Court of Appeals of Texas, Ninth District, Beaumont
Submitted on November 4, 2019
Appeal from the 279th District Court Jefferson County, Texas
Trial Cause No. F-222, 832
McKeithen, C.J., Kreger and Horton, JJ.
CHARLES KREGER JUSTICE.
suit affecting the parent-child relationship
("SAPCR"), B.V. appeals from an Order Adjudicating
Parentage. The Order named T.H. as the father of
E.Y.H. and sole managing conservator, and it named B.V.
possessory conservator and granted her supervised visitation.
B.V. raises two issues on appeal asserting: (1) the trial
court erred in denying her request for a continuance after
her trial counsel was allowed to withdraw, which required her
to immediately proceed pro se at the jury trial; and
(2) T.H. lacked standing as a parent of a child under Chapter
160 of the Texas Family Code for the reason that he was
solely a sperm donor. We affirm the trial court's
and T.H. began a dating relationship, and after approximately
a year of dating, they decided they would like to have
children together. Unable to conceive naturally, the parties
decided to try in vitro fertilization (IVF). They agreed to
use T.H.'s sperm and a donor egg to optimize their
chances of success. Finding the cost of IVF in the United
States prohibitive, they travelled to a clinic in Matamoros,
still a couple, B.V. and T.H. underwent two unsuccessful IVF
treatments. Shortly after they ended their relationship, B.V.
contacted T.H. and asked for a ride to the bus stop because
she needed to travel to Mexico. She informed T.H. that she
was pregnant and traveling to the IVF clinic. B.V. ultimately
miscarried, and T.H. told her not to use his sperm again.
B.V. responded by advising him that none of his sperm was
did not contact T.H. again until July 2013, when she called
and asked for a loan. T.H. sent B.V. the money she requested
to her cousin's home in Brownsville, Texas, where B.V.
lived at the time. Thereafter, B.V.'s cousin called T.H.
and told him B.V. was pregnant with his child. T.H.
immediately traveled to see B.V. and began providing
financial assistance so that B.V. could leave the home she
lived in, which T.H. indicated "wasn't
sanitary." B.V. was in the last trimester of her
pregnancy, and T.H. traveled to see her every weekend. He
also went to at least one medical appointment with her.
delivered E.Y.H. via c-section, and T.H. attended the birth.
T.H. testified that he was excited and did not really doubt
E.Y.H.'s paternity but did not immediately sign papers at
the hospital acknowledging his paternity or allow hospital
staff to list him on the birth certificate. He explained that
given his difficulty trusting B.V. under the circumstances,
he felt it prudent to obtain a DNA test. He did so, and it
confirmed his paternity.
the hospital released B.V. to travel, they returned to
T.H.'s apartment in Houston and lived together briefly.
T.H. testified they attempted to make it work for E.Y.H. but
were unsuccessful, and B.V. moved to Beaumont with E.Y.H. in
early 2014. T.H. continued supporting B.V. financially during
this period and visited E.Y.H. often.
testimony, T.H. described escalating disagreements with B.V.,
and one in particular in which she struck him repeatedly in
front of E.Y.H. He testified that after this incident, he
determined he needed to formally file to establish his
paternity and a custody arrangement. Initially, B.V. and T.H.
agreed she would have E.Y.H. during the week, and he would
have the child on the first, third, and fourth weekends of
testified that unbeknownst to him at the time, B.V. took the
child to the hospital repeatedly to be examined by a sexual
assault nurse examiner (SANE). She also called Child
Protective Services (CPS) and made allegations of abuse
against him. T.H. testified that each of these CPS
investigations "ruled out" sexual and physical
abuse. After two SANE exams did not reveal any trauma, B.V.
returned to the hospital again to have the child undergo a
third SANE exam, which the hospital refused to do. The next
Thursday when T.H. traveled to Beaumont to pick up the child
for his scheduled possession period, B.V. refused to
surrender E.Y.H. T.H. called the police, and he was advised
to obtain a writ of attachment to force B.V. to surrender the
child. While T.H. was at the courthouse, B.V. disappeared and
did not appear again until the following Monday, when she was
served with process at the bus stop near her home. When a
constable executed the writ of attachment, B.V. ran back to
her home. T.H. testified that police arrived, and he
ultimately retrieved E.Y.H.
testified that a third CPS investigation "ruled
out" any abuse. Following the incident with the writ of
attachment and forced surrender of E.Y.H., T.H. sought and
obtained temporary orders from the court, and E.Y.H. began
living with him primarily. B.V. only had weekend access to
court required both parents to undergo psychological
evaluations. During trial, T.H. was allowed to read a portion
of B.V.'s psychological evaluation for the jury, in which
the psychologist stated B.V. "seems confused in
separating reality from fantasy and is at risk to display
inappropriate behaviors which appear to ...