




Affirmed, in Part; Reversed and Remanded, in Part; and Opinion filed
July 24, 2008







Affirmed, in Part; Reversed and Remanded, in Part; and Opinion filed July 24,
2008.
 
 
In The
 
Fourteenth Court of
Appeals
_______________
 
NO. 14-06-00864-CV
_______________
 
IN THE INTEREST OF S.R.B.
                                                                                                                                               

On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2005-51814
                                                                                                                                               

 
O P I N I O N




The
trial court signed an AAdjudication of Nonparentage,@ ruling that Jermaine Braxton Flowers
is not the biological father of two minor children: T.M.T. and S.R.B.  The
Attorney General of Texas appeals from the portion of the order finding that an
AAcknowledgment of Paternity@ (AAOP@) executed by Flowers was invalid and
adjudicating his non-paternity relative to S.R.B.[1] 
In a single issue, the Attorney General contends the trial court=s ruling violated pertinent
provisions of the Texas Family Code.  We reverse and remand the portion of the
Adjudication of Nonparentage in which the trial court ruled the AOP was invalid
and adjudicated Flowers=s non-paternity relative to S.R.B.  We affirm the
unchallenged portion of the Adjudication of Nonparentage concerning T.M.T.
I.  Background
The
Attorney General filed a APetition To Establish The Parent-Child Relationship And
Petition In Suit Affecting The Parent-Child Relationship (AOP)@ concerning T.M.T. and S.R.B. 
Shenika Thomas is the mother of both children.  The Attorney General alleged
Flowers is the biological father of both children.  However, the Attorney
General=s pleadings differed relative to
paternity of each child.
In
particular, the Attorney General sought a determination that Flowers is T.M.T.=s father.  The Attorney General also
requested genetic testing if any party denied Flowers=s paternity of T.M.T. 
With
respect to S.R.B., Thomas and Flowers had both previously signed an AOP  on the
form promulgated by the Texas Bureau of Vital Statistics.  Therefore, the
Attorney General did not seek any determination regarding paternity of S.R.B. 
Rather, the Attorney General asserted that Flowers=s paternity of S.R.B. had been
established by the AOP.
The
Attorney General ultimately sought orders establishing conservatorship and
requiring Flowers to pay support for both children.  Flowers has not appeared
in the trial court or on appeal.
The
trial court conducted a hearing on the petition.  To the surprise of the
Attorney General, Thomas testified Flowers is not S.R.B.=s father, despite his signature on
the AOP.  Instead, Thomas identified another man as the father.  The trial
court orally announced its intent to dismiss the case based on this testimony. 
The Attorney General objected because Flowers had executed the AOP.




On June
30, 2006, the trial court signed an Adjudication of Nonparentage relative to
both children.  On the order, the trial court handwrote the reason for its
ruling with respect to S.R.B.:
The court after taking testimony regarding the Acknowledgment
of (AOP) Paternity found the AOP is not valid.  Shenika Thomas testified on the
record Jermaine Braxton Flowers is not the biological father and the AOP was
not properly executed.  Therefore, the court finds Jermaine Braxton Flowers is
not the biological father of [S.R.B.].
The
Attorney General timely filed a motion for new trial, contending the trial
court improperly found that the AOP was invalid.  The Attorney General also
requested that the trial court, at least, order genetic testing before
adjudicating non-paternity.  After a hearing, the trial court denied the
motion.  The Attorney General appeals from the portion of the Adjudication of
Nonparentage pertaining to S.R.B. 
In
addition, paternity testing revealed that Flowers is not T.M.T.=s biological father.  Accordingly, in
the Adjudication of Nonparentage,  the trial court also ruled that Flowers is
not the father of T.M.T.  The Attorney General does not appeal from the
Adjudication of Nonparentage concerning T.M.T.
II.  Analysis
In its
sole issue, the Attorney General contends the trial court violated pertinent
provisions of the Texas Family Code by finding the AOP was invalid and
adjudicating Flowers=s non-paternity relative to S.R.B.
Subchapter
D of the Texas version of the Uniform Parentage Act governs voluntary
acknowledgment of paternity.  See Tex. Fam. Code Ann. '' 160.301B.316 (Vernon 2002 & Supp. 2007). 
Under Subchapter D, the mother and a man claiming to be the biological father
of a child may sign an AOP with intent to establish the man=s paternity.  Id. ' 160.301.  Significantly, section
160.305(a) of Subchapter D provides:




