in the Interest of D. A. A-B., a Child

Citation: Not availableDocket: 08-21-00058-CV

Court: Court of Appeals of Texas; August 30, 2022; Texas; State Appellate Court

Original Court Document: View Document

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The Court of Appeals for the Eighth District of Texas is reviewing a case concerning the standing of a non-biological former spouse, Cristina, to file a Suit Affecting the Parent-Child Relationship (SAPCR) following her divorce from Andrea. During their marriage, they conceived a child through artificial insemination, with Cristina participating in the process and both spouses considering themselves the child's parents. However, after their separation in November 2015, the trial court ruled that Cristina lacked standing to pursue the SAPCR because she did not meet the Texas Family Code's definition of a "parent."

The appellate court, interpreting the Family Code in a gender-neutral manner as constitutionally required, determined that Cristina has standing based on her assertion of being the child's mother. The court did not address the merits of her claim but emphasized her right to seek legal recognition of her parental status. Therefore, the court reversed the trial court’s dismissal of the SAPCR and remanded the case for further proceedings.

The background details reveal that Cristina and Andrea were married in New Mexico in 2013 and that they jointly raised their child after Andrea gave birth in 2014. Despite the legal limitations at the time regarding same-sex marriage in Texas, both parents actively participated in the child's upbringing and maintained a shared parenting agreement after their separation, which included regular visitation and joint custody arrangements.

Cristina performed typical parenting duties during her overnight visits with the child and began paying Andrea $100 monthly in child support, covering half of the daycare expenses, while also maintaining the child's health insurance. In April 2016, Andrea filed for divorce in El Paso, leading to an agreed decree that erroneously stated there were no children of the marriage, leaving custody, visitation, and support unaddressed. Despite this, both parties informally agreed to continue their previous possession schedule post-separation, with Cristina claiming she had the child more than 50% of the time after the divorce. Cristina did not adopt the child or seek court recognition of her parental rights, believing Andrea's assurances would protect her. Tensions escalated in September 2017, resulting in Andrea unilaterally denying Cristina overnight visitation, citing concerns about Cristina's mental health. Cristina continued to make support payments and maintain the child on her insurance. 

In November 2017, Cristina filed a SAPCR petition seeking custody and support, asserting her standing as the child's mother. She requested joint managing conservatorship with Andrea and exclusive rights to determine the child's primary residence. Andrea denied Cristina's claims and disputed her status as the child's mother. The trial court initially deferred ruling on temporary orders until Luis, the sperm donor, was served to establish his rights. Cristina later amended her petition to include Luis, who denied the allegations but did not contest Cristina's maternal status. At a September 2018 hearing, Cristina testified about her relationship with the child and the agreements made with Andrea, but the trial court denied her request for temporary orders.

Cristina testified that Luis did not provide financial support for the child, and neither she nor Andrea expected him to. Luis did not dispute Cristina's testimony or claim rights to the child. At the hearing's conclusion, Andrea moved for a directed verdict, asserting that Cristina lacked standing under the Texas Family Code, as she was not the child's biological mother and had not adopted the child. Cristina countered that she had standing based on recent U.S. Supreme Court rulings affirming the rights of same-sex spouses regarding parentage. The trial court granted Andrea's motion, stating Cristina could not be considered a parent due to her non-biological status and the absence of a paternity presumption since Luis was identified as the father. The court denied Cristina’s request for temporary orders, finding she lacked standing under Texas Family Code § 102.003(1) and did not meet the definition of parent under § 101.024. However, the court did not issue a final order denying her SAPCR petition.

Cristina subsequently filed a second amended SAPCR petition, claiming standing based on having provided actual care, control, and possession of the child for at least six months before the petition. She sought temporary joint conservatorship orders but did not assert that she was the child’s parent. Andrea moved to dismiss this petition, arguing Cristina lacked the necessary care, control, or possession for the required 90 days before filing. Andrea noted that Cristina admitted to not having possession after September 30, 2017, and contended that Cristina's original petition did not allege standing based on care, control, or possession, making it too late to include in the amended petition. Cristina argued her amended petition should relate back to the original filing date for standing purposes. The trial court heard Andrea's motion in October 2019 and stated it would review the parties' post-trial briefs before making a decision.

The court declined to rule on Cristina’s renewed motion for temporary orders, believing rekindling her relationship with the child would not be in the child's best interest, as the relationship might not be permanent. On December 30, 2020, the outgoing trial court judge dismissed Cristina’s SAPCR petition without findings of fact or conclusions of law. Cristina requested findings under Rule 296 of the Texas Rules of Civil Procedure and filed a motion for a new trial, both of which were denied by the newly elected judge. Cristina's appeal centers on two issues. 

