Opinion issued June 26, 2014




                                         In The
                                 Court of Appeals
                                        For The
                            First District of Texas
                    ————————————
                       NO. 01-13-00629-CV
                     ———————————
      IN THE INTEREST OF J.K.B. AND J.D.B., MINOR CHILDREN



                     On Appeal from the 246th District Court
                              Harris County, Texas
                        Trial Court Case No. 2011-77322



                                     OPINION

      Roy 1 filed suit to terminate the parent-child relationship between him and

J.K.B. and J.D.B., pursuant to Texas Family Code section 161.005. See TEX. FAM.

CODE ANN. § 161.005 (Vernon 2014). The statute permits a man to terminate the

parent-child relationship with a child if he satisfies certain statutory criteria


1
      We refer to the parties involved by either first names only or initials to protect the
      identities of the minor children. See TEX. FAM. CODE ANN. § 109.002(d) (Vernon
      2014); TEX. R. APP. P. 9.8.
entitling him to court-ordered genetic testing and the result of the testing excludes

him from being the child’s genetic father. See id. The trial court determined that

Roy did not meet certain statutory criteria entitling him to genetic testing under

section 161.005. The trial court signed an order denying Roy’s request for genetic

testing and his request for termination of the parent-child relationship between him

and J.K.B. and J.D.B.

      We reverse and remand.

                                   Background

A.    Statutory History: Family Code Section 161.005

      In 1973, the Texas Legislature enacted Family Code section 15.01, which

allowed a parent to seek voluntary termination of his or her parental rights to a

child. 2 The provision read, “[A] parent may file a petition requesting termination

of the parent-child relationship with his child. The petition may be granted if the

court finds that termination is in the best interest of the child.” 3 In 1995, the




2
      Act of May 24, 1973, 63rd Leg., R.S., ch. 543, § 1, sec. 15.01, 1973 Tex. Gen.
      Laws 1411, 1426, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2,
      1995 Tex. Gen. Laws 113, 282 (current version at TEX. FAM. CODE ANN.
      § 161.005(a) (Vernon 2014)).
3
      Id.



                                          2
Legislature repealed section 15.01 and re-codified it as Family Code section

161.005. 4

      The statute was “rarely used,” but when employed, it was most commonly

used “when [a] birth mother want[ed] to place her baby for adoption.” In re T.S.S.,

61 S.W.3d 481, 483 & 483 n.1 (Tex. App.—San Antonio 2001, pet. denied) (citing

Robinson C. Ramsey, Termination of Parental Rights, 4 Texas Family Law

Service, § 33.8 (6th ed. 1997)). There were, however, reported cases in which a

father asserted, pursuant to section 161.005, that termination of his parental rights

was in the child’s best interest.

      In one such case, T.S.S., a father, responding to a threatened increase in child

support, sought to terminate the parent-child relationship under section 161.005,

asserting that termination was in the child’s best interest. See T.S.S., 61 S.W.3d at

483. The sole basis for the father’s assertion was his claim that he was not the

biological father. See id. at 488. The T.S.S. court determined that paternity had

been adjudicated in an earlier divorce proceeding, as indicated by the language in

the divorce decree. See id. at 486. The court held that the father was barred by

collateral estoppel from re-litigating the paternity issue and affirmed the trial

court’s denial of the termination request. Id. at 486, 488.



4
      Act of April 6, 1995, 74th Leg., R.S., ch. 20, §§ 1, 2, 1995 Tex. Gen. Laws 113,
      282 (amended 2011, 2013).

                                          3
       In 2011, the Legislature amended Family Code section 161.005,

substantially revising and expanding its provisions.5 Under the amended statute, a

mother or father could still seek to terminate the parent-child relationship based on

best interest of the child. 6 However, the 2011 amendments added provisions to the

statute giving a father a means to terminate the parent-child relationship when

paternity is in question. 7 These added provisions include the following:

          § 161.005. Termination When Parent Is Petitioner

....

