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In re E.Y.H.

Court of Appeals of Texas, Ninth District, Beaumont

December 12, 2019

IN THE INTEREST OF E.Y.H.

          Submitted on November 4, 2019

          On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-222, 832

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER JUSTICE.

         In this suit affecting the parent-child relationship ("SAPCR"), B.V. appeals from an Order Adjudicating Parentage.[1] 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 judgment.

         I. Background

         B.V. 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, Mexico.

         While 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 left.

         B.V. 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.

         B.V. 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.

         Once 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.

         In his 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 the month.

         T.H. 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.

         T.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 the child.

         The 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 ...


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