       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-18-00197-CV



                                  Rosalinda Trevino, Appellant

                                                 v.

                                    Brian O’Quinn, Appellee


             FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
                           NO. D-1-FM-17-003420,
            THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING


                            MEMORANDUM OPINION


               In this appeal from a suit to modify the parent-child relationship, Rosalinda

Trevino challenges the trial court’s final order that appointed Brian O’Quinn the child’s sole

managing conservator, appointed Trevino the child’s possessory conservator, and limited

Trevino’s access and possession to supervised visits with the child three times a month. For the

following reasons, we affirm the trial court’s order.


                                           Background

               The child was born in August 2014, her birth certificate designates O’Quinn as

her father, and the parties signed an acknowledgement of paternity shortly after she was born.

               In January 2016, a trial court in Hidalgo County signed an order in a suit affecting

the parent-child relationship that was based on a mediated settlement agreement between the
parties who were never married to each other. The trial court appointed the parties joint-

managing conservators of the child; ordered that Trevino had the exclusive right to designate the

child’s primary residence; ordered O’Quinn to pay child support; and specified O’Quinn’s

periods of possession. O’Quinn’s visitation rights were for a period of four hours every day, at

least two hours on the child’s birthday, and on Saturdays two weekends per month from

8:00 a.m. to 8:00 p.m.

               In February 2017, O’Quinn filed a petition to modify the parent-child relationship

in the trial court in Hidalgo County and motion to transfer the case to Travis County because the

parties and the child had resided in Travis County for over six months preceding the

commencement of the modification suit. The trial court in Hidalgo County granted the motion to

transfer the case to Travis County in March 2017. After the case was transferred, the trial court

in Travis County appointed a guardian ad litem for the child and ordered O’Quinn to submit to

genetic testing.   On September 25, 2017, the trial court also entered interim orders that

designated O’Quinn’s periods of possession and an order requiring a psychological examination

of Trevino. Shortly after entering the interim orders, however, the trial court entered a temporary

restraining order against Trevino, requiring visitation with Trevino to be supervised, and ordered

a writ of attachment requiring the child to be delivered to O’Quinn.

               The trial court’s temporary restraining order and writ of attachment were based on

O’Quinn’s verified motion that was supported by his affidavit and medical records from Dell

Children’s Medical Center. The medical records documented the child’s emergency visit to the

hospital for possible sexual assault on August 30, 2017. The records reflect that the child arrived

at the medical center at 3:22 a.m.; that Trevino was requesting that the child, who was three-

years old, be tested for sexually transmitted diseases; that medical personnel did not perform this

                                                2
testing because they determined it was not necessary; and that Trevino “may [have been] in

mental health crisis as evidenced by labile affect, pressured speech and tangential thought

processing” and “delusional thought processes as evidenced by narrative.”1

                In his affidavit, O’Quinn averred that he had “been denied possession and access

to the child”; that Trevino “regularly neglects the child’s physical and emotional needs,”

providing specific examples; and that Trevino had “unaddressed mental health concerns that

substantially impair the child’s physical health and emotional development and place the child at

immediate risk of physical and emotional harm.” He also averred about Trevino’s threats to

remove the child from Travis County to California or Mexico;2 her threats “to take, keep,


       1
           The narrative in the medical records states in part:


       Mother [Trevino] reports ongoing litigation re: custody of Pt [the child] with Pt’s
       identified father, Brian Albert O’Quinn. . . . Mother reports she wants Pt’s
       “hymen” checked. Mother reports she needs to know if Pt’s “hymen is intact.”
       Mother reports that there are many governmental entities involved with the
       investigation of Pt’s sexual abuse by her identified father, Brian O’Quinn.
       Mother says “FBI,” “International Affairs,” and “Special Victims Unit” are
       investigating allegations that Pt was sexually abused by Brian O’Quinn. Mother
       reports she has “44 hours” of recordings related to the sexual abuse of Pt. Mother
       was unable to produce recordings. Mother reports she is concerned that Pt with
       redness to her vagina, “lesions” to the vagina and Pt said, “Daddy did it!” Mother
       reports that she has asked for Pt to have STI screenings since 2015. . . . Mother
       states, “It’s all a bunch of Fascism.” Mother reports that she feels her “brain is all
       over the place” and doesn’t clarify what this statement means. Mother reports
       Pt’s identified father, Brian O’Quinn, “sends people to my house” and sleeping
       outside her window “every night.” Mother reports Brian O’Quinn slept outside of
       her window, “you know when it was cold outside.” Recent weather in Texas is
       warm at night and hot during the day. . . . Mother reports anger directed at judge
       involved in custodial litigation. Mother reports motivation to harm the judge with
       no plan at this time. Mother reports motivation to harm Pt’s identified father,
       Brian O’Quinn, with no plan at this time. . . .