          (c) [A] man may file a suit for termination of the parent-child
          relationship between the man and a child if, without obtaining genetic
          testing, the man signed an acknowledgment of paternity of the child in
          accordance with Subchapter D, Chapter 160, or was adjudicated to be
          the father of the child in a previous proceeding under this title in
          which genetic testing did not occur. The petition must be verified and
          must allege facts showing that the petitioner:

             (1) is not the child’s genetic father; and

             (2) signed the acknowledgment of paternity or failed to
             contest parentage in the previous proceeding because of
             the mistaken belief, at the time the acknowledgment was
             signed or on the date the court order in the previous
             proceeding was rendered, that he was the child’s genetic

5
       Act of Apr. 14, 2011, 82nd Leg., R.S., ch. 54, § 2, sec. 161.005, 2011 Tex. Gen.
       Laws 86, 87–88.
6
       Act of Apr. 14, 2011, 82nd Leg., R.S., ch. 54, § 2, sec. 161.005(a), 2011 Tex. Gen.
       Laws 86, 87–88.
7
       Act of Apr. 14, 2011, 82nd Leg., R.S., ch. 54, § 2, sec. 161.005(c)–(o), 2011 Tex.
       Gen. Laws 86, 87–88.

                                            4
           father based on misrepresentations that led him to that
           conclusion.

....

        (e) A petition under Subsection (c) must be filed not later than the
        second anniversary of the date on which the petitioner becomes aware
        of the facts alleged in the petition indicating that the petitioner is not
        the child’s genetic father.

        (e-1) Subsection (e) applies beginning September 1, 2012. Before that
        date, a petition may be filed under Subsection (c) regardless of the
        date on which the petitioner became aware of the facts alleged in the
        petition indicating that the petitioner is not the child’s genetic father.
        This subsection expires September 1, 2013.

        (f) In a proceeding initiated under Subsection (c), the court shall hold
        a pretrial hearing to determine whether the petitioner has established a
        meritorious prima facie case for termination of the parent-child
        relationship. If a meritorious prima facie claim is established, the
        court shall order the petitioner and the child to submit to genetic
        testing under Sub-chapter F, Chapter 160.

        (g) If the results of genetic testing ordered under Subsection (f)
        identify the petitioner as the child’s genetic father under the standards
        prescribed by Section 160.505 and the results of any further testing
        requested by the petitioner and ordered by the court under Subchapter
        F, Chapter 160, do not exclude the petitioner as the child’s genetic
        father, the court shall deny the petitioner’s request for termination of
        the parent-child relationship.

        (h) If the results of genetic testing ordered under Subsection (f)
        exclude the petitioner as the child’s genetic father, the court shall
        render an order terminating the parent-child relationship.

TEX. FAM. CODE ANN. §§ 161.005(c)-(h) (Vernon 2014).




                                        5
      The text of the statute plainly provides a method for an acknowledged or

adjudicated father to challenge paternity through genetic testing. The legislative

history confirms this plain reading.

      In the bill analysis for the 2011 amendment, the Senate Research Committee

recognized that, although section 161.005 provided that a parent may file a suit to

terminate the parent-child relationship, and a court may order termination if it is in

the child’s best interest, the statute contained no provisions “dealing with situations

in which a father has mistakenly signed an acknowledgment of paternity or has

been adjudicated as the father of a child.”         SENATE RESEARCH CTR., BILL

ANALYSIS, TEX. S.B. 785, 82nd Leg., R.S. (2011). The committee observed, “The

father would be required to continue paying child support even if genetic testing

proved that he could not be the father of the child.” Id. The analysis indicates that

the purpose of the 2011 amendment was to provide “a way for a man who has

either signed an acknowledgement of paternity or is adjudicated to be the father of

a child without obtaining genetic testing to have the parent-child relationship

terminated.” Id.

B.    Facts and Procedural History

      Roy married Mona in 1987. During the marriage, Mona gave birth to twins,

J.K.B. and J.D.B on July 12, 1999. At that time, the couple already had three other

children.



