Reversed and Remand and Memorandum Opinion filed August 22, 2019.




                                           In The

                       Fourteenth Court of Appeals

                                  NO. 14-18-00464-CV

           IN THE INTEREST OF K.C.L. AND M.W.L., CHILDREN

                    On Appeal from County Court at Law No. 2
                             Galveston County, Texas
                        Trial Court Cause No. 16-FD-2240

                             MEMORANDUM OPINION

       In this suit affecting the parent-child relationship (“SAPCR”), the trial court
conducted a bench trial and signed an order appointing Rebekah1 (Mother) and
Nestor (biological father of Barry and non-biological father of Lorenzo) joint
managing conservators of Nestor.           The court also signed an order regarding



       1
          To protect the privacy of the complainants in this case and for ease of reference, we
identify individuals by pseudonyms. REE (mother) is identified as “Rebekah.” CNL (biological
father of MWL and non-biological father of KCL) is identified as “Nestor.” MWL (older child
of mother and CNL) is identified as “Barry.” KCL (mother’s youngest son) is identified as
“Lorenzo.” AR (mother’s boyfriend in Arkansas) is identified as “Jerry.” AL (CNL’s wife) is
identified as “Olga.”
possession of Lorenzo, granting Rebekah sole right of possession and access of
Lorenzo, and ordering that Nestor has no right to possession or access to Lorenzo.

         In two issues on appeal,2 Nestor maintains the trial court abused its
discretion by: (1) ordering that Nestor had no right to possession or access to
Lorenzo because he was not Lorenzo’s biological father, which Nestor claims
“involuntarily terminated appellant’s parent-child relationship without clear and
convincing evidence that appellant had violated Sec. 161.001(B)(1)(A)-(T) and
thus violate (sic) constitutional right to the companionship, care, custody, and
management of [Lorenzo],”3 and (2) ordering DNA testing when Nestor was
Lorenzo’s presumed father and the four-year statute of limitations had passed. We
reverse and remand.

                                        I.      Background

         Nestor married Olga in May 2006. In March 2008, Nestor and Rebekah
began a relationship. At that time, Nestor and his wife Olga were separated.
Nestor and Rebekah began living together, and shortly thereafter, Rebekah became
pregnant with Nestor’s child, Barry. Barry was born in January 2009. Rebekah,
Nestor, and Barry lived together until around June 2009. In June 2009, Rebekah
and Nestor had a fight, causing injuries to Rebekah resulting in treatment at a
hospital.         Child Protective Services was contacted and Barry, who was
approximately seven months old, spent a week in foster care and, thereafter,
temporary custody of Barry was awarded to grandmother (Nestor’s mother).


         2
             Nestor does not challenge the trial court’s order as it relates to his biological child,
Barry.
         3
          Section 161.001 of the Texas Family Code is titled “Involuntary Termination of Parent-
Child Relationship.” Under subsection (b), the statute provides that a court may order
termination of the parent-child relationship if the court finds by clear and convincing evidence
that the parent has committed an infraction listed in subsections (A) – (T).

                                                   2
       In October 2009, Nestor and Olga reconciled, and Nestor moved back in
with Olga. Barry began living with Nestor and Olga.

       In January 2010, Nestor bought Rebekah a one-way ticket to Oregon to visit
her father.       After spending four months in Oregon, Rebekah’s high school
boyfriend, Jerry, bought her a ticket to Arkansas. Rebekah remained with Jerry in
Arkansas for two-and-a-half to three months.                   Rebekah and Jerry had sexual
relations.4

       In late July 2010, Nestor separated from Olga, who was pregnant with
Nestor’s baby. Nestor contacted Rebekah. In late July, Rebekah returned to Texas
and Nestor picked her up at the bus stop. Nestor and Rebekah began living
together and having sexual relations. Rebekah found out in late August 2010 that
she was pregnant.

       Nestor reconciled with Olga. On September 6, 2010, Rebekah moved in
with Nestor and Olga. Olga gave birth to Nestor’s baby mid-September 2010.
Rebekah helped Olga with her baby, cooked, cleaned, ran errands for everyone,
and performed other chores. In the latter part of March 2011, Rebekah gave birth
to Lorenzo while living with Nestor and his wife, Olga.                             Rebekah lived
continuously with Nestor and Olga and with all of the children until July 4, 2016.

       On July 4, 2016, Rebekah moved out, claiming she could no longer take the
physical and verbal abuse from Nestor. Although Rebekah attempted to take
Lorenzo with her, Nestor refused to let her leave with Lorenzo. Barry and Lorenzo
remained with Nestor and Olga.




