Opinion filed May 23, 2013




                                      In The


        Eleventh Court of Appeals
                                   __________

                             No. 11-11-00233-CV
                                 __________

                IN THE INTEREST OF K.B.H., A CHILD


                     On Appeal from the 70th District Court
                               Ector County, Texas
                         Trial Court Cause No. A-128,986



                     MEMORANDUM OPINION
      K.B.H. was born on February 23, 2006, during Courtney Shawn Harvel’s
marriage to Donnie Harvel. DNA testing on May 5, 2009, confirmed that Tadd C.
Sprayberry was K.B.H.’s biological father. Sprayberry filed suit to adjudicate
K.B.H.’s parentage in February 2010, less than three weeks before the statute of
limitations expired. See TEX. FAM. CODE ANN. § 160.607 (West Supp. 2012). The
trial court held that Sprayberry was equitably estopped from seeking that relief and
that such relief was not in K.B.H.’s best interest. We affirm.
         Courtney married Donnie in 1999. K.B.H. was born in 2006 during that
marriage. Donnie believed that K.B.H. was his biological child. Courtney was
unsure because she and Sprayberry had had an intimate affair prior to K.B.H.’s
birth. The affair began in 2002 and continued after K.B.H.’s birth. Sprayberry
acknowledged that Courtney and he had unprotected sex months before K.B.H.’s
birth.
         Sprayberry suspected that he might be K.B.H.’s father. Courtney claimed
that Sprayberry told her that he knew the time, date, and moment of conception.
Sprayberry had suspected Courtney was not on any birth control regimen when
they had their affair, and according to Courtney, Sprayberry said he knew in his
heart that he was K.B.H.’s father.
         Sprayberry never revealed anything to Donnie about his suspicions
concerning K.B.H.’s paternity and never told Donnie about his affair with
Courtney. Courtney also kept the affair hidden from her husband, who did not
know about the affair or Sprayberry’s parentage. Sprayberry secured DNA testing
and confirmed his parentage on May 5, 2009. Sprayberry testified that he decided
to obtain the testing when he learned of the Harvels’ separation.
         The Harvels’ separation arose when Courtney told Donnie about her affair
with Sprayberry. At this time, Sprayberry and Courtney began dating openly. The
Harvels briefly attempted to reconcile, but at the time of trial, intended to divorce.
Courtney and Sprayberry had also ended their affair, and Courtney has maintained
that she does not want Sprayberry involved with K.B.H., in part, because of his
multiple affairs.
         Sprayberry filed suit and asked the court to declare that he was K.B.H.’s
father. Sprayberry admitted that he had not had frequent contact with K.B.H. and
always visited her with Courtney present. Sprayberry also admitted that K.B.H.
had never spent the night at his house and that he was not aware of her
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extracurricular activities, and he conceded that the Harvels had been the daily
caregivers to K.B.H. for several years. Courtney testified that Sprayberry had not
seen K.B.H. much, had not sent presents or gifts, and had not called recently. She
also said that, after 2009, he had not seen K.B.H. at Christmas.          Sprayberry
admitted that the last Christmas he saw K.B.H. was in 2009.
          Sprayberry testified that he had opened a savings account for K.B.H. in
2009, although Courtney said it was established in 2006. Sprayberry acknowledged
that the Harvels had provided almost all of K.B.H.’s support for the past several
years.     Sprayberry acknowledged that K.B.H. had formed a close bond with
Donnie, who was involved with her on a daily basis, and that she thought of him as
her father. Courtney called Donnie an ideal father. Courtney said the disclosure
would cause K.B.H. to be confused. Sprayberry conceded that K.B.H. was well-
adjusted living with the Harvels and agreed with Donnie that the disclosure of her
true parentage would likely cause her trauma. Sprayberry confirmed that he only
wanted what was best for K.B.H.
         The trial court held that Sprayberry was equitably estopped from asserting
his parentage claims and that to adjudicate him as her father would not be in her
best interest. The trial court issued findings of fact and conclusions of law, and
Sprayberry challenges the following:
         Findings of Fact:
               12. Tadd Sprayberry knew that there was a distinct possibility
         that he might be the father of the child, [K.B.H.], from the time that
         Courtney Harvel became pregnant.