                                          6
      Roy and Mona divorced in 2002. On September 25, 2002, the trial court

signed an “Agreed Final Divorce Decree and Order Affecting the Parent-Child

Relationship.” In that judgment, the trial court found that Roy and Mona “are the

parents of” J.K.B. and J.D.B. and of their three siblings. Roy and Mona were

appointed joint managing conservators of the five children, with Mona having the

right of primary possession. Roy was ordered to pay child support for the children,

which he has paid through the years.

      On December 28, 2011, Roy filed a verified petition to terminate the parent-

child relationship between him and the twins pursuant to Family Code section

161.005(c).8 Pleading the statutory elements of his section 161.005 claim, Roy

alleged as follows: (1) he had been adjudicated to be the twins’ father in the 2002

judgment from the divorce proceeding; (2) genetic testing had not occurred in that

proceeding; (3) he had not contested parentage in the divorce proceeding because

of his mistaken belief at that time he was the twins’ father; and (4) his mistaken

belief was based on misrepresentations that had been made to him. Roy asserted

that, after the divorce, he had undergone genetic testing, which excluded him as the

twins’ father. Roy attached the genetic testing report to his petition, which showed


8
      Relevant to this appeal, a petition may be filed under subsection (c) regardless of
      the date on which the petitioner became aware of the facts alleged in the petition,
      provided the petition was filed after May 12, 2011 but before September 1, 2012.
      TEX. FAM. CODE ANN. §§ 161.005 (e–1). Here, Roy filed his petition, within this
      time period, on December 28, 2011.

                                           7
that the testing had been done in September 2003 and had excluded Roy as the

twins’ biological father.

      The trial court conducted pre-trial hearings on Roy’s termination request.

Roy claimed, as he had in his petition, that he had been adjudicated to be the twins’

father in the 2002 divorce proceeding. Asserting that he had made a prima facie

showing under section 161.005, Roy requested the trial court to order genetic

testing and ultimately to order termination of the parent-child relationship.

      The trial court disagreed that Roy had been adjudicated to be the twins’

father in the divorce proceeding. Rather than an adjudicated father, the court stated

that Roy was the twins’ presumed father, as defined in the Family Code. The court

further stated that subsection 161.005(c) did not entitle a presumed father to

petition for termination under section 161.005. The trial court pointed out that,

under the Family Code, a presumed father must seek to challenge paternity within

four years of the birth of the child, which Roy had not done.9




9
      Family Code section 160.607 provides that when a child has a presumed father, a
      proceeding to adjudicate parentage “shall be commenced not later than the fourth
      anniversary of the date of the birth of the child.” TEX. FAM. CODE ANN.
      § 160.607(a) (Vernon 2014). However, there are exceptions to this requirement.
      As amended in 2011, section 160.607 provides,

          (b) A proceeding seeking to disprove the father-child relationship between
          a child and the child’s presumed father may be maintained at any time if the
          court determines that:



                                           8
      Having concluded that he was not an adjudicated father as alleged in his

petition, the trial court denied Roy’s request for genetic testing and his request for

termination of the parent-child relationship. On July 5, 2013, the trial court signed

an order, which provided as follows:

         The Court finds that Petitioner [Roy] is the presumed father, married
         to the mother of the children born during the marriage of the parents
         and, therefore, is not an acknowledged father nor an adjudicated father
         under Texas Family Code §161.005(c). Therefore, request for DNA
         testing is denied and termination is denied.

      At Roy’s request, the trial court filed findings of fact and conclusions of law,

which provided as follows:

                               FINDINGS OF FACT


         1. On or about December 28, 2011, Roy . . . sought to have his
         parentage terminated.

         2. Roy . . . was married to the mother of the children at the time of the
         conception and birth of the children.



             (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 misrepresentations that led him to that conclusion.

      Id. § 160.607(b).




                                           9
         3. Roy . . . was not an acknowledged father under Texas Family Code
         161.005(c).