       4
           At trial, Rebekah testified on direct examination that Jerry is the father of Lorenzo.

                                                   3
        On August 1, 2016, Rebekah filed this suit on behalf of Barry against
Nestor, seeking joint managing conservatorship of Barry.5 On September 2, 2016,
Nestor filed an original counter-petition in suit affecting the parent-child
relationship, requesting to be appointed sole managing conservator of Barry.

        On September 7, 2016, a temporary orders hearing was held before an
associate judge, and Rebekah and Nestor agreed that the two boys (Barry and
Lorenzo) would stay with Nestor and Olga and Rebekah would have possession of
the boys every other weekend. The parties also agreed to mediate within sixty
days of the hearing and mandated drug screening. The presiding judge adopted the
report of the associate judge.

        On April 4, 2017, after attending mediation, the parties filed a partial
mediated settlement agreement in the SAPCR suit involving Barry. As part of the
mediation agreement, the parties agreed to recess mediation to allow DNA testing
of Lorenzo and Nestor. The parties agreed to a continuance of the court case until
July 2017, pending the results of the DNA test. The parties’ agreed motion for
continuance of trial was signed on May 30, 2017. Trial was reset for August 28,
2017.

        The DNA results demonstrated that Nestor was not a potential father of
Lorenzo.6

        On August 24, 2017, Nestor filed a “First Amended Counterpetition in Suit
Affecting the Parent-child Relationship and to Adjudicate Paternity,” as to Barry
        5
         Rebekah filed a separate suit affecting parent child relationship on behalf of Lorenzo
against Jerry, styled In the Interest of KCL, a Child, Cause No. 16-FD-2242, in the County Court
No. 2, Galveston, Texas. This case was dismissed for want of prosecution on September 6,
2017.
        6
          Nestor objected to the DNA results, arguing that the test was not conducted according to
the statute and Rebekah would not be able to lay a proper predicate for admission of the DNA
results.

                                                4
and Lorenzo. Nestor sought to be named as sole managing conservator of both
children.

      The trial was continued and reset for several reasons, including the effects of
Hurricane Harvey on parties and their counsel.

      On September 29, 2017, Jerry filed in this case a copy of Jerry’s Alleged
Father’s Affidavit for Voluntary Relinquishment of Parental Rights of [Lorenzo],”
a document originally filed in the SAPCR suit between Rebekah and Jerry.

      On October 9, 2017, Rebekah filed a first amended petition, alleging Nestor
is not the biological, legal, or presumed father of Lorenzo. She asserted that
Nestor was excluded by DNA Test report interpretation as, “probability of
Paternity of 0%.” Rebekah requested the trial court appoint her and Nestor joint
managing conservators of Barry.       Rebekah also requested to be named sole
managing conservator of Lorenzo.

      On November 2, 2017, Nestor filed a “Second Amended Counterpetition in
Suit Affecting the Parent-child Relationship and to Adjudicate Paternity,”
requesting adjudication of paternity of Barry and Lorenzo as well as: appointment
as sole managing conservator or, in the alternative joint managing conservator of
both boys; access pursuant to a standard possession order by way of a stair-stepped
visitation plan tied to Rebekah providing clean drug and alcohol screening results;
and execution of a court ordered bond or security deposit by Rebekah.

      After several continuances, the trial court held a bench trial on November
13, 14, and 15, 2017. Immediately prior to trial commencing, Nestor objected to
the admission of DNA testing conducted prior to trial, claiming it was not
conducted in accordance with statutory guidelines and that Rebekah would not be



                                         5
able to lay the proper predicate for admission of the testing. The trial court
declared the objection to be a legal issue and deferred ruling on the issue.

      Rebekah testified she wanted both boys home with her.                    Rebekah
acknowledged that Nestor was the father of Barry; however, she disavowed that
Nestor was the father of Lorenzo. Nestor reiterated Rebekah’s testimony that
Rebekah lived with Nestor and Olga from September 2010 until July 2016. Nestor
also testified Lorenzo lived with him for over six years, and that Nestor held
Lorenzo out as his own son. Rebekah and Nestor each called witnesses to testify.
On the last day of trial, November 15, 2017, after hearing argument from counsel,
the trial court ordered a second round of DNA testing.

      The parties complied with the trial court’s order, submitting to DNA testing
to determine whether Nestor is the biological father of Lorenzo. The DNA test
results stated Nestor was “excluded as the biological father of [Lorenzo].” “The
probability of paternity is 0%.”