In the first issue, Cristina argues that the trial court erred in finding she lacked standing as the child’s parent under section 102.003(a)(1) of the Texas Family Code, claiming the court did not interpret the Code in a constitutionally sound, gender-neutral manner that ensures equal rights for same-sex spouses regarding parentage. Andrea contends Cristina cannot be deemed the child’s “mother” according to the gender-specific definitions in the Family Code and asserts Cristina waived her right to claim standing due to her original pleadings.

The court decided to first address the merits of Cristina's standing before the waiver issues. In her second issue, Cristina claims standing under section 102.003(a)(9), asserting she had possession of the child for over six months, but this issue was not addressed since the first issue was resolved in her favor, establishing her standing as the child's parent.

The document further explains that standing is a threshold issue determining whether a plaintiff has a justiciable interest in the outcome of a suit, essential for the court’s subject matter jurisdiction. Without standing, the merits of a case cannot be litigated or decided, emphasizing that the determination of standing must precede any consideration of the claims' merits.

Standing is a legal question reviewed de novo by appellate courts, with courts favoring the plaintiff's pleadings while considering relevant evidence. In cases where the trial court has not provided findings of fact or conclusions of law, courts will infer necessary findings if supported by pleadings and evidence, and if the judgment can be sustained by reasonable theories aligned with the law. In Texas, Title 5 of the Family Code governs standing in Suit Affecting the Parent-Child Relationship (SAPCR) proceedings, with Section 102.003 allowing a child's parent to file a SAPCR at any time. A "parent" is defined broadly to include biological and adoptive mothers and fathers. However, the Code does not define "mother" or "presumed father," directing consideration to the Uniform Parentage Act (UPA) for clarity. Under the UPA, a man is presumed to be the father if married to the mother at the time of the child's birth, while a mother-child relationship is established through childbirth, adjudication, or adoption. This gender-specific language raises questions about its applicability to same-sex marriages, particularly regarding the establishment of maternity.

The trial court's interpretation regarding the applicability of the Uniform Parentage Act (UPA) to Suit Affecting Parent-Child Relationship (SAPCR) proceedings is deemed erroneous. The Texas Family Code explicitly states that the UPA governs all determinations of parentage, including original SAPCR petitions. Consequently, to assess Cristina's standing as a parent under section 102.003(1), it is essential to reference the UPA provisions. 

The interpretation of the Texas Family Code is also influenced by the U.S. Supreme Court's decisions in Obergefell v. Hodges and Pavan v. Smith, which assert that same-sex couples must be afforded the same rights as opposite-sex couples regarding marriage and parental recognition. Obergefell established that same-sex couples cannot be denied the fundamental right to marry, while Pavan extended these rights to include equal treatment in parental matters, such as the inclusion of both spouses' names on a child's birth certificate. The Supreme Court emphasized that denying these rights constitutes a form of disparate treatment that violates the principles established in Obergefell. Therefore, the standing provisions in the Texas Family Code must align with the constitutional mandates stemming from Obergefell and Pavan, as highlighted by prior case law.

Interpretation of statutory language requires that it be construed constitutionally wherever possible, as established in *City of Pasadena v. Smith* and *City of Houston v. Clark*. Texas Government Code presumes compliance with state and federal constitutions, necessitating equal treatment of spouses in same-sex marriages regarding benefits similar to those in opposite-sex marriages. This includes the ability of a non-gestational spouse in a same-sex marriage to assert parental rights over a child born during that marriage. The Uniform Parentage Act (UPA) states that paternity provisions also apply to maternity determinations, affirming that female spouses can establish parentage equivalently to male spouses. The Family Code's clear language intends to afford spouses in same-sex marriages the same rights as those in opposite-sex marriages concerning parentage claims. The interpretation aligns with U.S. Supreme Court mandates for equal benefits for same-sex spouses, ensuring that the Family Code supports such rights without rendering it unconstitutional. In the case of *Treto*, a court recognized a female spouse in a same-sex marriage as the “presumed” parent of a child born during the marriage, rejecting arguments against her parental status based on biological connection, thereby affirming the Family Code's provisions regarding presumed parentage.

The court concluded that, following the Supreme Court's ruling in Pavan, the statute must be interpreted to grant equal maternity rights to non-gestational spouses in same-sex marriages, paralleling the paternity rights of male spouses in opposite-sex marriages. This interpretation recognizes the non-gestational female spouse as the "presumed" parent of a child born during the marriage, thereby preventing her from evading parental responsibilities simply due to a lack of biological connection. The court emphasized that aligning same-sex spouses with opposite-sex spouses enhances family stability and protects children's interests by enforcing child support obligations. It was noted that the presumption of parentage is rooted in the principle of prioritizing the child's best interest, advocating for joint managing conservatorship and frequent contact with both parents. The court also addressed a specific case where a mother, despite claiming responsibilities towards the child, was hindered by gender-specific definitions in the Family Code that previously denied her the right to seek conservatorship. The court affirmed that these definitions should not obstruct a spouse from claiming parental rights, concluding that Cristina could be regarded as the presumed parent of the child born during her marriage to Andrea, based on her testimony. However, Andrea contended that Cristina's acknowledgment of not being the biological mother undermined the presumption of parentage.