       2
        O’Quinn averred that Trevino “is estranged from her family in Texas and regularly
communicates with family and friends in Mexico”; she “lacks a reason to stay in the United
                                                  3
withhold, and conceal the child in violation of [his] right to possession and access to the child”;

her “false physical and sexual abuse allegations” against him and others; her demands that the

child be tested for sexually transmitted diseases and to determine if the child’s hymen was intact;

and her statements to the child that O’Quinn “was not the child’s father and that she, [Trevino],

would be taking the child soon and the child would no longer have to see any of ‘these people.’”

               After the child was delivered to O’Quinn pursuant to the court order in

September 2017, the child resided with him, and Trevino only had supervised visitation with the

child during the case’s pendency. Although she had been represented by counsel at times in the

trial court and has counsel on appeal, Trevino represented herself at the time of the January 2018

bench trial. A few days before the trial, Trevino filed a motion for continuance. Among the

asserted grounds, she contended that the “proper parties to this case have not been brought into

the case” because O’Quinn had been determined not to be the child’s biological father based on

the genetic testing, the biological father had not been noticed of the case or hearing, and

Trevino’s current husband, whom Trevino alleged was the child’s presumed father, had not been

notified of the case or hearing. The trial court did not grant Trevino’s motion and proceeded to

trial. See Tex. R. Civ. P. 251.

               The witnesses at trial included the parties, detectives who investigated Trevino’s

allegations against O’Quinn, O’Quinn’s mother, and the guardian ad litem.           The admitted

exhibits included the child’s birth certificate, the parties’ acknowledgement of paternity, the




States as she is presently financially independent, able to work outside the United States, and is
presently unemployed”; and she “has a long history of failing to comply with a court order
including the most recent order issued by this court.”
                                                4
medical records from Dell Children’s Medical Center concerning the child’s emergency visit on

August 30, 2017, and the psychological evaluation of Trevino dated September 30, 2017.

               O’Quinn testified about the parties’ relationships with each other and the child

and his reasons for requesting modification. He testified that he had been involved with the child

from her birth, he was concerned that Trevino might try to take the child to live in Mexico, and

Trevino’s allegations against him and others were “all false” and “heinous and extreme

allegations.” He continued to request that the court limit Trevino to supervised visits “because

[he did not] know what [Trevino was] capable of physically” and that he “[felt] like the first

chance she gets she is going to leave with [the child].” O’Quinn’s mother also testified that, if

the trial court returned the child to Trevino, she was “afraid [Trevino] would take [the child] and

leave the country and we would never see [the child] again.” She testified that the child was

“very happy” living with O’Quinn and did not want to talk to or be returned to Trevino, and she

provided details about the child’s home life and daily routine since she had been living with

O’Quinn. As to the child’s interactions with Trevino, O’Quinn’s mother testified that the child

had “night terrors” after she had conversations with Trevino.

               The detectives testified about their respective investigations of Trevino’s

allegations against O’Quinn. An Austin Police Department detective testified that all cases had

been closed as “unfounded” and that “prosecution [had been] declined”; that some of Trevino’s

allegations “caused [him] to wonder maybe about her mental state” because they “just seemed a

little far-fetched”;3 and that he was concerned for the child based on Trevino’s mental state. He


       3
           One of Trevino’s allegations was that O’Quinn and “possibly his mother had filed [the
child]’s teeth to expose cavities to make [Trevino] appear to be an unfit parent,” but evidence
showed that she had not taken the child to the dentist.


                                                5
testified that he investigated 13 different allegations, beginning in February 2017, and that many

of the allegations came around the time of court hearings.4 A Pflugerville Police Department

detective testified that he was dispatched to Trevino’s home around 1:00 a.m. on August 30, 2017,

for a welfare check after Trevino had reported sexual assault of the child. After his arrival at her

house, Trevino called EMS, and EMS transported the child to Dell Children’s Medical Center.

