COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00074-CV
IN THE INTEREST OF C.M.H.G., A
CHILD
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FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In five interconnected issues, Appellant H.M. challenges the trial court’s
February 15, 2012 final judgment in which it vacated its August 17, 2010 order
for parentage testing, denied H.M.’s motion for genetic testing, adjudicated
Appellee D.G. as C.M.H.G.’s father, estopped H.M. from denying that parentage,
and denied H.M.’s multiple motions to reconsider and for possession and access
to the child. We affirm.
1
See Tex. R. App. P. 47.4.
II. Factual and Procedural Background
Until sometime in 2008, H.M.—C.M.H.G.’s maternal grandmother—and
D.G. were involved in a business and romantic relationship. Early in 2008, M.M.
gave birth to C.M.H.G., who was born cocaine-exposed and syphilis-positive.
M.M. had a history of drug abuse and lived a transient lifestyle, moving back and
forth between H.M.’s house and homeless shelters.
D.G. was present at C.M.H.G.’s birth and testified that he had intended to
sign her birth certificate at the hospital but that H.M. had prevented him from
doing so. D.G. testified that he and M.M. had engaged in a sexual relationship
during the timeframe of C.M.H.G.’s conception and that he was the child’s father.
H.M., on the other hand, testified that neither she nor D.G. knew M.M.’s
whereabouts during the time of conception.
Shortly after C.M.H.G.’s birth, Child Protective Services (CPS) placed the
child with H.M. M.M. told a CPS investigator that C.M.H.G. lived with the father,
but M.M. did not reveal the father’s identity to the investigator. M.M. was struck
by a car and killed in August 2008.
H.M. testified that she had primary care of C.M.H.G. from the day she was
born and that N.G., D.G.’s mother, watched C.M.H.G. a couple of days a week.
D.G., however, testified that H.M. brought C.M.H.G. to him shortly after her birth
and indicated he would have primary responsibility for her. He also testified that
C.M.H.G. continually resided with him until she was eighteen months old and that
he provided for her daily needs.
2
D.G. testified that he stopped H.M. several times from using excessive
force when disciplining C.M.H.G. He also testified that H.M. used drugs.
Theresa Wollo, who had been H.M.’s friend for eleven years, testified that H.M.
was inattentive and unaffectionate toward C.M.H.G. Wollo stated that she had
lived with H.M. after C.M.H.G. was born and that the child only stayed in H.M.’s
house once or twice a week and stayed with D.G. the remainder of the time.
Wollo further testified that H.M. did not want C.M.H.G. when she was born and
that H.M. had called the baby “a demon seed” and had said that she “felt like
[M.M.] had that baby to punish her.”
In July 2009, D.G. and H.M. took C.M.H.G. to Illinois to visit H.M.’s family.
D.G. returned to Texas without C.M.H.G. but with H.M.’s promise that she would
bring her back the following week. H.M. then returned to Texas without C.M.H.G.
When D.G. confronted her, H.M. claimed that a family member would bring
C.M.H.G. back the following week.
Shortly thereafter, H.M. threatened D.G. with a gun and demanded that he
pay her $10,000.00 that she alleged he owed her from a business dispute. D.G.
wrestled the weapon away from her and expelled her from his business
premises. H.M. sent D.G. a text later and apologized, saying she would return
C.M.H.G. if D.G. gave her the $10,000.00. Five days later, H.M. sent D.G.
another text, asking, “Wheres my money?” After D.G. refused H.M.’s demand,
he and N.G. went to Illinois to bring C.M.H.G. home. They were unable to locate
3
her. D.G. stated that this was because H.M.’s “family basically hid her from
[them].”
A. Undisputed Fact Findings
Summarized below are the trial court’s findings of fact that neither party
disputes:
[H.M.] is the child’s maternal grandmother.
[D.G.] and [H.M.] had previously been involved not only in a dating
relationship but also a business relationship.
The child’s mother ([M.M.]) is deceased.
No other man has come forward requesting to be adjudicated as the child’s
father or to execute an acknowledgment of paternity as to the child.