The Code allows for the presumption of paternity to be rebutted if it is determined that the presumed father is not genetically related to the child. Andrea argues that just as this presumption applies to male spouses in opposite-sex marriages, any presumption of maternity should apply similarly to female spouses in same-sex marriages, thereby undermining Cristina's standing as a parent. The court disagrees, citing section 160.703 of the Family Code, which deals with assisted reproduction. This section, although gender-specific, must be interpreted in a gender-neutral manner to align with constitutional principles, ensuring equal application for same-sex couples. Andrea contends that the Code is not applicable because the insemination occurred in a non-medical setting rather than through a licensed physician. She correctly notes that under the Family Code, a "donor" is defined as someone providing eggs or sperm to a licensed physician, which excludes Luis from being classified as a donor, thereby allowing him to claim parental rights due to his genetic relationship with the child. However, evidence indicates that Luis did not intend to assert parental rights or obligations at the temporary orders hearing. If he attempts to claim such rights upon remand, the trial court will address any factual disputes regarding the intended parental roles.

Cristina did not waive her right to assert standing as a parent under the Family Code, despite Andrea's arguments regarding procedural deficiencies in her pleadings. Andrea claimed that Cristina failed to allege she was the child's "presumed parent" and that she abandoned this claim in her second amended petition by only asserting standing based on having had "care, control, and possession" of the child. The court reviews the sufficiency of pleadings de novo, noting that in family law cases, technical pleading rules are less stringent due to the paramount concern for the child's best interests. Cristina's assertion that she is the child's "mother" suffices to establish her standing as a "parent," as the Family Code defines "mother" within the definition of "parent." The court also dismissed the notion that a child can only have one mother, citing constitutional rights for non-gestational spouses to be recognized as parents. Consequently, Cristina's pleadings were adequate to claim standing, and Andrea's argument regarding the second amended petition was rejected.

Andrea argues that Cristina’s second amended petition supersedes earlier petitions, allowing only the allegations in the latest petition to be considered, based on Rule 65 of the Texas Rules of Civil Procedure. However, Rule 65 is interpreted to allow for exceptions, particularly when a party contests the necessity of an amendment. Generally, an amended petition replaces prior pleadings, as established in case law, rendering earlier allegations effectively dismissed unless a party claims error in the court's decision regarding the amendment.

Cristina, in her original and first amended petitions, claimed standing as the child's mother to file a Suit Affecting the Parent-Child Relationship (SAPCR). The trial court ruled that she lacked standing, prompting Cristina to request permission to amend her petition to assert an alternative basis for standing. This request arose from the trial court's perceived error regarding her standing, and Cristina is appealing this ruling.

Additionally, Andrea contends that Cristina waived her right to challenge the gender-neutral provisions of the Family Code because she only raised these constitutional arguments orally during the temporary orders hearing, not in a written pleading. This assertion is supported by case law where a party was barred from raising a constitutional challenge on appeal due to a failure to properly present it in the trial court. Notably, the trial court's order regarding Cristina's standing was not a final, appealable judgment.

Temporary orders under the specified section are not eligible for interlocutory appeal. Cristina could have challenged the ruling through a petition for writ of mandamus or after a final judgment from the trial court. A party may seek review of temporary orders either by petition for writ of mandamus or by properly assigning the issue in their appeal brief. It is noted that a party can include findings from temporary orders in an appeal related to a final judgment. Challenges must be presented in written pleadings, as oral arguments alone do not preserve issues for appeal, particularly in summary judgment contexts, per Rule 166a(c) of the Texas Rules of Civil Procedure. However, the trial court's ruling stemmed from an oral motion for directed verdict rather than a summary judgment, making Rule 166a inapplicable. Instead, the general preservation rule under Rule 33.1(a) applies, which allows issues to be preserved through timely requests, motions, or objections, without a written requirement. Courts have acknowledged that oral objections can satisfy preservation requirements. Cristina effectively preserved her constitutional arguments by raising them during the temporary orders hearing, initiated by Andrea's motion for directed verdict questioning Cristina's standing as a parent under the Family Code.