As part of the detective’s investigation, he interviewed Trevino and spoke with medical

personnel at the medical center. The personnel from the medical center informed him that, while

Trevino was there with the child, Trevino was “going through a psychotic episode”; she

“appeared to be delusional, paranoid”; and she stated “repeatedly” that she “wanted to harm

[O’Quinn] and the bitch Judge.” Based on his interactions with Trevino, the Detective described

her “emotional state” as “unstable.” He also testified about his concerns because of photographs

of the child that Trevino showed to him on her phone, including “completely nude” photographs

and a photograph of a “hand that was opening the child’s vagina.” Based on his investigation, he

determined that there had been no sexual assault.

               Trevino testified about the parties’ relationships with each other and the child, her

allegations against O’Quinn and others, and the parties’ actions during the case’s pendency.

Although she testified that the child “does need” O’Quinn and that she wants O’Quinn to stay in

the child’s life, she made allegations against O’Quinn and others.           Trevino alleged that

O’Quinn’s mother had poisoned her, that O’Quinn had vandalized her car, and that O’Quinn had

allowed rectal penetration of the child on “more than 15 occasions.”            Trevino, however,

conceded that the alleged rectal penetrations were when a doctor was taking the child’s


       4
         He also testified about a “timeline” or “chart” that Trevino had provided him. Trevino
contended to the trial court that she “presented the timeline with 508 different crimes.”
                                                 6
temperature by using a rectal thermometer. Although the evidence was conflicting, there was

evidence that Trevino previously had accused O’Quinn of shooting a gun at her. At trial, she

denied that she had accused O’Quinn of shooting a gun at her. She testified that, during a trip to

Louisiana, an unidentified person shot a gun at her but that “conveniently enough the person who

shot at [her] was from Texas.”

               The final witness was the guardian ad litem. She testified about her involvement

in the case, including her interactions with the parties and the child. She expressed concern

about Trevino’s “mental health” and its effect on the child.       Trevino was diagnosed with

Schizotypical Personality Disorder. The guardian ad litem recommended that Trevino’s visits

with the child continue to be supervised and limited to two-hour visits on a weekly basis until

Trevino completed a three-month Dialectical Behavior Therapy program.

               In the final order, the trial court generally followed the guardian ad litem’s

recommendations concerning access and possession. The trial court appointed O’Quinn the

child’s sole managing conservator, Trevino the child’s possessory conservator, and gave Trevino

supervised visits three times each month with increased hours upon completion of the three-

month therapy program.       Specifically, the trial court ordered that Trevino was entitled to

supervised visitation with the child as follows:


       Phase I: on the 1st, 3rd, and 5th Saturdays of each month beginning at 10:00 a.m.
       and concluding at Noon the same day.

       Phase II: on the 1st, 3rd, and 5th Saturdays of each month beginning at 10:00 a.m.
       and concluding at 6:00 p.m. the same day.

       It is ordered that Rosalinda Trevino’s possession and access shall begin at Phase I.
       Rosalinda Trevino’s possession and access shall move to Phase II upon successful
       completion of the 3-month Dialectical Behavior Therapy program at Seton
       Behavior Health Care.


                                                   7
The trial court also entered findings of fact and conclusions of law. This appeal followed.


                                             Analysis

Preservation of Error

               As a preliminary matter, O’Quinn argues that Trevino failed to preserve any error

for this Court’s review and that Trevino has not brought forth a sufficient record to show that the

trial court erred. O’Quinn asserts that Trevino only requested a partial reporter’s record and that

she “did not offer the evidence referenced in her brief supporting her arguments on appeal to the

trial court.” See Tex. R. App. P. 33.1(a) (addressing preservation of appellate complaints),

34.6(c) (addressing effect on appellate points or issues when appellant requests partial reporter’s

record). Although we agree with O’Quinn that our review is limited to the evidence that is

properly in the appellate record, we conclude that Trevino sufficiently requested the reporter’s

record, and it is adequate for us to consider the issues in her appeal. Thus, we decline to find that

she failed to preserve the issues that she raises on appeal based on an insufficient record, and we

turn to our analysis of her issues.