During July 2009, [D.G.], [H.M.], and the child went to Illinois to visit with
[H.M.]’s relatives. The child was not returned to [D.G.] after the visit.2
On August 10, 2009, [H.M.] went to the place of business she shared with
[D.G.] and demanded money from him at gunpoint with the threat that she
would kill if she had to.3
On August 10, 2009, [H.M.] texted [D.G.] to tell him that she would return
the child for the payment of $10,000.00.4
2
H.M. disputed D.G.’s testimony that she and D.G. had agreed that she
would bring the child back from Illinois.
3
H.M. invoked her Fifth Amendment privilege against self-incrimination
when asked whether she had pointed a gun at D.G. Her text message to D.G.
stated, “I apologise 4 threatening u.U know I would never hurt.Im really about
depressed us and [M.M.]. I really miss her.”
4
H.M.’s text message to D.G. reads, “Im sorry for all of it.If u give me
10,000 for [C.M.H.G.], I will bring her back.I promise, u know she’s 2 much for
4
On February 11, 2010, the Honorable Clifford Bronson, IV-D Associate
Judge, approved a Child Support Review Order (CSRO) in which he found
that [D.G.] was the father of the child and had the duty to support the
child.5
On June 18, 2010, [D.G.] filed a “Petition for Enforcement of Child Custody
Determination, Application for Writ of Attachment, and Emergency Request
for [W]arrant to Take Physical [C]ustody of the Child.”
On September 15, 2010, the trial court issued a letter rendition to the
attorneys of the parties in the case rendering in part that [D.G.] was the
acknowledged father of the child.
H.M. responded to the petition for enforcement by denying that D.G. was
the child’s father and asked for genetic testing to determine the child’s parentage.
The trial court initially granted H.M.’s motion for genetic testing but ultimately
denied it after vacating its initial order.
B. Disputed Fact Findings
Among the fact findings that H.M. disputes are the trial court’s findings that
D.G. had engaged in sexual intercourse with M.M. at a time that would
me.She belongs with u,thats the way [M.M.] would Have wanted it. Please think
about I really need the money.” Her text a few days later states, “Wheres my
money?”
5
H.M. filed a petition for bill of review in a separate cause number, No. 324-
480031-10, to challenge the CSRO, alleging that D.G. was not the child’s father
and that D.G. had had no contact with the child from summer 2009 until June
2010. On October 11, 2011, H.M. filed a petition for writ of mandamus in that
case, complaining that the trial court had abused its discretion by failing to
appoint an ad litem attorney to represent the child. The petition was summarily
denied, and according to the trial court clerk, the case remains pending in the
trial court.
5
correspond with the child’s birth and that M.M. had executed a document in
which she acknowledged D.G. to be the child’s father and recognized that D.G.
would be responsible for the child’s care and upbringing in the event M.M. would
be unable to care for the child. The trial court also found that the child had lived
with D.G. for the first eighteen and a half months of her life, during which he had
the day-to-day care and responsibility for the child. And it found that D.G. and
his mother had gone to Illinois in September 2009 to look for the child without
success.
C. Other Fact Findings
The trial court also made these fact findings, which flow from its other
findings, as summarized below:
[D.G.] is the only father that the child has ever known.
If [D.G.] were not adjudicated as the child’s father, there is virtually no
chance that the child would ever have a father.
It is in the best interest of the child that [D.G.’s] paternity of the child be
established.
It is in the best interest of the child that [D.G.] should be named as the sole
managing conservator of the child.
As a grandparent of Child, [H.M.] has presented no evidence that it would
impair the child’s physical health or emotional wellbeing if she were denied
access to child.
It is in the best interest of the child for [D.G.] to have the exclusive rights
set forth in family code section 153.132.
6
D. Conclusions of Law
The trial court made the following conclusions of law.6
1. The Acknowledgment of Paternity executed by [M.M.] meets the
statutory requirements of § 160.302, Texas Family Code.
2. [M.M.] would be estopped from denying [D.G.’s] parentage were she
alive under § 160.608(a)(1), Texas Family Code.
3. [H.M.] cannot step into a better position as a grandparent that [M.M.]
would have been in as a parent.