                20. Tadd Sprayberry has never financially supported the
         child, [ K.B.H.], and has never acted as the father of the child.




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      Conclusions of Law:
            3. Tadd Sprayberry is equitably estopped from claiming the
      parentage of the child, [K.B.H.], from seeking an adjudication that
      he is the father of the child and from denying the parentage of
      Donnie Harvel of the child, [K.B.H.].

            4. It is in the best interest of the child, [K.B.H.], to deny
      adjudication of Tadd Sprayberry as the father of the child, [K.B.H.].

            5. Tadd Sprayberry is therefore not adjudicated as the father of
      the child, [K.B.H.], born on February 23, 2006 to Courtney Shawn
      Harvel.

      Sprayberry challenges the trial court’s judgment and the above-quoted
findings of fact and conclusions of law and asserts that the trial court’s denial of
his petition was based on factually and legally insufficient evidence. He also
asserts that neither the trial court’s equitable estoppel finding nor its best interest
finding was supported by the evidence.
      Equitable estoppel is a doctrine in equity and is based on fair dealing, good
faith, and justice. In re Shockley, 123 S.W.3d 642, 653 (Tex. App.—El Paso 2003,
no pet.). In cases like this one, estoppel is based on the public policy that children
should be secure in knowing who their parents are. Hausman v. Hausman, 199
S.W.3d 38, 42 (Tex. App.—San Antonio 2006, no pet.) (citing In re Shockley, 123
S.W.3d at 651–53).      A trial court’s decision in a paternity action or action
modifying the parent-child relationship in equity is reviewed for abuse of
discretion. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston [1st
Dist.] 2008, no pet.) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990)). We also review the trial court’s decision as to the best interest of the child
under an abuse of discretion standard. Id. Legal and factual insufficiency issues
are not independent grounds of error under an abuse of discretion standard but,

