in the Interest of D. A. A-B., a Child

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-21-00058-CV IN THE INTEREST OF: § Appeal from the D.A.A.-B., § 388th District Court A CHILD § of El Paso County, Texas

§ (TC# 2016DCM0868 )

CONCURRING OPINION

I concur in the reversal of the trial court’s judgment dismissing Cristina’s SAPCR petition,

and the remand of the cause for further proceedings. I write separately, however, because I disagree

with the statutory basis and reasoning of the majority’s decision. Because the parties’ prior divorce

decree adjudicated that no child was born of their marriage, I would conclude that no parental

presumption applies to this proceeding, as Cristina is bound by the effect of the prior adjudication.

Accordingly, Cristina’s standing as a parent is not cognizable as a matter of law. See TEX. FAM.

CODE ANN. § 102.003(a)(1)(providing general standing for an original SAPCR to a parent of a

child). But unlike the majority, I would further consider Cristina’s other basis for standing in

support of her claim. That is, she also alleged she had standing to bring her suit as a non-parent,

asserting she has had actual care, control, and possession of the child for at least six months and

not ending more than ninety days preceding the date of the filing of the claim. See id. § 102.003(a)(9)(providing standing to a non-parent when conditions are met). Viewing the

evidence in the light most favorable to Cristina, as we must, I would conclude that the evidence

presented raised a jurisdictional fact question as to whether standing was conferred on the non-

parent basis due to Cristina having exercised actual care, control, and possession of the child for

the requisite amount of time. See id.

I address each basis in turn.

A. Standing based on a claim of presumed parentage

The majority concludes that Cristina could be “considered the presumed parent of the child

under section 160.201 of the [Family] Code, given her unrebutted testimony establishing that the

child was born during her lawful marriage to Andrea.” The Court reasons that Section 160.201

applies equally to a same sex couple as it would apply to an opposite sex couple; and the language

of the statute must be interpreted as if “gender was not an issue.” Thus, it determines that Cristina

may rely on a “presumption of parentage,” and such presumption supports her standing as a “parent

of the child.” See id. § 102.003(a)(1).

Based on the pleadings, procedural posture, and evidentiary record of this case, I disagree

with the majority’s conclusion on three grounds.

1. Section 160.201 is not self-determinative

First, Section 160.201 is not a provision conferring standing for a SAPCR claim; nor does

it operate autonomously apart from a proceeding to adjudicate parentage. See TEX. FAM. CODE

ANN. § 160.201 (establishment of a parent-child relationship). Rather, it simply provides the

possible bases under which a parent-child relationship is statutorily recognized as a part of the

Uniform Parentage Act (UPA). Id.; see also id. §§ 160.001–.763 (proceedings to adjudicate

parentage under Chapter 160).

2 The UPA as a whole provides the statutory scheme authorizing civil proceedings to

adjudicate the parentage of a child. See id. § 160.601 (proceeding authorized); see also id.

§ 160.103(a)(establishing that Chapter 160 governs every determination of parentage). Such

proceeding permits a court to render an order adjudicating the parentage of a child. See id.

§ 160.601. Standing to pursue a parentage action is conferred by Section 160.602, not Section

160.201. Compare TEX. FAM. CODE ANN. § 160.602(a)(1)-(8)(standing to maintain a parentage

proceeding), with id. § 160.201 (providing for the establishment of a parent-child relationship).

Because Section 160.201 does not itself adjudicate parentage without a parentage proceeding, I

disagree with the majority’s reliance on this provision as a basis conferring standing under Section

102.003(a)(1), even without the Court having to further consider the implication of the gender-

specific language included within this statutory scheme.

2. Parentage adjudication was not pleaded

Second, I would also conclude that none of Cristina’s pleadings assert standing as an

adjudicated parent of the child or to otherwise become one. Between November 2017 and October

2018, Cristina filed three pleadings, an original petition, a first amended petition, and a second

amended petition. All three sought orders for “conservatorship of, possession of, and access to the

child,” and for orders regarding child support. And none seek an order adjudicating a parent-child

relationship between Cristina and the child. See id. § 160.636. Instead, she merely alleges such

status in her original petition and her first amended petition, claiming in both that she is “the mother

of the child the subject of this suit.” However, she does not maintain such assertion of parentage,

as an alternative claim, when filing her second amended petition, which is the most recent pleading.

In that live pleading, Cristina concedes she “is not biologically related to the child the subject of

this suit.” But she further alleges she has standing to bring her suit for conservatorship, access, and

3 possession, as “a person” having had “actual care, control, and possession of the child for at least

six months.” See id. § 102.003(a)(9).

