional challenges he raised in his live pleading until his closing argument at trial. Even then, Peter's constitutional argument was meager. The record shows that Peter's primary focus during trial remained his contention that section 160.607 was inapplicable based on equitable estoppel, and that basis for avoiding section 160.607 dominated his closing argument. His entire argument related to section 160.607's constitutionality was the following:

In

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