Restrictions on Trevino’s Access to the Child

               In her first issue, Trevino argues that the trial court abused its discretion “by

placing extreme restrictions on [her] access to the child.” She argues that “there was no evidence

that [she] had physically harmed the child,” “there was virtually no evidence of any alleged

emotional harm suffered by the child,” and “[t]here was no evidence produced that the child’s

emotional well-being was affected by [her] alleged improper conduct against [O’Quinn].”

               In its findings of fact, the trial court’s findings in support of varying the period of

possession from a standard possession order and requiring supervised visits included:

                                                 8
           •   The mental health diagnosis of Rosalinda Trevino.

           •   The evidence of poor decision making of Rosalinda Trevino, . . . .

           •   The evidence of contradictory testimony of Rosalinda Trevino regarding
               the paternity of the child at issue.

           •   The continued, unfounded allegations by Rosalinda Trevino against Brian
               O’Quinn and the child’s pediatrician for sexual assault.

           •   There is credible evidence that awarding Rosalinda Trevino unsupervised
               access to the child would endanger the child’s physical health and
               emotional development.

           •   The Modified Phased Possession Order is designed to protect the safety
               and well-being of the child.

           •   The Modified Phased Possession Order is in the best interest of the child.


               When a trial court modifies conservatorship, we review that decision under an

abuse-of-discretion standard. See Zeifman v. Michels, 212 S.W.3d 582, 587–88 (Tex. App.—

Austin 2006, pet. denied) (explaining that trial court’s decision to modify conservatorship is

reviewed under abuse-of-discretion standard and describing two-pronged inquiry as “whether the

trial court had sufficient information on which to exercise its discretion” and “whether the trial

court erred in its application of discretion”); see also Gillespie v. Gillespie, 644 S.W.2d 449, 451

(Tex. 1982) (holding that “trial court did not abuse its discretion in awarding custody of minor

child to her father”; concluding that there was “sufficient competent evidence to support the trial

court’s determination that the best interest of the child would be served by appointing her father

as managing conservator”; and explaining that “trial court is given wide latitude in determining

the best interests of a minor child”). The trial court, the observer of “the witnesses’ demeanor

and personalities,” does not abuse its discretion “as long as some evidence of a substantive and

probative character exists to support the trial court’s decision.” Zeifman, 212 S.W.3d at 587.


                                                 9
               A trial court may modify conservatorship and possession and access to a child,

including modifying the “frequency and duration of visits,” if the petitioning parent shows that

the circumstances of the child, a conservator, or some other affected party “have materially and

substantially changed” and that modification would be in the best interest of the child. See Tex.

Fam. Code § 156.101(a)(1); In re L.M.M, No. 03-04-00452-CV, 2005 Tex. App. LEXIS 7191, at

*28–29 (Tex. App.—Austin Aug. 31, 2005, no pet.) (mem. op.) (explaining that trial court has

discretion to determine terms and conditions of conservatorship, including “frequency and

duration of visits, as well as the limitations and safeguards to be placed on such visits”). The

child’s best interest is the “primary consideration of the court in determining the issue of

conservatorship and possession of and access to the child.” Tex. Fam. Code § 153.002.

               But “[t]he terms of an order that denies possession of a child to a parent or

imposes restrictions or limitations on a parent’s right to possession of or access to a child may

not exceed those that are required to protect the best interest of the child.” Id. § 153.193; see

id. § 153.256 (setting forth guidelines when trial court orders terms of possession under order

other than standard possession order); L.M.M., 2005 Tex. App. LEXIS 7191, at *29–30

(explaining that trial court cannot deny conservator’s rights of possession and access absent

finding that child’s physical and emotional welfare would be endangered by possession and

access and that “any limitations placed on such rights cannot exceed that required to protect the

child’s best interest”). We carefully review “severe limits” on a parent’s contact with his or her

children. See Blackwell v. Humble, 241 S.W.3d 707, 720 (Tex. App.—Austin 2007, no pet.)

(explaining that “severe limits placed on [mother’s] contact with her children still require our

careful review”).



                                               10
                Factors that courts have cited in support of their decisions to limit a parent’s

possession and access to her child to supervised visits include the parent’s inability to follow

court orders, attempts to alienate the child from the other parent, and actions that improperly

deny the other parent contact with the child. See In re Harrison, 557 S.W.3d 99, 132–33 (Tex.

