In re K.N.H.

1

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

No. 13-20-00347-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 27, 2022

On appeal from the 309th District Court of Harris County, Texas.

Before Justices Hinojosa, Tijerina, and Silva

MEMORANDUM OPINION

CLARISSA SILVA JUSTICE

Appellants Jenrri Hernandez Delgado^[1] and his wife, Dora Alicia Orellana Castro appeal the trial court's final order from a petition to adjudicate parentage and suit affecting the parent-child relationship (SAPCR). By four issues, which we reorganize, appellants argue (1) the trial court abused its discretion by ordering genetic testing for parentage before setting aside Jenrri's acknowledgment of paternity; (2) the trial court lacked authority and jurisdiction to order them, as non-parents, to pay child support; (3) the attorney's fees awarded to appellee Mayra Lisset Delgado were not reasonable and necessary; and (4) the trial court erred by proceeding to trial without notice to appellee Christian Alberto Osorto Gutierrez and allowing him to waive his appearance at trial telephonically. We affirm in part and reverse and remand in part.^[2]

I. Background

The factual and procedural background of this case spans approximately five years. According to appellants' brief, K.N.H.^[3] was born to Mayra on July 13, 2015. At that time, Mayra asked her brother, Jenrri, to serve as K.N.H.'s father because the child "did not have a father." Jenrri agreed and signed an acknowledgment of paternity, K.N.H.'s birth certificate, and a verification of birth facts, all listing him as the father. K.N.H.'s birth certificate, which was admitted as an exhibit at trial, listed Castro as K.N.H.'s mother. After about six months, appellants and Mayra had a falling out, causing Mayra to move out of their shared residence without K.N.H.

The record reflects that on August 21, 2016, Mayra filed a petition to adjudicate parentage, seeking to establish Gutierrez as K.N.H.'s father and herself as K.N.H.'s mother. Although listed as parties to petition, appellants filed a petition in intervention, seeking to terminate the parent-child relationship between Mayra any alleged father, and K.N.H., and to be appointed managing conservators of K.N.H.

A hearing for temporary orders occurred on March 16, 2017. Following the hearing, the trial court appointed appellants as K.N.H.'s temporary managing conservators and appellees as temporary possessory conservators. Appellees were provided with supervised visitation of K.N.H., ordered to pay child support to appellants, and ordered to "provide evidence of satisfactory drug and alcohol tests prior to [the] final trial." The trial court found that "genetic testing results show [Gutierrez] to be the father and [Mayra] to be the mother of [K.N.H.]" Finally, the trial court adjudicated Gutierrez as K.N.H.'s father and Mayra as K.N.H.'s mother and ordered "that the parent-child relationship between the father, [m]other and the child [be] established for all purposes.^[[4]" The temporary orders stated the orders "shall continue in force until the signing of the final order or until further order of this Court."

A two-day bench trial began on January 30, 2020. At the outset of trial, the parties noted that Gutierrez was not present, and they were unsure where he was. However, a woman purporting to be his mother provided the trial court with his phone number. The trial court called the number on the record, and the person who answered identified himself as Gutierrez. The trial court asked Gutierrez if he was okay with the trial proceeding without him, to which he answered affirmatively. Neither party objected to the trial court calling Gutierrez or asking if he was waiving his appearance.

During trial, Mayra's trial counsel testified regarding the attorney's fees sought. She testified that (1) she had been licensed in Texas for more than five years; (2) Mayra was charged $5, 000 in attorney's fees, which she believed to be fair and reasonable; and (3) her firm "devoted numerous hundreds of hours to this case over the last four years; including attending mediation, attending trial . . ., responding and submitting discovery, responding to discovery [sic], [and] numerous pleadings." Additionally, she admitted the contract between Mayra and her firm as an exhibit, which indicated the fee was $5, 000. At the conclusion of trial, the trial court entered the following pertinent orders:

1. Mayra was appointed sole managing conservator of K.N.H.; appellants were appointed possessory conservators;

2. Appellants are to pay $200.00 monthly to Mayra as child support^[5]; and

3. Appellants are to pay attorney's fees in the amount of $5, 000 to Mayra's trial counsel.

The trial court further issued orders for periods of possession of and access to K.N.H. for Gutierrez and appellants. The trial court also ordered the child's last name be changed and ordered her birth certificate be corrected to reflect Mayra and Gutierrez as the mother and father, respectively. A proposed final order was submitted for the trial court's consideration based on the pronounced judgment; however, appellants requested the final order also include the adjudication of parentage of K.N.H.