4. It would be inequitable to disprove the father child relationship
between Child and [D.G.].
5. The factors that were also considered by the Court under
§ 160.608(b), Texas Family Code were as follows:
a. There had been a period of over two (2) years that [D.G.]
has assumed the role of father before there was any
contest by [H.M.].
b. There is a father/daughter bond between [D.G.] and child.
c. Child would be harmed if [D.G.’s] paternity was
successfully disproved.
d. The passage of time has reduced the chances of
establishing paternity between Child and any other man or
establishing a support obligation for any other man.
e. Harm would result for the child if the father/daughter
relationship between [D.G.] and Child were disrupted.
6
H.M. challenges the first and second of these conclusions.
7
6. It is in the best interest of Child that [D.G.’s] parentage be
adjudicated.
7. It is in the best interest of Child that [D.G.] be named as the sole
managing conservator of Child.
8. It is in the best interest of Child that [H.M.] have access to Child only
as agreed upon by [D.G.].
9. It is in the best interest of Child that [N.G.] have access to Child only
as agreed upon by [D.G.].
E. Final Judgment
In the February 15, 2012 final judgment, the trial court stated, “After
considering the pleadings, evidence, arguments of counsel, and relevant factors
as enumerated under § 160.608, the Court finds by clear and convincing
evidence that [H.M.], Respondent, is estopped to deny the parentage of
Petitioner [D.G.], the acknowledged father.” The trial court then adjudicated D.G.
as the child’s father, vacated its August 17, 2010 order for parentage testing, and
denied H.M.’s motion for genetic testing and her motion for new trial, motion to
reconsider, motion to re-reconsider, and motion for possession and/or access.7
This appeal followed.
7
H.M.’s “AMENDED MOTION FOR NEW TRIAL OR IN THE ALTERNATE
MOTION FOR EXPEDITED EVIDENTIARY HEARING,” “SECOND AMENDED
MOTION FOR NEW TRIAL OR IN THE ALTERNATE MOTION TO
RECONSIDER,” and “MOTION TO RE-RECONSIDER OR MOTION TO OFFER
NEWLY DISCOVERED EVIDENCE AS A BILL OF EXCEPTION” all revolve
around a central argument—the acknowledgment of paternity is void because
M.M.’s signature was a forgery. Additionally, both of H.M.’s experts were called
only to challenge the validity of the acknowledgment of paternity.
8
III. Discussion
In her second, third, fourth, and fifth issues, H.M. argues that the trial court
abused its discretion by applying family code section 160.608 when the evidence
is insufficient to support its finding and the section applies only to presumed
fathers, by vacating the order for paternity testing, and by denying her second
amended motion for new trial because M.M.’s signature on the acknowledgment
of paternity was a forgery. In her first issue, she challenges the trial court’s
conclusion of law that the acknowledgment of paternity executed by M.M. meets
family code section 160.302’s requirements.
A. Standard of Review
A trial court abuses its discretion if it acts without reference to any guiding
rules or principles, that is, if the act is arbitrary or unreasonable. Low v. Henry,
221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39
(Tex. 2004). An appellate court cannot conclude that a trial court abused its
discretion merely because the appellate court would have ruled differently in the
same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d
549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
A trial court also abuses its discretion by ruling without supporting
evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an
abuse of discretion does not occur when the trial court bases its decision on
conflicting evidence and some evidence of substantive and probative character
supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.
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2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh’g).
The trier of fact is the sole judge of the credibility of witnesses and the weight to
be given to their testimony, and we do not substitute our judgment for that of the
factfinder when evidence is conflicting. Golden Eagle Archery, Inc. v. Jackson,
116 S.W.3d 757, 761 (Tex. 2003).
The sufficiency of the evidence and abuse of discretion standards of
review often overlap in family law cases. In re M.C.F., 121 S.W.3d 891, 895
(Tex. App.—Fort Worth 2003, no pet.); In re C.R.O., 96 S.W.3d 442, 447 (Tex.
