OPINION
Appellant J.R.R. (Jordan)
1
appeals the trial courts order granting appellee J.C.F. (Frank)’s petition to adjudicate parentage, which Frank brought to establish a father-child relationship with L.M.R. (Lucy). Jordan was Lucys presumed father, and Frank filed this suit over one year after Lucys fourth birthday. When a child has a presumed father and is over the age of four, § 160.607 of the Texas Family Code bars suits adjudicating parentage, with only two exceptions. See Tex. Fam. Code Ann. § 160.607(b). By a single issue, which we address as two issues, Jordan argues that the trial court erred in concluding (1) that one or both of the statutory exceptions apply or (2) that applying § 160.607 in this case violated Franks Fourteenth Amendment rights under the United States Constitution. We reverse and render judgment.
I. Background 2
Jordan and L.G. (Dina), Lucys mother, were married when Lucy was born in May 2014. In late October 2014, Dina and Jordan separated. In August 2015, Dina and Frank began cohabiting. In October 2015, Dina and Jordan filed for divorce, and the divorce was granted in August 2016. Four children were born during Jordan and Dinas marriage, and the divorce order provided for visitation between Jordan and each of the children. Dina was granted the exclusive right to designate the childrens residence, and they now reside with Dina and Frank—who, at some point before suit was filed, married.
In September 2019, Frank filed his petition to adjudicate parentage after he took a DNA test indicating a 99.96% probability that he was Lucys biological father. Jordan filed his answer conceding that, based on the DNA test results, Frank was likely Lucys biological father, but arguing among other things that “[Frank] is precluded from seeking an adjudication of parentage because [Frank]’s claim is untimely and barred by Texas Family Code § 160.607(a).” Frank responded with a brief in support of his petition, arguing that his federal constitutional rights as a parent are infringed upon by the statutory requirement that his suit be brought before Lucys fourth birthday. The trial court set a final hearing on the petition for May 17, 2021. No testimony was taken at the hearing beyond arguments by counsel, and the trial court requested further briefing on the exceptions to the four-year limitations period, which counsel for both parties subsequently filed.
In its August 30, 2021 “Order Adjudicating Parentage,” the trial court ruled, among other things, that Frank “is declared the father of [Lucy]” and that “the father-child relationship is established between [Lucy] and [Frank] for all purposes.” Jordan then timely filed his notice of appeal.
II. Uniform Parentage Act
Jordan argues that the trial court erred by granting Franks petition because the statute of limitations had passed, no statutory exception applied, and Texas Family Code § 160.607 is constitutional. Frank argues that a statutory exception applied, or alternatively, that the statute violates his Fourteenth Amendment rights under the United States Constitution.
A. Standard of Review
We review a trial courts order in a proceeding to adjudicate parentage for abuse of discretion. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)). A trial court abuses its discretion when it acts “without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable.” Worford, 801 S.W.2d at 109. To determine whether the trial court abused its discretion, we review the “evidence in a light most favorable to the courts decision and indulge every legal presumption in favor of its judgment.” In re J.I.Z., 170 S.W.3d 881, 883 (Tex. App.— Corpus Christi–Edinburg 2005, no pet.). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support its decision. In re R.T.K., 324 S.W.3d 896, 900 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no pet.).
Where, as here, no findings of fact and conclusions of law are filed, “all facts necessary to support the judgment and supported by the evidence are implied.” Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). We must uphold the trial courts judgment “on any legal theory before it, even if the court gives an incorrect reason for its judgment.” Guar. Cnty. Mut. Ins. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986); Miramar Petroleum, Inc. v. Cimarron Engg, LLC, 484 S.W.3d 214, 217 n.2 (Tex. App.—Corpus Christi–Edinburg 2016, pet. denied).