         4. Roy . . . was not an adjudicated father under Texas Family Code
         161.005(c).

         5. Roy . . . failed to make a prima-facie showing under 161.005(f).

         6. Roy . . . failed to show that the termination would be in the best
         interest of the children.

         7. Any Conclusion of Law that should be a Finding of Fact is adopted
         here as a Finding of Fact.

                                CONCLUSIONS OF LAW

         1. The Court has jurisdiction of all the parties and the subject matter
         of the suit.

         2. Roy . . . was not entitled to the relief requested.

         2A. A presumed father is not an adjudicated father nor is he an
         acknowledged father under the statute.

         3. Any Conclusion of Law that should be a Finding of fact is adopted
         here as a Finding of Fact.

      Roy now appeals the trial court’s judgment, identifying three issues.10

                           Adjudicated to Be the Twins’ Father

      In his first issue, Roy asserts that the trial court incorrectly determined that

he was not an adjudicated father for purposes of subsection 161.005(c), as Roy had

alleged in his petition.     The material facts underlying whether Roy is an

adjudicated father for purposes of subsection 161.005(c) are undisputed. The

10
      Mona has not filed an appellee’s brief.

                                           10
resolution of this issue turns on the application of statutory language to those

undisputed facts. We review questions of statutory construction de novo. Molinet

v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). Our fundamental objective in

interpreting a statute is “to determine and give effect to the Legislature’s intent.”

Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012). “The plain

language of a statute is the surest guide to the Legislature’s intent.” Prairie View A

& M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012).

      When statutory text is clear, it is determinative of legislative intent, unless

enforcing the plain meaning of the statute’s words would produce an absurd result.

Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). The

words of the statute cannot be examined in isolation, but must be construed based

on the context in which they are used. TGS–NOPEC Geophysical Co. v. Combs,

340 S.W.3d 432, 441 (Tex. 2011).

      Roy asserts that, for purposes of Family Code subsection 161.005(c), he was

adjudicated to be the twins’ father in the 2002 divorce proceeding. Roy points to

the language in the December 2002 judgment from that proceeding in which the

court expressly found Mona and Roy “are the parents of” J.K.B. and J.D.B.

      Pursuant to subsection 161.005(c), “[A] man may file a suit for termination

of the parent-child relationship between the man and a child if, without obtaining

genetic testing, the man . . . was adjudicated to be the father of the child in a



                                         11
previous proceeding under this title in which genetic testing did not occur.” TEX.

FAM. CODE ANN. § 161.005(c). The phrase “under this title” refers to Family Code

Title 5, entitled, “The Parent-Child Relationship and the Suit Affecting the Parent-

Child Relationship.” Title 5 contains Family Code chapters 101 through 266,

which address generally parent-child relationships and suits affecting the parent-

child relationship. See id. §§ 101.001–266.011 (Vernon 2014).

      Matters of conservatorship, possession, and support are matters adjudicated

as a suit affecting the parent-child relationship under Title 5. See TEX. FAM. CODE

ANN. § 101.032 (Vernon 2014) (defining suit affecting the parent-child

relationship); see also id. §§ 153.001–.709 (Vernon 2014) (governing matters of

conservatorship and possession of minor children); id. §§ 154.002–.309 (Vernon

2014) (governing child support issues). This Court has previously recognized that

a suit for divorce in which the parties are parents of minor children necessarily

includes a suit affecting the parent-child relationship. Neal v. Kuniansky, No. 01–

05–00368–CV, 2006 WL 1493735, at *3 n.2 (Tex. App.—Houston [1st Dist.] June

1, 2006, no pet.) (citing Capellen v. Capellen, 888 S.W.2d 539, 545 (Tex. App.—

El Paso 1994, writ denied)).

      As indicated by the December 2002 judgment, issues affecting the parent-

child relationship, governed by Title 5, were resolved in the 2002 divorce

proceeding. Specifically, the judgment—under the heading, “Orders Affecting the



                                        12
Parent-Child Relationship”—appointed Mona and Roy as the children’s joint

managing conservators, gave Mona primary possession, set out a standard

visitation and possession schedule, and ordered Roy to pay child support for the

five children born during Roy and Mona’s marriage, including J.K.B. and J.D.B. It

was within the context of that proceeding and in conjunction with resolving the

issues affecting the parent-child relationship that the trial court expressly found in

the judgment that Roy was the parent of J.K.B. and J.D.B.