Based on Cristina’s pleadings, testimony, and argument, I would conclude that—regardless

of whether we consider her original pleading or her live pleading—she did not seek “an order

adjudicating her parentage” in filing her suit. See id. § 160.601. Instead, her pleadings show the

relief she sought was for conservatorship of, possession of, and access to the child, which is a form

of relief governed by Chapter 153 of the code. See id. §§ 153.001–.301. Pursuant to that chapter,

Section 153.005 provides for appointment of sole or joint managing conservators. See id.

§ 153.005; see also Interest of N.M.B., No. 04-18-00111-CV, 2018 WL 6516120, at *2 (Tex.

App.—San Antonio Dec. 12, 2018, pet. denied)(mem. op.)(finding appellant could not assert

standing conferred by Section 160.602 as an “intended parent” because the section pertains to

proceedings to adjudicate parentage and she was requesting to be appointed joint managing

conservator of the child governed by Section 102.003). And, as relevant here, standing to assert a

claim for conservatorship is governed by Section 102.003. See id. §§ 102.003, 153.005.

Yet, standing requires more than mere pleading of bare allegations. Instead, Cristina must

establish standing within the parameters of the statutory language. See In re H.G., 267 S.W.3d

120, 124 (Tex. App.—San Antonio 2008, pet. denied). Here, regardless of which pleading is

referenced, Cristina readily acknowledged by her testimony that she did not give birth to the child,

she has never been adjudicated the mother of the child, and she has not adopted the child. See TEX.

FAM. CODE ANN. § 160.201(a)(setting forth the bases for the establishment of the mother-child

relationship). Based on her record testimony, I would conclude that standing was not established

“as a parent,” by a plain reading of the possible bases for a mother-child relationship as listed in

Section 160.201. See id.

4 3. Cristina and Andrea’s prior divorce adjudicated that no child was born of the marriage

Third and finally, I would conclude that the record demonstrates it has already been

adjudicated that no child was born of the marriage of Cristina and Andrea, and such adjudication

precludes reliance on a parental presumption regardless of whether or not gender-neutral language

would otherwise be required. Cristina testified that she and Andrea had previously entered into an

agreed divorce prior to her filing of the underlying SAPCR claim. She further acknowledged that

neither she nor Andrea mentioned D.A.A.-B. as a child born of their marriage. Except in

circumstances not applicable here, the UPA provides that a determination of parentage is given

binding effect on all parties to the adjudication where jurisdictional requirements have been met.

See id. § 160.637(a)(2). Because the parties’ divorce decree is lawfully recognized, it operates

against Cristina’s claim of being a presumed parent of a child born of her marriage, and there is

no further need to address whether a presumption applies equally to a same sex couple.1 See State

v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015)(reiterating that a final judgment represents an official

announcement of the resolution of the issues in the lawsuit); see also TEX. FAM. CODE ANN.

§ 160.637(c)(“In a proceeding to dissolve a marriage, the court is considered to have made an

adjudication of the parentage of a child if the court acts under circumstances that satisfy

jurisdictional requirements . . . and the final order[ ] expressly identifies the child as “a child of

the marriage[.]”). From the record of this case, I would conclude that Cristina is bound by a final

decree adjudicating that no child was born of her marriage to Andrea.2

To reach its conclusion that Cristina established standing as a presumed parent of the child,

1 A signed judgment concludes the controversy between the parties and fixes a certain date from which appellate deadlines can be determined. See Burrell v. Cornelius, 570 S.W.2d 382, 383 (Tex. 1978)(“The intended purpose for Rule 306a, TEX. R. CIV. P., is to fix a date certain from which appellate steps can be taken.”).

2 The record includes a passing mention that Cristina filed a bill of review challenging the parties’ agreed divorce decree. Yet, no mention is included on how the trial court ruled on the bill, if at all. Cristina does not argue that the bill of review has been granted.

5 the majority followed the analysis of Treto v. Treto, 622 S.W.3d 397, 400 (Tex. App.—Corpus

Christi–Edinburg 2020, no pet.), which in turn cited to Obergefell v. Hodges, 576 U.S. 644 (2015)

and Pavan v. Smith, 137 S. Ct. 2075, 2078–79 (2017)(per curium), cases wherein the United States

Supreme Court addressed the rights of spouses in same-sex marriages. Obergefell declared that

state laws must treat same-sex couples in a civil marriage “on the same terms and conditions as

opposite-sex couples.” Obergefell, 576 U.S. at 675–76. Following that decision, Pavan next

explained the impact of that recognition when a state law is applied to a same-sex, married couple

seeking a birth certificate for a child born during their marriage. Pavan, 137 S. Ct. at 2078–79.