App.—Houston [14th Dist.] 2018, pet. denied) (concluding that trial court “reasonably could

have concluded that maintaining supervised visits and limiting [mother]’s periods of possession

were the minimal restrictions necessary to protect the children’s best interest”; citing evidence

that mother “displayed an inability to follow court orders grounded on the child’s best interests,

secreted the children from [the father] when she shared custody with him, and attempted to

alienate the children from [the father]”; and collecting cases in which attempt to alienate child

from other parent was “guiding consideration in making possession and access determinations”);

see also Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (listing non-exclusive factors for

making best interest determinations including “emotional and physical danger to the child now

and in the future,” “the parental abilities of the individuals seeking custody,” and “acts or

omissions of the parent which may indicate that the existing parent-child relationship is not a

proper one”).

                In this case, evidence showed that, in violation of court orders and a Rule 11

agreement between the parties, Trevino repeatedly refused O’Quinn’s designated periods of

possession and that she told the child that O’Quinn was not her father. Evidence showed that, in

violation of a court order, Trevino did not allow O’Quinn to see the child for a period of five or

six months after O’Quinn refused Trevino’s request that he pay for her to take the child on a trip.

Trevino also refused O’Quinn’s designated periods of possession that were specified in the Rule

11 Agreement.

                                                11
                 Other evidence at trial showed that Trevino made false reports against O’Quinn

and others, including allegations of sexual abuse of the child, after O’Quinn filed the

modification petition. Trevino’s allegations to the police, Child Protective Services, and medical

personnel resulted in multiple investigations that were all closed with no action being taken

against O’Quinn. O’Quinn also testified that: (i) Trevino’s allegations were false, (ii) he gave

“everything” including his computer to the investigators, and (iii) he had never been arrested or

convicted of a crime. O’Quinn and the guardian ad litem further testified about their concerns

for the child because of Trevino’s mental health issues, and O’Quinn and his mother testified

about their concerns that Trevino would try to leave the country with the child and go to Mexico.

Trevino also testified that she was married to a man named Torres who lived in Mexico and that

Torres was willing to take care of the child. Although Trevino testified that she would not take

the child to Mexico, she testified that she did not know if Torres was allowed in the United

States or how she would raise the child with Torres if he was in Mexico and she was in the

United States.

                 The evidence included the psychological evaluation of Trevino that contained her

diagnosis of Schizotypical Personality Disorder and the guardian ad litem’s recommendation that

Trevino complete a Dialectical Behavioral Therapy program before the length of her visits with

the child was increased. Evidence showed that this disorder was “very difficult to treat” and that

its traits included “extreme paranoid ideation,” “[i]ntense social anxiety,” and dysfunctional

relationships. Other evidence showed that Trevino’s conduct with the child was improper,

including the Pflugerville Police Department detective’s testimony about the photographs of the

child on Trevino’s phone, the evidence concerning her conduct and statements during the child’s



                                                12
emergency visit at Dell Children’s Medical Center in August 2017, and the child’s “night

terrors” after she talked with Trevino.

               Based on our careful review of the record, we conclude that there was “evidence

of a substantive and probative character” that protecting the child’s best interest required

Trevino’s access to the child to be limited to three supervised visits each month. See Harrison,

557 S.W.3d at 112, 132–33 (concluding that “some evidence of a substantive and probative

character supports the trial court’s decision” to limit parent to four hours of “supervised

possession” twice a month); see also Tex. Fam. Code § 153.193; Holley, 544 S.W.2d at 371–72;

Hinojosa v. Hinojosa, No. 14-11-00989-CV, 2013 Tex. App. LEXIS 4504, at *20 (Tex. App.—

Houston [14th Dist.] Apr. 9, 2013, no pet.) (mem. op.) (“[A] trial court is permitted to place

conditions on a parent’s access, such as supervised visitation, if necessary for the child’s best

interest.”); Zeifman, 212 S.W.3d at 587–88.