App.—Amarillo 2002, pet. denied). In such cases, we must first determine
(1) whether the trial court had sufficient information upon which to exercise its
discretion and (2) whether the trial court erred in applying that discretion. M.C.F.,
121 S.W.3d at 895.
With regard to the first prong, we determine whether there is legally
sufficient evidence to support the finding under review and must consider
evidence favorable to the finding if a reasonable factfinder could and disregard
evidence contrary to the finding unless a reasonable factfinder could not. Cent.
Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller
v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). With regard to whether the
trial court erred in its application of discretion, we determine whether, based on
the elicited evidence, the trial court made a reasonable decision. Zeifman v.
Michels, 212 S.W.3d 582, 588 (Tex. App.—Austin 2006, pet. denied).
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B. Statutory Estoppel
In her second and third issues, H.M. argues that section 160.608 applies
only to presumed fathers and that the trial court did not rely upon equitable
estoppel in determining that H.M. was estopped from challenging D.G.’s
paternity. However, H.M.’s statutory challenge ignores the language of
subsection (f), which states, “This section applies to a proceeding to challenge an
acknowledgment of paternity or a denial of paternity as provided by Section
160.309(d).” See Tex. Fam. Code Ann. § 160.608(f) (West 2008 & Supp. 2013).
In its letter rendition to the parties on September 15, 2010, the trial court stated
that H.M.’s response to D.G.’s suit was, in effect, a challenge to the
acknowledgment of paternity signed by D.G. and M.M. before M.M.’s death.
We recognize that letter rulings do not constitute formal findings of fact.
See Cherokee Water Co. v. Gregg Cnty. Appraisal Dist., 801 S.W.2d 872, 878
(Tex. 1990); Burgess v. Denton Cnty., 359 S.W.3d 351, 359 (Tex. App.—Fort
Worth 2012, no pet.). However, H.M. does not challenge the trial court’s
construction of her argument, and her pleadings support the trial court’s
determination that she challenged D.G.’s paternity by attacking the
acknowledgment. Notwithstanding the acknowledgment’s deficiency,8 because
8
In her first issue, H.M. argues that the evidence is insufficient to show that
the acknowledgment of paternity complies with section 160.302. See Tex. Fam.
Code Ann. § 160.302 (West 2008 & Supp. 2013). We agree that the document
the trial court construed as an acknowledgment of paternity executed by M.M.
does not meet the statutory requirements. See id. However, based on our
conclusion that statutory estoppel under section 160.608 applies to the facts in
11
estoppel under section 160.608 applies to acknowledgment-of-paternity
challenges by virtue of subsection (f), we conclude that the trial court acted within
its discretion by applying section 160.608’s statutory estoppel to this case.9 See
Tex. Fam. Code Ann. § 160.608(f); see also In re Shockley, 123 S.W.3d 642,
650 (Tex. App.—El Paso 2003, no pet.) (noting that the 2001 amendments to the
family code codified paternity by estoppel). Therefore, we overrule rule H.M.’s
second issue.
this case, and because the trial court determined that H.M. was estopped from
challenging D.G.’s paternity under that section, the trial court’s error with regard
to the acknowledgment of paternity’s ability to satisfy the statutory requirements
under section 160.302 is harmless. See id. § 160.608(a), (f); see also Tex. R.
App. P. 44.1.
9
H.M. does not argue that the trial court abused its discretion by finding
that M.M., and thus H.M., would be estopped from denying D.G.’s paternity or
that it would be inequitable to disprove the father-child relationship between
C.M.H.G. and D.G., and the record supports these findings. The trial court found
that D.G.’s testimony was credible and that H.M.’s testimony was “not nearly as
credible.” See Jackson, 116 S.W.3d at 761 (stating that the trier of fact is the
sole judge of the credibility of witnesses and the weight to be given to their
testimony). D.G.’s testimony, documentary evidence, and expert witness
testimony support the finding that M.M. had executed a document in which she
acknowledged D.G. to be the child’s father and recognized that D.G. would be
responsible for the child’s care and upbringing if she were unable to care for the
child, even if that document did not satisfy the statutory requirements under
section 160.302. D.G. and N.G. both testified that H.M. repeatedly and publicly
held D.G. out to be C.M.H.G.’s father. The record also shows that D.G. had
assumed the role of C.M.H.G.’s father from birth to eighteen and a half months;
that C.M.H.G. lived with D.G. for the first eighteen and a half months of her life;
and that D.G. provided for the child’s day-to-day needs during that time.
