IN THE INTEREST OF K.C.L. AND M.W.L., CHILDREN
Appeal from County Court at Law No. 2 Galveston County, Texas
Trial Court Cause No. 16-FD-2240.
consists of Justices Christopher, Hassan, and Poissant.
Margaret "Meg" Poissant Justice.
suit affecting the parent-child relationship
("SAPCR"), the trial court conducted a bench trial
and signed an order appointing Rebekah (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.
issues on appeal,  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],
" 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.
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).
October 2009, Nestor and Olga reconciled, and Nestor moved
back in with Olga. Barry began living with Nestor and Olga.
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.
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.
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.
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
August 1, 2016, Rebekah filed this suit on behalf of Barry
against Nestor, seeking joint managing conservatorship of
Barry. 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.
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.
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
results demonstrated that Nestor was not a potential father
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.
trial was continued and reset for several reasons, including
the effects of Hurricane Harvey on parties and their counsel.
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
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 ...