      As Roy points out, courts have held that a man has been adjudicated to be

the father of a child when a court finds in a divorce judgment that the man is the

parent of the child as part of the court’s resolution of issues affecting the parent-

child relationship in the divorce proceeding. See, e.g., Dreyer v. Greene, 871

S.W.2d 697, 698 (Tex. 1993); T.S.S., 61 S.W.3d at 485; In re A.L.J., 929 S.W.2d

467, 470-71 (Tex. App.—Tyler 1996, writ denied); Espree v. Guillory, 753 S.W.2d

722, 724 (Tex. App.—Houston [1st Dist.] 1988, no writ). Given that, in the 2002

judgment, the trial court expressly found Roy to be the parent of the twins,

appointed him the twins’ joint managing conservator, and ordered him to pay child

support, we conclude that Roy was adjudicated to be the father of J.K.B. and

J.D.B. in a proceeding under Title 5 of the Family Code. See TEX. FAM. CODE

ANN. § 161.005(c).




                                         13
      We also agree with Roy that his status as a presumed father at the time of the

divorce proceeding has no bearing on whether he was adjudicated to be the father

of the twins during that proceeding. 11 It is instructive that the Legislature has

recognized that an adjudication of parentage can occur in the context of a divorce

proceeding. Subsection (c) of Family Code section 160.637, entitled, “Binding

Effect of Determination of Parentage,” provides as follows:

         In a proceeding to dissolve a marriage, the court is considered to have
         made an adjudication of the parentage of a child if . . . the final order:
         (1) expressly identifies the child as ‘a child of the marriage’ or ‘issue
         of the marriage’ or uses similar words indicating that the husband is
         the father of the child; or (2) provides for the payment of child support
         for the child by the husband unless paternity is specifically disclaimed
         in the order.

TEX. FAM. CODE ANN. § 160.637(c) (Vernon 2014). The Legislature made no

exception for presumed fathers from this provision; nor did the Legislature

preclude presumed fathers from filing a petition to terminate the parent-child

relationship under Family Code subsection 161.005(c). See id.; see also TEX.

FAM. CODE ANN. § 161.005.


11
      A presumption of paternity exists if a man is married to the mother of the child
      and the child is born during the marriage. TEX. FAM. CODE ANN. § 160.204(a)(1)
      (Vernon 2014). This presumption legally establishes the father-child relationship
      between the man and child. TEX. FAM. CODE ANN. § 160.201(b)(1). By operation
      of law, a “presumed father” is “recognized as the father of the child until that
      status is rebutted or confirmed in a judicial proceeding.” TEX. FAM. CODE ANN.
      § 160.102(13). Roy does not dispute that he was the twins’ presumed father;
      rather, he asserts that he was adjudicated to be their father in the 2002 judgment
      from the divorce proceeding.

                                          14
       We hold that Roy was an adjudicated father for purposes of filing a petition

to terminate the parent-child relationship pursuant to Family Code subsection

161.005(c). We further hold that the trial court erred when it denied Roy’s request

for genetic testing and request for termination based on its determination that he

was not an adjudicated father as contemplated by subsection 161.005(c).

       We sustain Roy’s first issue.

                                       Prima Facie Case

       In his second issue, Roy asserts that the trial court erred when it determined

that he had not presented a prima case pursuant to Family Code subsection

161.005(f). Subsection (f) requires a trial court to hold a pre-trial hearing to

determine whether the father has established a “meritorious prima facie case for

termination of the parent-child relationship.” Id. § 161.005(f). As part of that

prima facie case, Roy was required to show that he failed to contest parentage in

the divorce proceeding because of the mistaken belief—on the date the court order

in the previous proceeding was rendered—that he was the twins’ genetic father

based on misrepresentations that led him to that conclusion. See id. § 161.005(c).