      On January 31, 2018, the court sent counsel a letter advising that the court
had completed trial of the matter and had reviewed the evidence, arguments of
counsel, and the law, and was of the opinion that final orders should be prepared
by Rebekah’s counsel and should include: Nestor is the father of Barry; Nestor is
not the father of Lorenzo; the parties are joint managing conservators as to Barry,
with Nestor having primary custody and control and exclusive right to determine
residence of Barry.

      In an order dated February 5, 2018, the trial court noted that “[o]n January
31, 2018, the Court issued its decision in this matter     . . that [Nestor] is not the
father of [Lorenzo]. It has come to the Court’s attention that the parties are unable
to amicably agree to a transition of possession of the child.” The trial court ordered


                                          6
that Rebekah was entitled to immediate possession of Lorenzo and that Nestor has
no right to possession or access to Lorenzo.

       On February 26, 2018, Nestor requested findings of fact and conclusion of
law relating to Lorenzo, on the underlying paternity issues, possession and access,
termination of parental rights, and legal sufficiency, but none were filed. The
record does not reflect that Nestor filed a notice of past-due findings of fact.7

       On March 6, 2018, the trial court conducted an entry hearing and set the
final entry order for March 12, 2018. On March 12, 2018, the trial court signed a
final order in suit affecting the parent-child relationship. The trial court ordered
that Nestor is adjudicated the father of Barry; Nestor is not the father of Lorenzo;
Nestor has no right to possession or access to Lorenzo; and Rebekah has
immediate possession of Lorenzo. The trial court further ordered Rebekah and
Nestor joint managing conservators of Barry with a standard possession order, and
further ordered Nestor to have the exclusive right to designate the primary
residence of Barry

       On March 23, 2018, Nestor filed a motion for new trial, which the trial court
denied.

       On April 12, 2018, Nestor also filed a motion for partial modification,
correction or reformation of judgment, which was denied. In the motion, Nestor
maintained that he and Jerry filed an acknowledgment of paternity and a denial of
paternity, respectively, and filed these papers with the “proper government

       7
          The rules provide that if the trial court fails to timely issue findings of fact and
conclusions of law as requested, “the party making the request shall, within thirty days after
filing the original request, file with the clerk and serve on all other parties in accordance with
Rule 21a a ‘Notice of Past Due Findings of Fact and Conclusions of Law.’ ” Tex. R. Civ. P.
297; see Las Vegas Pecan & Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 255–56 (Tex. 1984)
(holding that an appellate complaint regarding the trial court’s failure to file findings of fact and
conclusions of law was waived where the “past due” notice was filed four days late).

                                                 7
agency.”8 Nestor further complained that Rebekah did not seek an adjudication of
paternity; instead, she sought sole managing conservatorship of Lorenzo. Nestor
maintains that this “act effectively adjudicated [Nestor] the father of
[Lorenzo].. . .” Nestor also argued that the trial court abused its discretion by
failing to issue an order that conforms to the pleading, in that Nestor’s parental
rights were terminated when no termination was sought.

       Nestor timely filed this notice of appeal.9

                                         II.    Analysis

A.     Standard of review

       Most orders arising from a suit affecting the parent-child relationship will
not be disturbed on appeal unless the complaining party can demonstrate a clear
abuse of discretion. In re C.A.M.M., 243 S.W.3d 211, 214 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied) (citing Worford v. Stamper, 801 S.W.2d 108, 109
(Tex.1990)); see also In the Interest of K.S., 492 S.W.3d 419, 426 (Tex. App.–
Houston [14th Dist.] 2016, pet. denied) (trial courts have wide discretion with
respect to custody, control, possession, support, and visitation matters). Such an
abuse of discretion occurs when a trial court acts arbitrarily, unreasonably, or
without regard to guiding rules or principles. In re C.A.M.M., 243 S.W.3d at 214.
The fact that a trial court may decide a matter within its discretionary authority in a
different manner from an appellate court in a similar circumstance does not
demonstrate an abuse of discretion. Id. at 214–15. A trial court does not abuse its

       8
         Pursuant to Tex. Fam. Code § 160.305, proper filing must be made with the Bureau of
Vital Statistics. Proof of a whether a valid acknowledgment of paternity was filed with the
Bureau of Vital Statistics is not in the record before this court.
       9
         Rebekah has not filed an appellee’s brief in defense of the trial court’s order, and we
must, therefore, “accept as true the facts stated” in Nestor’s brief to the extent it is supported by
record references. See Tex. R. App. P. 38.1(g).