Except as provided by Sections 160.307 and 160.308, a
valid acknowledgment of paternity filed with the bureau of vital statistics is
the equivalent of an adjudication of the paternity of a child and confers on
the acknowledged father all rights and duties of a parent.
Id. ' 160.305(a).
The
referenced sections 160.307 and 160.308 prescribe the process for rescinding or
challenging an AOP.  See id.  '' 160.307, 160.308.  In particular, a
signatory may rescind an AOP Aby commencing a proceeding to rescind@ within a specified time period.  Id.
' 160.307.  Thereafter, a signatory Amay commence a proceeding to challenge
the [AOP] . . . only on the basis of fraud, duress, or material mistake of
fact.@  Id. ' 160.308(a).  A party challenging an
AOP bears the burden of proof.  Id. ' 160.308(b).  A proceeding to rescind
or challenge an AOP must be conducted in the same manner as a proceeding to
adjudicate parentage under Subchapter G of the Uniform Parentage Act.  Id.
' 160.309(d); see Tex. Fam.
Code Ann. '' 160.601B.637 (Vernon 2002 & Supp. 2007) (comprising Subchapter G, which
governs a proceeding to adjudicate parentage).
Moreover,
Subchapter C of the Uniform Parentage Act generally governs the Aparent-child relationship.@  See Tex. Fam. Code Ann. '' 160.201B.204 (Vernon 2002 & Supp. 2007). 
Subchapter C confirms that the father-child relationship is established by,
among other methods, an effective AOP by the man under Subchapter D unless the
AOP has been rescinded or successfully challenged.  Id. ' 160.201(b)(2).
The
Attorney General contends the trial court erred by determining the AOP was
invalid because no legal ground for challenge under section 160.308(a) was
alleged or proved. We agree.




Preliminarily,
we note that the trial court=s order is not exactly clear regarding its reason for ruling
the AOP was invalid.  In particular, the trial court stated on the order, AShenika Thomas testified on the
record Jermaine Braxton Flowers is not the biological father and the AOP
was not properly executed.@  (emphasis added).  It is unclear whether the trial court
found two separate reasons to invalidate the AOP: (1) Thomas testified Flowers
is not the father; and (2) the AOP was not properly executed on its face; or
whether the trial court invalidated the AOP based solely on Thomas=s testimony, despite an AOP properly
executed on its face.  The trial court=s comments at the hearing on the
Attorney General=s petition indicate the court invalidated the AOP based
solely on Thomas=s testimony.  Nevertheless, even if the trial court found two
separate reasons to invalidate the AOP, we cannot uphold its order on either
ground.  
First,
no party argued or presented evidence that the AOP was not properly executed on
its face.  Specifically, no party asserted that the statutory requirements for
execution were not satisfied.  See id. ' 160.302 (prescribing requirements
for execution of an AOP).  Moreover, Thomas testified Flowers indeed signed the
AOP; therefore, Thomas provided no testimony negating that Flowers properly
executed the AOP.  Instead, Thomas disclaimed Flowers=s paternity despite his signature on
the AOP.  Therefore, the trial court erred if it found the AOP was invalid
because it was not properly executed on its face.  




Next, we
also conclude the trial court erred if it invalidated the AOP based solely on
Thomas=s testimony.  When the trial court
signed the Adjudication of Nonparentage, the time period for rescission under
section 160.307 had expired.[2]  No signatory
commenced a proceeding to rescind the AOP within this time period.  Therefore,
section 160.308 would govern any challenge to the AOP.  Id.  ' 160.308(a).  When the trial court
signed its order, the period for challenging the AOP under section 160.308 had
not expired.[3]  However, no
signatory had commenced a proceeding to challenge the AOP, much less on any
ground set forth in section 160.308(a).  See id.
The
Uniform Parentage Act does not authorize a trial court to invalidate an AOP
based solely on testimony questioning the male signatory=s paternity absent rescission of, or
successful challenge to, the AOP.  See id.  '' 160.301B.316; 160.201(b)(2).  We cannot
characterize Thomas=s testimony as commencement of a proceeding to challenge the
AOP.  Further, her testimony did not constitute proof of a ground for challenge
set forth in section 160.308(a).  See id. ' 160.308(a).
Accordingly,
the trial court erred by finding the AOP was invalid and adjudicating Flowers=s non-paternity relative to S.R.B. 
We sustain the Attorney General=s sole issue.[4]
 