When an opposite sex couple conceived a child by way of anonymous sperm donation, the state

law required the placement of the birth mother’s husband on the child’s birth certificate, even

though the husband was definitely not the biological father. Id. Pavan concluded that, when legal

recognition of paternity is extended to married parents, it must similarly be extended to same sex

couples. Id. Based on Obergefell and Pavan, our sister court of appeal concluded in Treto that the

parentage statute of this state must be interpreted to apply equally to spouses in same-sex marriages

as it would apply to spouses in opposite-sex marriages. Treto, 622 S.W.3d at 402–03 (“[U]nder

Pavan, we are to give effect to the ancillary benefits of a same–sex marriage, including the

determination of maternity for the non–gestational spouse of a child born to the marriage.” (citing

Pavan, 137 S. Ct. at 2078)).

The majority adopts the same reasoning of Treto to this case. As the majority observes,

Treto found that applying the marital presumption to spouses in same-sex marriages not only

satisfies Pavan’s requirement of placing such spouses on equal footing with spouses in opposite-

sex marriages, but it also satisfies the policies of this state in promoting family stability and in

6 protecting the interests of children through the enforcement of child support obligations.3 Id. at

401 (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)(discussing the history of the marital

presumption)); Williams v. Patton, 821 S.W.2d 141, 145 (Tex. 1991)(recognizing that it is the

“strong, long-standing policy of this state to protect the interests of its children,” which includes

the enforcement of child support obligations). Persuaded by Treto, the majority concludes that the

presumption of parentage applying to same-sex spouses properly applies to this case. Based on the

record of this case, however, I would conclude that Treto, Obergefell, and Pavan are all

distinguishable.

The parties in Treto presented as a same sex married couple who had joined a SAPCR with

their divorce. Treto, 622 S.W.3d at 398–400. Because of that joinder of proceedings, Treto

expressly stated “there is no dispute that both Jennifer and Sandra had standing in the underlying

divorce proceedings.” Id. at 400 n.1. Thus, standing was not at issue in Treto. Id. Here, in contrast,

there is no divorce proceeding to support Cristina’s standing to bring a SAPCR claim. See In re

H.S., 550 S.W.3d 151, 155 (Tex. 2018)(“[S]tanding to bring a SAPCR is governed by statute[.]”).

As the party seeking relief, Cristina shoulders the burden to “allege and establish standing within

the parameters of the language used in the statute.” See In re H.G., 267 S.W.3d at 124. On this

record, I would conclude that the prior divorce decree foreclosed any claim of standing based on

Cristina being recognized as a parent.

B. Standing based on care, custody, and control

1. Applicable law

As stated earlier, Section 102.003(a)(9) allows an original SAPCR to be filed at any time

3 The court in Treto also noted that other state courts which have adopted the Uniform Parentage Act have concluded that the marital presumption applies to non-gestational mothers in same-sex marriages. See Treto, 622 S.W.3d at 401 (collecting cases).

7 by “a person, other than a foster parent, who has had actual care, control, and possession of the

child for at least six months ending not more than 90 days preceding the date of the filing of the

petition.” TEX. FAM. CODE ANN. § 102.003(a)(9). To compute the time necessary to establish

standing under Subsection 102.003(a)(9), “the court may not require that the time be continuous

and uninterrupted but shall consider the child’s principal residence during the relevant time

preceding the date of commencement of the suit.” Id. § 102.003(b). A non-parent can make a

showing of “actual care, control, and possession of the child” by showing she “served in a parent-

like role by (1) sharing a principal residence with the child, (2) providing for the child’s daily

physical and psychological needs, and (3) exercising guidance, governance, and direction similar

to that typically exercised on a day-to-day basis by parents with their children.” In re H.S., 550

S.W.3d at 160. It does not require a showing that the child’s parent “wholly ceded or relinquished

their own personal rights and responsibilities,” or that the non-parent had “ultimate legal authority

to control the child.” Id. Ultimately, standing under Section 102.003(a)(9) merely addresses who

may file a suit affecting the parent-child relationship, not what a petitioner must show to obtain

the relief sought. In re C.J.C., 603 S.W.3d 804, 817 (Tex. 2020).