                                                 8
discretion as long as some evidence of a substantive and probative character exists
to support the trial court’s decision. Id. at 215.

B.    Presumption of paternity

      In his second issue, Nestor contends the trial court abused its discretion
ordering DNA testing because Rebekah is barred by limitations from challenging
paternity of Lorenzo, arguing Lorenzo is a child with a presumed father.

      1.     Legal authorities

      A presumption of paternity exists if “during the first two years of the child’s
life,” the man “continuously reside[s] in the household in which the child reside[s]
and he represent[s] to others that the child [is] his own.” Tex. Fam. Code
§ 160.204(a)(5). This presumption legally establishes the father-child relationship
between the man and the child. Tex. Fam. Code § 160.201(b)(1). A “presumed
father” is, by operation of law under section 160.204, “recognized as the father of
the child until that status is rebutted or confirmed in a judicial proceeding.” Tex.
Fam. Code § 160.102(13); In re S.C.L., 175 S.W.3d 555, 557 (Tex. App.—Dallas
2005, no pet.). This presumption may be rebutted only by (1) a proceeding to
adjudicate parentage under Subchapter G, or (2) the filing of a valid denial of
paternity by the presumed father in conjunction with the filing by another person of
a valid acknowledgment of paternity. Tex. Fam. Code § 160.204(b); In re S.C.L.,
175 S.W.3d at 557. When a child has a presumed father, the general rule is that a
proceeding to adjudicate parentage must be commenced “not later than the fourth
anniversary of the date of the birth of the child.” Tex. Fam. Code § 160.607(a).
However, a proceeding seeking to disprove the father-child relationship between a
child and a child’s presumed father may be maintained at any time if the trial court
determines that:


                                           9
      (1) the presumed father and the mother of the child did not live
      together or engage in sexual intercourse with each other during the
      probable time of conception; or
      (2) the presumed father was precluded from commencing a
      proceeding to adjudicate the parentage of the child before the
      expiration of the time prescribed by Subsection (a) because of the
      mistaken belief that he was the child’s biological father based on
      misrepresentation that led him to that conclusion.
Tex. Fam. Code § 160.607(b).

      When a party to a proceeding to determine parentage makes a request, the
trial court shall order genetic testing of the child and other designated individuals,
“[e]xcept as otherwise provided by this subchapter and Subchapter G.” Tex. Fam.
Code § 160.502. Consequently, a party must be entitled to maintain a proceeding
to adjudicate parentage as set out in Subchapter G before a trial court can order
genetic testing to determine parentage.       See Tex. Fam. Code §§ 160.502(a),
160.607. “A trial court cannot grant an order for genetic testing when requested by
an individual who has not made a prima facie showing that he is entitled to bring a
proceeding to adjudicate parentage or disprove the father-child relationship.” In re
Rodriguez, 248 S.W.3d 444, 451 (Tex. App.—Dallas 2008, no pet.) (citing Tex.
Fam. Code §§ 160.502(a), 160.607; Amanda v. Montgomery, 877 S.W.2d 482,
486-87 (Tex. App.—Houston [1st Dist.] 1994 orig. proceeding) (granting
mandamus relief from an order for genetic testing request by a presumed father
who had failed to make a prima facie showing that his bill of review challenging
paternity was not barred as a matter of law)). Since the limitation on proceedings
to adjudicate parentage for a child with a presumed father is contained in
Subchapter G “Proceeding to Adjudicate Parentage,” a court cannot order genetic
testing if the proceeding to adjudicate parentage is barred as a matter of law by the
four-year limitations period and the party requesting the testing produces no


                                         10
evidence of the exceptions found in section 160.607(b).               Tex. Fam. Code
§§ 160.502(a), 160.601—637 (“Subchapter G”).

         The party seeking to avoid limitations bears the burden of proving a
provision that would toll the statute of limitations. See In re Rodriguez, 248
S.W.3d at 450 (citing In re S.C.L., 175 S.W.3d at 558 n. 1); see also Woods v.
William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988) (party seeking to avoid
a statute of limitations bears the burden of proving a tolling provision once the
initial bar is established as a matter of law).

         “ ‘A trial court abuses its discretion when a child’s paternity has been legally
established, and it orders genetic testing before a parentage determination has been
set aside.’ ” See In re Rodriguez, 248 S.W.3d at 451 (citing In re Attorney General,
195 S.W.3d 264, 269 (Tex. App.—San Antonio 2006, orig. proceeding)
(concluding trial judge abused his discretion in ordering genetic testing “in the face
of a legally established parent-child relationship” when father did not introduce
evidence to overcome his legal status as father) (citing Amanda, 877 S.W.2dat
487)).