 




III.  Conclusion
We
reverse the portion of the Adjudication of Nonparentage in which the trial
court ruled the AOP was invalid and adjudicated Flowers=s non-paternity relative to S.R.B.,
and we remand for further proceedings consistent with this opinion.  Because
the Attorney General does not appeal the portion of the Adjudication of
Nonparentage concerning T.M.T., we affirm that part of the order.
 
 
/s/        Charles
W. Seymore
Justice
 
Judgment rendered and Opinion filed July 24, 2008.
Panel consists of
Justices Fowler, Frost, and Seymore.
 




[1]  The AOP was executed by AJermaine Braxton,@ whereas AJermaine Braxton Flowers@ was referenced in the
Adjudication of Nonparentage.  The record contains no explanation for this
discrepancy between names.  However, the social security numbers referenced in
the AOP and Adjudication of Nonparentage reflect AJermaine
Braxton@ and  AJermaine Braxton Flowers@ are the same man.  We will
refer to him as AFlowers@ throughout this opinion.


[2]  A signatory must commence a proceeding to rescind
before the earlier of: (1) the 60th day after the effective date of the AOP; or
(2) the date of the first hearing in a proceeding to which the signatory is a
party to adjudicate an issue relating to the child.  See Tex. Fam. Code
Ann. ' 160.307.  Generally, an AOP takes effect on the date
of the child=s birth or the filing of the document with the Bureau
of Vital Statistics, whichever occurs later.  Id. ' 160.304(c).  In this case, the AOP was filed with the
Bureau of Vital Statistics after S.R.B.=s
birth and thus took effect upon filing.  See id.  The record does not
reflect that a hearing occurred before the effective date of the AOP.  Thus, a
signatory was required to commence a proceeding to rescind the AOP by the 60th
day after its effective date.   See id. ' 160.307.  This period expired two years before the
trial court=s order.


[3]  A proceeding to challenge the AOP must be commenced
before the fourth anniversary of the date the AOP was filed with the Bureau of
Vital Statistics unless the signatory was a minor on the date he/she executed
the AOP, which extends the period for challenge.  See Tex. Fam. Code
Ann. ' 160.308(a).  Thomas was a minor when she signed the
AOP; but, Flowers was not a minor when he signed it.  The trial court rendered
its order less than four years after the AOP was filed with the Bureau of Vital
Statistics, so the period for challenge by either signatory had not expired.


[4]  Finally, we note the Attorney General contends the
trial court was required, at a minimum, to order genetic testing before
adjudicating Flowers=s non-paternity of S.R.B.  Although the Attorney
General emphasizes this argument in its brief, we construe it as an alternative
contention.  Specifically, as the Attorney General recognizes, proof by genetic
testing of the male signatory=s non-paternity
constitutes a material mistake of fact under section 160.308(a).  See
Tex. Fam. Code Ann. ' 160.308(d).  Further, in a proceeding to adjudicate
paternity, the paternity of a child having an acknowledged father may be
disproved only by admissible results of genetic testing excluding him, or
identifying another man, as the father.  Id. ' 160.631.  Additionally, subject to a few exceptions,
a court shall order genetic testing if requested by a party in a proceeding to
determine parentage.  Tex. Fam. Code Ann. '
160.502(a) (Vernon 2002).  However, there was no basis for ordering genetic
testing relative to S.R.B. because no signatory commenced a proceeding to
rescind or challenge the AOP in the first place.  Moreover, adjudication of
paternity was not necessary, and this case was not a proceeding to determine
parentage of S.R.B.  Instead, based on the AOP, the Attorney General proceeded
directly to its request for conservatorship and support orders relative to
S.R.B.  Thus, the trial court erred by adjudicating non-paternity of S.R.B.,
irrespective of the absence of genetic testing.