               As support for her position that the trial court abused its discretion by limiting her

access to the child, Trevino cites this Court’s opinion in Blackwell v. Humble. We, however, do

not find our analysis in this case inconsistent with our analysis in that case. In Blackwell, the

mother challenged the trial court’s decision to limit her access to her children to two supervised

visits each month. See 241 S.W.3d at 712. The trial court did not make findings of fact, but it

continued the mother’s appointment as joint managing conservator. Id. at 720. In that context,

we explained that “[t]he trial court’s denial of [the mother]’s possession and its severe

restrictions on her access to the children give rise to implied findings that conflict with those

arising from her continued status as a joint managing conservator of the children.” Id. Given

this conflict in the findings, we reversed the portion of the judgment restricting the mother’s

access and remanded the case to the trial court for further proceedings, explaining that we

                                                13
“[could not] adequately review the trial court’s severe restriction on [the mother]’s possession of

and access to her children.” Id. at 723. In contrast, the trial court here made express findings,

including that its modified phased possession order was in the child’s best interest, and appointed

O’Quinn the child’s sole managing conservator.

                Because we have concluded that there was evidence of a substantive and

probative character to support the trial court’s decision to limit Trevino’s possession and access

to the child to three supervised visits each month, we conclude that the trial court did not abuse

its discretion by doing so. See Harrison, 557 S.W.3d at 132–33; Zeifman, 212 S.W.3d at 587–88;

see also In re O.G., No. 05-13-01263-CV, 2014 Tex. App. LEXIS 7021, at *7 (Tex. App.—

Dallas June 26, 2014, no pet.) (mem. op.) (explaining that “question of conservatorship of a child

is left to the trial court’s discretion because it is in the best position to observe the demeanor and

personalities of the witnesses and can feel the forces, powers, and influences that cannot be

discerned by merely reading the record” (citation and internal citations omitted)). We overrule

Trevino’s first issue.


Parentage of Child and Motion for Continuance

                In her second issue, Trevino argues that the trial court erred by adjudicating

O’Quinn to be the child’s father and by failing to grant a continuance. She contends that

O’Quinn was not the presumed father because he was not married to her, see Tex. Fam. Code

§ 160.204 (addressing presumptions of paternity applicable to husbands), and that he was not the

biological father based on genetic testing. She further argues that the trial court should have

granted her motion for continuance because the “true father was not made a party of these

proceedings so that the child’s rights could be adjudicated.”


                                                 14
                The trial court, however, did not adjudicate that O’Quinn was the child’s

father but ordered that Trevino was estopped from denying paternity. See Stamper v. Knox,

254 S.W.3d 537, 543–44 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (addressing application

of equitable estoppel in paternity action and stating elements of doctrine); Hausman v. Hausman,

199 S.W.3d 38, 42–43 (Tex. App.—San Antonio 2006, no pet.) (same); see also In re Shockley,

123 S.W.3d 642, 652 (Tex. App.—El Paso 2003, no pet.) (explaining policy reasons for applying

estoppel in paternity actions to include that “children should be secure in knowing who their

parents are” and that, “[i]f a person has acted as the parent and bonded with the child, the child

should not be required to suffer the potentially damaging trauma that may come from being told

that the father she has known all her life is not in fact her father).”

                In the final order in this case, the trial court found:


            •   Petitioner, Brian O’Quinn is the only father [the child] has ever known;

            •   Petitioner Brian O’Quinn had no reason to ever question the paternity of
                [the child];

            •   Petitioner Brian O’Quinn was present at the birth of [the child] and signed
                the child’s birth certificate as her father;

            •   Respondent gave the child Petitioner’s last name;

            •   Respondent and Petitioner executed an acknowledgment of paternity in
                the hospital after [the child]’s birth on August 14, 2014;

            •   For the first three and a half years of [the child]’s life Respondent,
                Rosalinda Trevino actively misrepresented that Brian O’Quinn was the
                father of [the child];

            •   Respondent knew paternity of [the child] might be in question and never
                disclosed this fact to Petitioner;

            •   Respondent voluntarily entered in to a Court Ordered parenting plan with
                Petitioner regarding [the child] in December of 2015 when [the child] was
                just one year old;

                                                   15
           •   Brian O’Quinn was adjudicated the father of [the child] in a prior final
               court order; and Respondent intended for Petitioner to take the role of
               father for [the child];

           •   The Court further finds that it is in the best interest of [the child] to estop
               Respondent Rosalinda Trevino from denying Petitioner Brian O’Quinn’s
               paternity.