B. Applicable Law
The Fort Worth Court of Appeals recently addressed the subject at issue in this case and cogently explained the relevant law as follows:
A “parent-child relationship” in Texas means the legal relationship between a child and the childs parent as provided under chapter 160 of the family code. See Tex. Fam. Code Ann. § 101.025. Once established, this legal relationship confers numerous rights and duties upon a childs parents. See id. § 151.001. For example, a childs parent has the right to have physical possession of the child, to direct the childs moral and religious training, to make decisions concerning the childs education, and to designate the residence of the child. Id. § 151.001(a)(1), (10). A parent also has the right to represent the child in a legal action and to make other decisions of substantial significance concerning the child. Id. § 151.001(a)(7). A childs parent has the right to inherit from and through the child and generally has the right to the services and earnings of the child. Id. § 151.001(a)(5), (9). The list goes on. See id. § 151.001.
The duties of a parent are similarly vast. A childs parent has the duty of care, control, protection, and reasonable discipline of the child. Id. § 151.001(a)(2). A parent has the duty to support the child, a duty that includes providing the child with clothing, food, shelter, medical and dental care, and an education. Id. § 151.001(a)(3). A parent also generally has the duty to manage the estate of the child. Id. § 151.001(a)(4). And there are more. See id. § 151.001.
The parent-child relationship includes the mother-child relationship and the father-child relationship. See id. §§ 101.024(a), .025, 160.102(11), .201. [Frank] desire[d] to establish the latter between himself and [Lucy], thereby placing in [Frank] all the rights and duties of a parent as described above. A father-child relationship can be established between a man and a child in the following ways:
(1) an unrebutted presumption of the mans paternity of the child under Section 160.204;
(2) an effective acknowledgment of paternity by the man under Subchapter D, unless the acknowledgment has been rescinded or successfully challenged;
(3) an adjudication of the mans paternity;
(4) the adoption of the child by the man; or
(5) the mans consenting to assisted reproduction by his wife under Subchapter H, which resulted in the birth of the child.
Id. § 160.201(b). The first and third means are in play here. Under the first means, a father-child relationship between a man and a child can be established by presumption under several circumstances, including if the man was married to the childs mother when the child was born. Id. § 160.204(a)(1). That is what happened here: [Jordan] was married to [Dina] when she gave birth to [Lucy]. Thus, the law presumes that [Jordan] is [Lucy]’s father. See id.
But [Frank] alleges that he, not [Jordan], is [Lucy]’s biological father. Nevertheless, [§] 160.204—the statute prescribing the circumstances under which a man is presumed to be a childs father—does not presume a man to be a childs father merely because the man is the childs biological father. See id. § 160.204. And if a presumption arises that a man is a childs father under [§] 160.204, that presumption is a particularly strong one, even if it so happens that the man is not the childs biological father. The presumption can be rebutted in only two circumstances: (1) when there is a formal adjudication of parentage in a proceeding brought for that purpose or (2) when the presumed father files a valid denial of paternity in conjunction with another persons filing of a valid acknowledgement of paternity. Id. § 160.204(b); In re S.C.L., 175 S.W.3d 555, 559 (Tex. App.—Dallas 2005, no pet.). So long as the presumption stays unrebutted, the law deems the presumed father to be the childs father. Tex. Fam. Code Ann. §§ 160.102(13), .201(b)(1); S.C.L., 175 S.W.3d at 557.
With [Jordan] as [Lucy]’s presumed father, then, [Frank did] not have an existing father-child relationship with [Lucy] under Texas law. See Tex. Fam. Code Ann. § 160.201. Instead, based on [Frank]’s allegation that he is [Lucy]’s biological father, [Frank was] an alleged father. See id. § 101.0015 (defining “alleged father” to mean “a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined”). So [Frank] filed this suit to adjudicate parentage in order to rebut [Jordan]’s presumed-father status and to establish a father-child relationship with [Lucy]. See id. § 160.602(a)(3).