         2.    Order for genetic testing

         It is undisputed that during the first two years of Lorenzo’s life Nestor
continuously resided in the household in which Lorenzo resided and Nestor
represented to others that Lorenzo was his child. Thus, Nestor is the presumed
father of Lorenzo. See Tex. Fam. Code § 160.204(a)(5). Any proceeding to
adjudicate parentage in this case is subject to the four-year time limitation set forth
in section 160.607 of the Texas Family Code. Lorenzo was over four years old
when this suit commenced. On this record, Rebekah is barred from bringing a
proceeding to adjudicate the parentage of Lorenzo unless she has met her burden to


                                            11
prove an exception to the four-year period of limitations in section 160.607. See
Tex. Fam. Code § 160.607(a), (b).

      To disprove the father-child relationship under section 160.607(b), Rebekah
must prove that she and Nestor did not live together or engage in sexual
intercourse with each other during the probable time of conception. See Tex. Fam.
Code § 160.607(b). Both in the trial court and in this proceeding, Rebekah does
not address her burden under section 160.607(b).

      The establishment of paternity is a matter of legislative policy. See Michael
H. v. Gerald D., 491 U.S. 110, 129–30 (1989); In re S.C.L., 175 S.W.3d at 558.
The Texas Legislature, in passing section 160.607, determined the policy in this
State is to generally limit challenges to legally established paternity to four years
after the birth of the child, other than the specifically identified exception. See
Tex. Fam. Code § 160.607.

      The trial court record reveals Rebekah presented no evidence to support
either exception in section 160.607(b). In fact, the record shows she presented no
evidence at all. Although Nestor argued Rebekah was required to present evidence
to meet her burden and demonstrate she was not barred from proceeding, the trial
judge ordered testing.

      A trial court has no discretion in determining what the law is, nor does it
have discretion in applying the law to the facts. See Walker, 827 S.W.2d at 840.
The legislature has determined that absent certain exceptions, a four-year statute of
limitations does apply in cases such as the one before us.

      It is clear the trial judge abused her discretion by incorrectly placing the
burden on Nestor to show that Lorenzo should not be tested. The clear language
of the applicable section of the Texas Family Code, section 160.607, places the


                                         12
burden on Rebekah to present evidence of an exception to the four-year limitation
in a proceeding to determine parentage. See Tex. Fam. Code § 160.607(b). During
the bench trial, Rebekah testified she did not live with Nestor from January 2010
until late-July 2010. During this time, Rebekah had sexual relations in Arkansas
with Jerry. When Nestor picked up Rebekah at the bus stop in Texas in late July
2010, Rebekah and Nestor had sexual relations. Rebekah found out she was
pregnant at the end of August 2010. Lorenzo was born late March 2011. There is
no evidence in the record as to whether or not Lorenzo was a “full term” baby to
even make an educated guess as to the time of conception. No one asked the trial
judge to take judicial notice of the probable time of conception (if the trial judge
could even do so). The fact that prior testing revealed Nestor is not the biological
father of Lorenzo does not establish that Nestor and Rebekah did not have sex
within the “probable time of conception.” Without any evidence, it is an abuse of
discretion for the trial judge to conclude that the exception to the four-year statute
of limitations applies. See In re J.C., 346 S.W.3d 189, 193 (Tex. App.—Houston
[14th Dist.] 2011, no pet.) (“The trial court does not abuse its discretion so long as
the record contains some evidence of substantive and probative character to
support its decision.”); cf. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226
(Tex. 1991) (“Whether there was no evidence to support the turnover award would,
of course, be a relevant consideration in determining if the trial court abused its
discretionary authority in issuing the order.”).

      Nestor’s second issue is granted.

C.    Remaining issue

      In his first issue, Nestor contends the trial court abused its discretion in
ordering that Nestor had no right to possession or access to Lorenzo because he
was not Lorenzo’s father, which Nestor claims involuntarily terminated Nestor’s

                                          13
parent-child relationship without clear and convincing evidence that Nestor had
violated section 161.001(b)(1)(A)-(T) of the Texas Family Code.

       Having found the trial court erred, resolution of this issue does not afford
Nestor greater relief. Therefore, we do not address this issue.

                                 III.   Conclusion

      The judgment of the trial court is reversed. This case is remanded for
proceedings consistent with this opinion.




                                        /s/    Margaret “Meg” Poissant
                                               Justice


Panel consists of Justices Christopher, Hassan, and Poissant.




                                          14