The trial court also entered findings of fact in support of its decision to estop Trevino from

challenging paternity that track the elements of estoppel and concluded that she was equitably

estopped from litigating the parentage of the child.        See Stamper, 254 S.W.3d at 543–44;

Hausman, 199 S.W.3d at 42–43.

               Trevino argues that “[e]stoppel as stated in Shockley does not apply because there

was a presumed father in this case.” The 2016 final order that was based on the parties’

mediated settlement agreement, however, established O’Quinn as the child’s father, and Trevino

did not appeal from that order.      See Tex. Fam. Code §§ 160.201 (stating that father-child

relationship is established between man and child by father’s acknowledgement of paternity);

160.308 (generally precluding collateral attack on acknowledgement of paternity “after the

issuance of an order affecting the child identified in the acknowledgement, including an order

relating to support of the child”); 160.637 (generally binding all signatories to acknowledgement

of paternity); see also Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009) (“As with other final,

unappealed judgments which are regular on their face, divorce decrees and judgments are not

vulnerable to collateral attack.”); Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (concluding

that party could not collaterally attack divorce decree and that it was final absent direct appeal).

               As part of her second issue, Trevino also argues that the trial court erred by failing

to grant a continuance because the “true father was not made a party of these proceedings so that



                                                 16
the child’s rights could be adjudicated.” Among the grounds asserted in her written motion for a

continuance that was filed a few days before the trial, Trevino asserted that the “proper parties to

this case have not been brought into the case.” She contended that the child’s biological and

presumed fathers should have been notified of the case or hearing and were not.

                   We review a trial court’s denial of a motion for continuance for abuse of

discretion.       See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)

(reviewing trial court’s denial of motion for continuance for abuse of discretion and describing

abuse of discretion standard of review); Aduli v. Aduli, 368 S.W.3d 805, 818 (Tex. App.—

Houston [14th Dist.] 2012, no pet.) (stating that appellate courts review denial of motion for

continuance for abuse of discretion). A continuance may not be granted “except for sufficient

cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex. R. Civ.

P. 251. The trial court’s findings of fact included:


              •    Good cause did not exist to remove the case from the docket.

              •    There was no sufficient cause to support a continuance of the matter
                   before the Court.

              •    Rosalinda Trevino’s motion for continuance was brought solely for delay.


Consistent with the trial court’s findings, we observe that the trial court was not adjudicating

paternity in this modification suit between Trevino and O’Quinn. In the procedural context of

this case, the persons whom Trevino alleged were the child’s alleged presumed and biological

fathers were non-parties who were not entitled to notice, see Tex. R. Civ. P. 21 (setting forth

service requirements including that parties be served with notice of trial setting), and, thus, any




                                                  17
lack of notice to them was not a sufficient reason for a continuance.5 On this record, we

conclude that the trial court did not abuse its discretion when it denied Trevino’s request for a

continuance a few days before the scheduled trial.        See Joe, 145 S.W.3d at 161; Aduli,

368 S.W.3d at 818.

              We overrule Trevino’s second issue.


                                          Conclusion

              Having overruled Trevino’s issues, we affirm the trial court’s final order.



                                            __________________________________________
                                            Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Baker

Affirmed

Filed: August 30, 2019




       5
            Trevino did not attempt to bring the men whom she alleges are the presumed and
biological fathers into this suit. See Tex. R. Civ. P. 37. She also does not explain how she has
standing to complain about lack of notice to non-parties. See SBI Invs., LLC v. Quantum
Materials Corp., No. 03-17-00863-CV, 2018 Tex. App. LEXIS 1740, at *12 (Tex. App.—Austin
Mar. 8, 2018, no pet.) (mem. op.) (concluding that appellants failed to show how they were
“personally aggrieved” by alleged lack of notice to third party of hearing setting). Further, she
does not explain why she was unable to notify the alleged biological or presumed fathers of the
case that had been pending for approximately one year before the trial occurred. See, e.g., Joe
v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (considering nonexclusive
factors when deciding whether trial court abused discretion in denying motion for continuance
seeking additional time to conduct discovery, including length of time case had been on file and
whether party seeking continuance had exercised due diligence to obtain discovery that
it sought).
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