Therefore, even if H.M. had challenged the trial court’s findings on the
requirements of estoppel, we cannot say that the trial court’s decision was
unsupported by the record or that its decision was arbitrary and capricious. See
Garcia, 363 S.W.3d at 578; Low, 221 S.W.3d at 614.
12
Having determined that the trial court acted within its discretion by applying
statutory estoppel under section 160.608, we do not reach H.M.’s third issue
regarding the elements of equitable estoppel or her fifth issue regarding the
authenticity of M.M.’s signature on the acknowledgment of paternity.10 See Tex.
R. App. P. 47.1.
C. Vacating Genetic Testing Order
In her fourth issue, H.M. argues that the trial court abused its discretion by
vacating its prior order for genetic testing after finding that H.M. was estopped
from challenging D.G.’s paternity.
“A trial court retains continuing control over interlocutory orders and has
the power to vacate, modify, or otherwise alter such orders at any time before a
final judgment is rendered.” Hutton v. AER Mfg. II, Inc., 224 S.W.3d 459, 463
(Tex. App.—Dallas 2007, pet. denied). An order for genetic testing is an
interlocutory order. In re Attorney Gen. of Tex., 272 S.W.3d 773, 777 (Tex.
App.—Dallas 2008, orig. proceeding). Therefore, the trial court had the authority
to vacate its earlier order after finding that H.M. was estopped from challenging
D.G.’s paternity and before it rendered its final judgment. See Hutton, 224
10
Even if we were to reach the merits of H.M.’s fifth issue, the trial court
denied H.M.’s motion after hearing conflicting testimony from H.M.’s and D.G.’s
handwriting experts and made its decision based on its determination of the
witnesses’ credibility and the weight to be given their testimonies. See Villa, 299
S.W.3d at 97; Butnaru, 84 S.W.3d at 211. Therefore, we cannot say that the trial
court abused its discretion by denying H.M.’s motion. See Jackson, 116 S.W.3d
at 761.
13
S.W.3d at 463; see also Shockley, 123 S.W.3d at 650 (noting that section
160.608 codifies paternity by estoppel and allows a court to deny a motion for
genetic testing if the conduct of the mother estops her from denying parentage).
While H.M. asserts that section 160.608 does not apply when genetic testing has
already established paternity, the test results here were not admitted into
evidence before the trial court vacated the testing order.11 Cf. Stamper v. Knox,
254 S.W.3d 537, 542, 544 (Tex. App.—Houston [1st Dist.] 2008, no pet.)
(reviewing trial court’s application of common law equitable estoppel where
genetic testing results were admitted into evidence). Accordingly, because the
trial court vacated the genetic testing order before the results were admitted into
evidence, we overrule H.M.’s fourth issue.
11
Further, because the theory of paternity by estoppel or equitable estoppel
is also the theory that underlies section 160.608, see Hausman v. Hausman, 199
S.W.3d 38, 42 (Tex. App.—San Antonio 2006, no pet.), the application of
statutory estoppel here comports with the public policy upon which estoppel in
paternity actions is based—that children should be secure in knowing who their
parents are, and if a person has acted as the parent and bonded with the child,
that child should not have to suffer the potentially damaging trauma from being
told that the father she has always known is not in fact her father. See Shockley,
123 S.W.3d at 651–52 (stating that the child’s best interests are of paramount
concern when deciding whether to apply paternity by estoppel and courts are
more inclined to impose estoppel to protect an already established and operative
parent-child relationship); Hausman, 199 S.W.3d at 42 (same); see also Tex.
Fam. Code Ann. § 153.001(a)(1) (West 2008) (“The public policy of this state is
to assure that children will have frequent and continuing contact with parents who
have shown the ability to act in the best interest of the child[.]”).
14
IV. Conclusion
Having overruled all of H.M.’s dispositive issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
GABRIEL, J., concurs without opinion.
DELIVERED: March 20, 2014
15