Cristina contends that the Family Code should be interpreted in a constitutionally-sound, gender-neutral way, allowing same-sex spouses to assert parental rights comparable to those of opposite-sex spouses, citing the Supreme Court’s rulings in Obergefell. The trial court implicitly rejected her standing as a “parent” under the Code. The ruling that Cristina lacked standing to file her Suit Affecting Parent-Child Relationship (SAPCR) petition was challenged, and it was determined that she did not waive her right to contest this ruling. The court concluded she possessed standing under the Family Code to pursue her SAPCR petition, indicating that the trial court erred in dismissing it.

Cristina was not obligated to file a separate suit to establish her parentage. While a concurring opinion criticized her for not explicitly requesting a parentage adjudication under the Uniform Parentage Act (UPA) in her SAPCR petition, the court disagreed. It clarified that the Family Code allows a SAPCR petition to seek conservatorship and support without requiring an independent adjudication of parentage. The Code permits a "presumed father" to initiate a SAPCR regarding a child born during marriage, and a man can assert his status as a father in such proceedings without a prior UPA adjudication. Relevant case law supports this interpretation, affirming that individuals asserting paternal claims can seek conservatorship under the SAPCR framework without needing a distinct parentage declaration.

A gender-neutral interpretation of parental rights indicates that if a man can seek to establish his rights as a father in a Suit Affecting the Parent-Child Relationship (SAPCR), a woman should also have the same opportunity. This principle aligns with the ruling in *Interest of N.M.B.*, where a woman in a same-sex relationship sought custody for a child conceived via artificial insemination. At the time, the Texas Family Code did not grant "intended parents" the standing to file an original SAPCR petition, which resulted in the dismissal of her case. However, in contrast, Cristina's SAPCR petition is based on her standing as a legal parent, recognized by the amended Code, allowing her to pursue her rights in this proceeding.

Additionally, an issue arises regarding whether Cristina should be estopped from claiming parental standing due to a statement in the divorce decree stating no children were born during the marriage. Andrea did not assert this estoppel defense in the trial court, nor did the trial court consider it in its decision to dismiss Cristina's petition. It is noted that any party wishing to claim judicial estoppel must raise it as an affirmative defense, which Andrea failed to do. Judicial estoppel prevents a party from asserting a claim inconsistent with previous positions taken in legal proceedings.

Judicial estoppel is recognized as an affirmative defense in Texas law, which must be raised in the trial court to be considered on appeal. A party waives this defense by failing to plead it affirmatively. In a divorce case, Cristina and Andrea submitted a pro se divorce decree stating no children were born during the marriage, but subsequent testimony and statements indicated a child had been born. The trial court's ruling on a bill of review regarding this matter is not documented in the record. Texas Family Code mandates that parties disclose any children born during the marriage to determine support obligations, making the joinder of divorce proceedings with a Suit Affecting Parent-Child Relationship (SAPCR) necessary. If a SAPCR is not included, the divorce decree cannot be deemed final. Several cases support the notion that a divorce decree is interlocutory if it omits children or incorrectly states their absence, thus preventing appellate review and necessitating a remand to the trial court. This principle is upheld in multiple precedents, indicating that erroneous statements regarding children invalidate the finality of divorce decrees.

A court has previously ruled that noncompliance with mandatory joinder requirements in divorce proceedings can render a divorce decree void. In Soliz v. Soliz, a husband was allowed to reopen a divorce decree when the wife failed to disclose one of their children. Similarly, in Gonzalez v. Gonzalez, a husband’s divorce petition was deemed insufficient as it omitted information about one of their children. In the current case, evidence showed that a child was born during Andrea and Cristina's marriage, but this child was not disclosed during the divorce. The divorce decree did not address custody or support for the child, making it non-final regarding these issues. The Uniform Parentage Act (UPA) does not classify the divorce decree as a final adjudication of non-parentage since it did not explicitly identify the child or provide for child support. Additionally, Andrea and Cristina’s failure to disclose the child's existence and their private custody agreement, made without court approval, do not negate the legal obligation for support or prevent the court from establishing necessary conservatorship and support orders for the child.

Cristina has standing to file a Suit Affecting the Parent-Child Relationship (SAPCR) petition as a presumed parent under a gender-neutral reading of the Family Code. The court will not permit errors from a prior divorce proceeding to obstruct her ability to seek this order. Allowing such errors would enable a failure to disclose children born during the marriage, undermining legislative intent to protect children's interests, including the establishment of child support obligations. The Family Code mandates court approval of all parental agreements regarding child support to ensure they serve the child's best interest. Cristina's first issue is sustained, and while the court does not assess the merits of her conservatorship claim for the child born during the same-sex marriage, it affirms her right to pursue that claim. The trial court's dismissal of Cristina's SAPCR petition is reversed, and the case is remanded for further proceedings. The court finds the second issue unnecessary to consider.