       If a trial court finds that the man has established a prima facie case for

termination, the trial court shall order the petitioner and child to submit to genetic

testing.   Id. § 161.005(f).   Because a determination of whether a party has

presented prima facie proof of a meritorious claim is a question of law, we review



                                           15
the trial court’s decision of this issue de novo. In re C.E., 391 S.W.3d 200, 203

(Tex. App.—Houston [1st Dist.] 2012, no pet.).

      Prima facie evidence is “merely that which suffices for the proof of a

particular fact until contradicted and overcome by other evidence.” Id. (citing

Dodson v. Watson, 220 S.W. 771, 772 (Tex. 1920)). The prima facie standard

requires only the minimum quantum of evidence necessary to support a rational

inference that the alleged fact is true. Id. (citing In re E.I. DuPont de Nemours &

Co., 136 S.W.3d 218, 223 (Tex. 2004)). To make a prima facie case for genetic

testing, Roy had to present evidence sufficient to support an inference that a

misrepresentation caused him to believe that he was the twins’ biological father.

See id.; see also TEX. FAM. CODE ANN. § 161.005(c), (f).

      Roy’s petition tracked the statutory language, alleging that he did not contest

paternity in the divorce proceeding because of his mistaken belief at that time that

he was the twins’ genetic father “based on misrepresentations that led him to that

conclusion.” His petition was supported by his sworn statement that the facts

alleged in the petition “are true and correct.” Mona did not answer the petition.

To the contrary, at the pre-trial hearing, she affirmatively stated that she did not

contest the termination request.

      In addition, Roy offered the lab reports from the genetic testing completed in

September 2003, nearly one year after rendition of the judgment in the divorce



                                        16
proceeding adjudicating Roy as the twins’ father. The reports reflect that Roy is

excluded from being the twins’ genetic father. Roy stated at the pre-trial hearing

that he paid for the testing, which was after the divorce proceeding. Mona also

stated at the hearing that they had not learned until “later on” that Roy was not the

twins’ biological father.

         We conclude that Roy’s uncontested verified petition alleging that a

misrepresentation caused Roy to believe that he was the twins’ biological father

coupled with circumstantial evidence that a misrepresentation as to paternity was

made constitutes a prima facie case for genetic testing under Family Code section

161.005(c) in this case. See C.E., 391 S.W.3d at 204. We sustain Roy’s second

issue.

                                         Best Interest

         In his third issue, Roy assails the trial court’s determination that Roy failed

to show that the termination would be in the best interest of the children. Roy

asserts that the trial court erred when it considered the twins’ best interest in

determining whether he was entitled to termination of the parent-child relationship

under subsection 161.005(c). We agree.

         As part of the 2011 amendments to section 161.005, the Legislature added

the following italicized language to subsection 161.005(a): “Except as provided by

Subsection (h), the court may order termination if termination is in the best interest



                                           17
of the child.” TEX. FAM. CODE ANN. § 161.005(a) (emphasis added). Subsection

(h) provides: “If the results of genetic testing ordered under Subsection (f) exclude

the petitioner as the child’s genetic father, the court shall render an order

terminating the parent-child relationship.” Id. § 161.005(h). Although a parent

may still seek termination of the parent-child relationship based on the best interest

of the child under subsection 161.005(a), termination sought under subsection (c)

does not include a best-interest determination. If a petitioner makes a prima facie

showing under subsection (f), entitling him to genetic testing, and the genetic

testing excludes him as the father, then he is entitled to termination under

subsection   (h),   irrespective   of   the   child’s   best   interest.    See    id.

§§ 161.005(a),(c),(f),(h). Thus, the trial court’s determination that Roy did not

show that termination was in the twins’ best interest cannot support denial of his

termination request under subsection 161.005(c).

      We sustain Roy’s third issue.

                                      Conclusion

      We reverse the trial court’s judgment and remand for further proceedings.




                                              Laura Carter Higley
                                              Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.


                                         18
