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In re A.E.

Court of Appeals of Texas, Ninth District, Beaumont

April 27, 2017

IN THE INTEREST OF A.E.

          Submitted on September 15, 2016

         On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 15-07-06902-CV

          Before Kreger, Horton, and Johnson, JJ.

          MEMORANDUM OPINION

          LEANNE JOHNSON Justice.

         Appellant C.W. appeals the trial court's dismissal of her suit affecting the parent-child relationship (SAPCR) of the minor child A.E.[1] We affirm.

         Underlying Facts

         C.W. initiated the underlying divorce and custody action on July 8, 2015, when she filed her Original Petition for Divorce and Request for Temporary Orders Hearing, seeking a divorce from M.N., the Respondent in the underlying suit and the Appellee in this appeal. C.W. also included a SAPCR as to A.E., a child born on January 30, 2014. C.W. and M.N., a same-sex couple, were married in Connecticut in 2011, and separated before the birth of the child. M.N. is the biological and birth mother of A.E. who was conceived through assisted reproduction from an unidentified sperm donor.

         M.N. filed an answer to C.W.'s petition for divorce and also a Motion to Dismiss for Lack of Jurisdiction as to the SAPCR. C.W. filed a response and request for evidentiary hearing and oral argument as to the motion to dismiss. M.N. filed a reply, and C.W. filed a sur-reply. The trial court conducted a hearing on the Motion to Dismiss, during which the court received testimony and evidence and heard the arguments of counsel. At the conclusion of the hearing, the court took the Motion to Dismiss under advisement. The parties presented additional briefing to the court after the hearing.

         On October 12, 2015, the trial court entered an Order Granting the Motion to Dismiss. Following the ruling, C.W. filed a Request for Findings of Fact and Conclusions of Law. The trial court filed its Findings of Fact and Conclusions of Law on November 20, 2015. The trial court granted the Motion to Dismiss for Lack of Jurisdiction and ruled that C.W. lacks standing as a parent. The SAPCR was severed from the divorce action and dismissed for want of jurisdiction. C.W. timely filed a notice of appeal.

         Stipulations

         Prior to the hearing on the Motion to Dismiss, C.W. and M.N. stipulated to the following facts:

• A.E. was born on January 30, 2014.
• A.E. was born during the marriage, but after the parties had separated.
• There is no gestational agreement or IVF agreement bearing C.W.'s signature.
• There is no signed acknowledgement of paternity of A.E. on file with the Bureau of Vital Statistics.
• A.E. was conceived with M.N.'s egg and sperm from an unidentified donor, and M.N. carried and gave birth to A.E.

         Uncontroverted Facts

         C.W. and M.N. are both female and were married in Connecticut in 2011. C.W. did not adopt A.E., nor did she initiate proceedings to adopt. C.W. is not a biological or adoptive parent of A.E., nor is C.W. genetically related to A.E. M.N. left the marital home prior to giving birth to A.E. M.N. moved in with M.N. 's mother prior to giving birth to A.E. A.E. has resided with M.N. since birth. M.N. has provided for A.E.'s care and needs since birth, and there are no allegations being made by C.W. that M.N. is unable to care for A.E., nor does C.W. complain about the care that M.N. has provided to A.E. There is nothing in the record before us that indicates M.N. has ever relinquished her parental rights concerning A.E. Additionally, M.N. has not sought any child support, reimbursement, or insurance from C. W. for A.E. in this proceeding.

         Trial Court's Findings of Fact and Conclusions of Law

         The trial court issued Findings of Fact and Conclusions of Law, in which the court made the following findings and conclusions:

• C.W. and M.N. are both female.
• M.N. left the marital home prior to giving birth to A.E.
• M.N. moved in with her mother prior to giving birth to A.E.
• C.W. exclusively lives in the marital home and has lived in the marital home ever since M.N. left prior to the child's birth.
• C.W. has a girlfriend that stays with her periodically in the marital home.
• A.E. has resided with M.N. since birth.
• M.N. has provided for A.E. 's care and needs since birth.
• C.W. had some sporadic contact with M.N. and A.E. following the birth of the child.
• C.W.'s contact with M.N. and A.E. following the child's birth was not significant, regular, or continuous.
• C.W. has not been with the child for any overnight period of possession since the child's birth.
• C.W. has had possession of A.E. only three times since A.E.'s birth and never overnight.
• The last time C.W. saw A.E. was in October of 2014.
• C.W. did not financially support M.N. or A.E. after the birth of the child.
• C.W. has not made efforts or demands to see A.E.
• M.N. provided health insurance for A.E. at her sole cost.
• C.W. and M.N. did not treat A.E. as their child or a child of their marriage.
• C.W. and M.N. did not hold out to others that A.E. was ...

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