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rather, are relevant factors in assessing whether the trial court abused its discretion.
Id. at 542 (citing In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.—Houston [14th
Dist.] 2002, no pet.)).
      We apply a hybrid analysis because sufficiency of the evidence and abuse of
discretion standards of review often overlap in family law cases. Id. (citing In re
D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.)).
Within this overarching standard, we engage in a two-pronged inquiry to determine
whether the trial court (1) had sufficient information on which to exercise its
discretion and (2) erred in its application of discretion. Zeifman v. Michels, 212
S.W.3d 582, 588 (Tex. App.—Austin 2006, pet. denied).
      There is no abuse of discretion as long as some evidence of a substantive
and probative character exists to support the trial court’s decision. Stamper, 254
S.W.3d at 542 (citing In re T.J.L., 97 S.W.3d at 266). We defer to the trial court
when it assesses the veracity and credibility of witnesses, 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). For purely legal
issues, a trial court abuses its discretion when it fails to analyze or apply the law
correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
      Sprayberry challenged parts of both the court’s findings of fact and
conclusions of law, which he claims were based on factually and legally
insufficient evidence. He specifically challenges the court’s decision regarding
equitable estoppel and K.B.H.’s best interest. We address the estoppel issue first
and then the best interest issue.
      Sprayberry complains that the trial court did not have factually and legally
sufficient evidence to equitably estop him from seeking parentage of K.B.H. We
disagree. The equitable power of a court is not bound by cast-iron rules but exists
to do fairness; it is flexible and adaptable to particular exigencies so that relief will
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be granted when, in view of all the circumstances, to deny it would permit one
party to suffer a gross wrong at the hands of the other. Hausman, 199 S.W.3d at
42 (citing Johnson v. Cherry, 726 S.W.2d 4, 8 (Tex. 1987), and Warren v.
Osborne, 154 S.W.2d 944, 946 (Tex. Civ. App.—Texarkana 1941, writ ref’d
w.o.m.)).
      The theory is that a person who by speech or conduct induces another to act
in a particular manner should not be permitted to adopt an inconsistent position,
attitude, or course of conduct. In re Shockley, 123 S.W.3d at 653. Each case must
be determined upon its own facts. Id. (citing Barfield v. Howard M. Smith Co. of
Amarillo, 426 S.W.2d 834, 838 (Tex. 1968)). Equitable estoppel may arise if five
factors are satisfied: (1) there was a false representation or a concealment of
material facts; (2) made with knowledge, actual or constructive, of those facts;
(3) to a party without knowledge, or the means of knowledge, of those facts;
(4) with the intention that it be acted upon; and (5) the party to whom it was made
must have relied on the misrepresentation to his prejudice.         Id. (citing In re
Moragas, 972 S.W.2d 86, 89–90 (Tex. App.—Texarkana 1998, no pet.)).
      The application of estoppel in paternity actions is aimed at “achieving
fairness as between the parents by holding them, both mother and father, to their
prior conduct regarding the paternity of the child.” In re Shockley, 123 S.W.3d at
651-52. Courtney claimed that Sprayberry told her that he knew the time, date,
and moment of conception. Sprayberry had suspected Courtney was not on any
birth control regimen when they had their affair, and according to Courtney,
Sprayberry said he knew in his heart that he was K.B.H.’s father.
      Sprayberry conceded that he concealed his suspicions about K.B.H.’s
paternity from Donnie.     Courtney also hid from Donnie the possibility that
Sprayberry was K.B.H.’s father. She and Sprayberry both knew that they could
have conceived K.B.H. during their affair, but did nothing to alert anyone.
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Sprayberry and Courtney surreptitiously continued their affair after K.B.H.’s birth,
and they openly dated when the Harvels later separated. Only when it was clear
that the Harvels were separated and might divorce, did Sprayberry seek testing and
challenge K.B.H.’s paternity.
      Donnie relied on the representation from his wife that he was K.B.H.’s
father and, in reliance, began caring for and raising her. He has spent time and
treasure in rearing K.B.H., and she has bonded with him. If 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. Courts are more inclined to impose
equitable estoppel to protect the status of a child in an already recognized and
operative parent-child relationship. Hausman, 199 S.W.3d at 42 (citing In re
Shockley, 123 S.W.3d at 651–53). Sprayberry acknowledged that K.B.H. had
formed a close bond with Donnie, who was involved with her on a daily basis, and
that K.B.H. thought of Donnie as her father. Courtney called Donnie an ideal
father.   Courtney said the disclosure would cause K.B.H. to be confused.
Sprayberry conceded that K.B.H. was well-adjusted and that he only wanted what
was best for K.B.H. The trial court did not err when it ruled that Sprayberry, under
these facts, was equitably estopped from asserting his paternity to K.B.H.
      Appellant next claims that the trial court did not rule in K.B.H.’s best
interest. Best interest of the child is the paramount concern in the application of
equitable estoppel. Hausman, 199 S.W.3d at 42 (citing In re Shockley, 123 S.W.3d
at 651–53). Section 160.608 of the Texas Family Code provides in relevant part:
            (a) In a proceeding to adjudicate parentage, a court may deny a
      motion for an order for the genetic testing of the mother, the child,
      and the presumed father if the court determines that:



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             (1) the conduct of the mother or the presumed
      father estops that party from denying parentage; and

             (2) it would be inequitable to disprove the father-
      child relationship between the child and the presumed
      father.