After the final order was signed, appellants filed a motion for new trial, asserting four errors: (1) Gutierrez never received notice of the trial setting; (2) the acknowledgment of paternity signed by Jenrri was not properly set aside, and thus the trial court could not adjudicate parentage; (3) the trial court lacked personal jurisdiction to order appellants to pay child support; and (4) the attorney's fees awarded to Mayra were not reasonable. Appellants further argued that they "did not agree for [Gutierrez] to appear telephonically." The motion for new trial was overruled.^[6] This appeal followed.

II. Parentage

By their first issue, appellants assert that the trial court abused its discretion by ordering a genetic test for Gutierrez before Jenrri's acknowledgment of paternity had been set aside.

A. Standard of Review and Applicable Law

Parentage suits, including the trial court's decision to order genetic testing, are reviewed for abuse of discretion. In re Rodriguez, 248 S.W.3d 444, 449 (Tex. App.- Dallas 2008, no pet.) (holding the trial court abused its discretion by ordering genetic testing after period to challenge presumption of paternity expired); see also In re E.H., No. 05-19-01205-CV, 2021 WL 3754568, at *3 (Tex. App.-Dallas Aug. 25, 2021, no pet.) (mem. op.). "A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law." In re Rodriguez, 248 S.W.3d at 449 (citing In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)).

The mother-child relationship may be established between a woman and child by the woman giving birth to the child, being adjudicated the mother of a child, or adopting the child. Tex. Fam. Code Ann. § 160.201(a). The father-child relationship may be established by an unrebutted presumption of parentage, see id. § 160.204, an effective acknowledgment of paternity, an adjudication of parentage, or adoption of the child.^[7] Id. § 160.201(b).

"[A] valid acknowledgment of paternity filed with the vital statistics unit is the equivalent of an adjudication of the paternity of a child and confers on the acknowledged father all rights and duties of a parent." Id. § 160.305(a). After the initial sixty-day recission period, "a signatory of an acknowledgment of paternity or denial of paternity may commence a proceeding to challenge the acknowledgment or denial only on the basis of fraud, duress, or material mistake of fact." Id. § 160.308(a). Generally, the proceeding to challenge an acknowledgment of paternity may be filed "at any time before the issuance of an order affecting the child . . . ."^[8] Id. Evidence that the man who is the signatory to the acknowledgment is not rebuttably identified as the father through genetic testing constitutes a material mistake of fact. Id. § 160.308(d). The proceeding to challenge the acknowledgment "shall be conducted in the same manner as a proceeding to adjudicate parentage." Id. § 160.309(d). "At the conclusion of a proceeding to challenge an acknowledgment of paternity or a denial of paternity, the court shall order the vital statistics unit to amend the birth record of the child, if appropriate." Id. § 160.309(e).

A proceeding to adjudicate parentage may be maintained by the mother of the child. Id. § 160.602(a)(2). "The paternity of a child having a[n] . . . acknowledged . . . father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child." Id. § 160.631(b). "[A] man excluded as the father of a child by genetic testing shall be adjudicated as not being the father of the child." Id. § 160.631(d).

B. Analysis

Appellants assert that the trial court abused its discretion by ordering genetic testing to establish parentage before Jenrri's acknowledgment of paternity had been set aside and allege that Mayra did not follow the required procedure to do so. Appellants request this Court remand the case for a new trial with instructions to set aside Jenrri's acknowledgment. In support of their assertion, appellants rely on two mandamus actions that challenged the trial courts' orders for genetic testing for children that had acknowledged fathers. See In re Off. of Att'y Gen. of Tex. 272 S.W.3d 773, 776 (Tex. App.-Dallas 2008, orig. proceeding); In re Att'y Gen. of Tex., 195 S.W.3d 264, 269 (Tex. App.-San Antonio 2006, orig....