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In re K.C.L.

Court of Appeals of Texas, Fourteenth District

August 22, 2019


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

          Panel consists of Justices Christopher, Hassan, and Poissant.


          Margaret "Meg" Poissant Justice.

         In this suit affecting the parent-child relationship ("SAPCR"), the trial court conducted a bench trial and signed an order appointing Rebekah[1] (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 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).

         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.

         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 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 ...

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