       (b) In determining whether to deny a motion for an order for
genetic testing under this section, the court shall consider the best
interest of the child, including the following factors:

             (1) the length of time between the date of the
      proceeding to adjudicate parentage and the date the
      presumed father was placed on notice that he might not
      be the genetic father;

             (2) the length of time during which the presumed
      father has assumed the role of father of the child;

            (3) the facts surrounding the presumed father’s
      discovery of his possible nonpaternity;

            (4) the nature of the relationship between the child
      and the presumed father;

            (5) the age of the child;

            (6) any harm that may result to the child if
      presumed paternity is successfully disproved;

            (7) the nature of the relationship between the child
      and the alleged father;

            (8) the extent to which the passage of time reduces
      the chances of establishing the paternity of another man
      and a child support obligation in favor of the child; and

           (9) other factors that may affect the equities arising
      from the disruption of the father-child relationship


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             between the child and the presumed father or the chance
             of other harm to the child.

TEX. FAM. CODE ANN. § 160.608 (West Supp. 2012). Although Sprayberry had
already conducted DNA testing prior to filing suit, which makes the issue of
conducting testing moot, the factors in Section 160.608 are helpful in reviewing
the trial court’s decision on the best interest of the child. Because the best interest
of the child does not require proof of a specific set of facts, courts also refer to the
non-exhaustive list of factors outlined under Holley in any analysis. Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).                Those factors include the
following:
             (A) the desires of the child;

             (B) the emotional and physical needs of the child now and in
      the future;

             (C) the emotional and physical danger to the child now and in
      the future;

             (D) the parental abilities of the individuals seeking custody;

            (E) the programs available to assist these individuals to promote
      the best interest of the child;

            (F) the plans for the child by these individuals or by the agency
      seeking custody;

             (G) the stability of the home or proposed placement;

             (H) the acts or omissions of the parent which may indicate that
      the existing parent-child relationship is not a proper one; and

             (I) any excuse for the acts or omissions of the parent.




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Holley, 544 S.W.2d at 372 (internal quotations omitted). In resolving issues that
surround K.B.H.’s needs, well-being, and placement and the acts of her parents,
the trial court found that K.B.H. had bonded with Donnie and that both of them
had developed a close, strong, and loving parent-child relationship. Donnie had
provided K.B.H.’s daily care and support during her entire young life. He was
always there changing her diapers, feeding her, bathing her, taking her to and from
day care, playing with her, spending time with her, and raising her as his child. In
turn, she loved and adored him as her father.
      In contrast, Sprayberry admitted that he had not spent any significant time
with K.B.H. and had not provided any care or support for her. Sprayberry did not
know what K.B.H.’s extracurricular activities were. K.B.H. had never spent the
night with Sprayberry, and he had never seen K.B.H. except in Courtney’s
presence. Sprayberry acknowledged that the disclosure of his parentage to K.B.H.
would be traumatic to her. Sprayberry further conceded that he carried on a secret
affair with Courtney and that, although he thought he might be the father, he never
did anything to challenge paternity until the Harvels separated. Finally, Sprayberry
admitted that K.B.H. was well-adjusted with Donnie as her father and parent.
       Although Sprayberry is K.B.H.’s biological father, the mere biological link
with K.B.H. does not merit equivalent constitutional protection to that of a father
who has “a developed parent-child relationship.” See In re R.J., 381 S.W.3d 619,
625 (Tex. App.—San Antonio 2012, no pet.) (citing Lehr v. Robertson, 463 U.S.
248, 261 (1983)); see also In re J.W.T., 872 S.W.2d 189, 198 (Tex. 1994). The
trial court in this case heard the conflicting testimony and resolved disputed factual
issues in Donnie’s favor. The trial court did not err when it held that it was in
K.B.H.’s best interest to estop Sprayberry from seeking a parentage determination.
We need not consider the other arguments advanced by Sprayberry, and his sole
issue is overruled.
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      We affirm the judgment of the trial court.




                                             JIM R. WRIGHT
                                             CHIEF JUSTICE


May 23, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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