2. Timeliness

Andrea argued Cristina’s assertion under Section 102.003(a)(9) was not timely filed

because her amended petition was filed over a year after her last possession of the child.

Responding, Cristina asserts the 90-day limitation refers to the filing of the original petition, and

not to her amended pleadings.

Section 102.003(a)(9) provides standing to a non-parent who has had actual care, control,

and possession of the child who is the subject of the suit, for a period of at least six months but not

ending more than 90 days before “the date of the filing of the petition.” TEX. FAM. CODE ANN.

8 § 102.003(a)(9)[Emphasis added]. Andrea asserts Cristina failed to assert Section 102.003(a)(9)

standing in her original petition, and she cannot rely on the relation back doctrine to essentially

cure a jurisdictional defect. TEX. R. CIV. P. 65; TEX. CIV. PRAC. & REM. CODE ANN. § 16.068.

However, the plain text of the standing statute merely requires the filing of the petition within the

90-day period, and not that the basis for standing must be asserted within that time frame. And

because Andrea does not dispute that Cristina timely filed her original petition, I would conclude

she met the timeliness element of Section 102.003(a)(9).

3. Jurisdictional evidence

Looking to the jurisdictional evidence presented to the trial court, Cristina testified that

when D.A.A.-B. was born in 2014, she and Andrea both cared for her together. Cristina had

purchased a home for the three of them to live together. Following the separation and eventual

divorce in 2016, Andrea moved out of the marital residence. Cristina and Andrea agreed they

would continue to share possession and parenting duties of the child. Cristina provided text

messages showing conversation of agreed schedules and possession. Cristina testified she had

possession of D.A.A.-B. every Wednesday at 4:00 p.m. to Thursday at 7:00 p.m. Additionally,

every other weekend Cristina would have her from 7:00 p.m. on Friday to Monday at 7:00 a.m.

On weekends without D.A.A.-B., Cristina would have her from 1:00 p.m. on Sunday to Monday

at 7:00 a.m. This schedule continued until September 2017. Cristina also testified she paid Andrea

monthly child support and she covered the child through her health insurance.

Andrea argued Cristina failed to establish standing under this section for three reasons: (1)

Cristina did not establish she shared a principal residence with the child; (2) Cristina only exercised

an expanded standard possession schedule rather than more than fifty percent of the time; and (3)

Cristina never made independent decisions concerning the child. Based on the record, I disagree

9 with these conclusions.

When viewed in the light most favorable to Cristina, I would conclude that Andrea failed

to conclusively establish that Cristina did not meet the requisite elements to establish standing as

a person who had had actual care, control, and possession of the child for at least six months and

ending not more than 90 days preceding the filing of the petition. See TEX. FAM. CODE ANN.

§ 102.003(a)(9). Cristina’s testimony described an on-going schedule that she and Andrea

followed before the underlying disagreement arose. Nothing about Cristina’s testimony suggested

nor otherwise established that she exercised care, control, and possession on a temporary basis and

for a limited period. Cristina provided evidence of text messages demonstrating an agreement

between she and Andrea regarding a possession schedule and her exercise of parenting decisions

regarding the child. Although there was some testimony that there was no bed in the child’s room,

Cristina testified the child would sleep in a bed located in Cristina’s room and she recently bought

a bed for her room. There was also evidence that Cristina’s home was the child’s first home and

remained her home when Cristina exercised her possession of the child. Cristina’s evidence

showed the child occupied her home consistently over a substantial period of time.

Even if there is a conflict on Cristina’s decision-making ability, principal residence, and

time spent with the child, Cristina was only required to present evidence sufficient to create a fact

question on the jurisdictional issue of standing for purposes of this appeal. I would conclude that

Andrea did not conclusively negate Cristina’s standing under Section 102.003(a)(9). See id.

§ 102.003(a)(9). “Because the evidentiary standard applicable to a plea to the jurisdiction

‘generally mirrors that of a summary judgment,’ a trial court may not make credibility

determinations or resolve conflicts in the evidence at this stage, but instead must ‘indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor.’” Interest of T.D.L., 621

10 S.W.3d 346, 354 (Tex. App.—San Antonio 2021, no pet.)(quoting Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)). For this reason, I would conclude that Andrea

failed to conclusively negate standing based on Section 102.003(a)(9), and factual disputes exist

that preclude the dismissal of the suit on this basis.

Based on the foregoing reasons, I concur in the majority’s judgment.

GINA M. PALAFOX, Justice August 30, 2022

Before Rodriguez, C.J., Palafox, and Alley, JJ.