If a child does not have a presumed, acknowledged, or adjudicated father, a person with standing to bring a suit to adjudicate the parentage of the child may file that suit at any time. See id. §§ 160.602, .606. But that is not so if the child has a presumed father, as [Lucy] does here. Section 160.607 applies to that situation, and it provides as follows:
(a) Except as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.
(b) A proceeding seeking to adjudicate the parentage of a child having a presumed father may be maintained at any time if the court determines that:
(1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or
(2) the presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the time prescribed by Subsection (a) because of the mistaken belief that he was the childs biological father based on misrepresentations that led him to that conclusion.
Id. § 160.607; see S.C.L., 175 S.W.3d at 557.
In re J.C., 594 S.W.3d 466, 469–70 (Tex. App.—Fort Worth 2019, no pet.).
The party seeking to avoid the four-year limitations period under § 160.607(b) bears the burden to prove that the period was tolled. See In re Rodriguez, 248 S.W.3d 444, 451 (Tex. App.—Dallas 2008, orig. proceeding); see also In re Office of the Atty. Gen., No. 13-11-00006-CV, 2011 WL 578733, at *3 (Tex. App.—Corpus Christi–Edinburg Feb. 15, 2011, orig. proceeding) (mem. op.). The common law discovery rule does not toll the limitations period in § 160.607. In re S.T., 467 S.W.3d 720, 726 (Tex. App.—Fort Worth 2015, no pet.).
III. Discussion
Because the trial court did not file findings of fact or conclusions of law indicating the basis for its judgment, we analyze the two legal theories presented to it: (1) that one or both § 160.607(b) exceptions apply; or (2) that application of § 160.607 to Frank violates his Fourteenth Amendment rights under the United States Constitution. See Tex. Fam. Code Ann. § 160.607; Reyna, 709 S.W.2d at 648; U.S. Const. amend. XIV, § 1.
A. Statutory Exceptions
We first address the argument that a § 160.607(b) exception applied in this case allowing Frank to file his petition after Lucys fourth birthday. See Tex. Fam. Code Ann. § 160.607(b). As applied to this case, those exceptions are either (1) that Jordan and Dina did not live together or engage in sexual intercourse with each other during the probable time of Lucys conception, or (2) that Jordan was precluded from bringing suit before Lucys fourth birthday because of the mistaken belief that he was Lucys biological father based on misrepresentations that led him to that conclusion. See id.
1. § 160.607(b)(1) Exception
As to the first exception, Dina and Jordan stipulated to the fact that they were living together at the time of Lucys birth. Moreover, there is no evidence in the record as to whether Dina and Jordan were engaging in sexual relations during the probable time of Lucys conception. Accordingly, the trial court lacked any evidence upon which to base its decision to grant Franks petition under § 160.607(b)(1), and it would have erred by doing so. See In re R.T.K., 324 S.W.3d at 899–900; Tex. Fam. Code Ann. § 160.607(b)(1).
2. § 160.607(b)(2) Exception
Next, Frank contends that the trial court could have correctly applied § 160.607(b)(2). See Tex. Fam. Code Ann. § 160.607(b)(2). That is, Frank argues that Jordan was precluded from filing a paternity suit due to Dinas misrepresentations that Jordan was Lucys biological father, and therefore, Frank should be able to bring a suit under § 160.607(b)(2). See id. Frank claims that the trial court could have found that Dinas misrepresentation of Jordans status as Lucys biological father constituted common law fraud and fraud by non-dislocusure.
We note initially that to decide this issue in Franks favor, we would have to hold that a party other than a presumed father may raise the § 160.607(b)(2) exception. See id. But we need not decide the issue here because, even if an individual in Franks position could raise the exception, the record is devoid of evidence necessary for him to successfully do so.
In his brief on appeal, Frank states that Dina
misrepresented to [Jordan] that he was the father of [Lucy] since her birth. [Lucy] was listed as a child of the marriage when [Dina] and [Jordan]’s divorce was final․ [Jordan] did not suspect [Frank] was [Lucy]’s biological father at the time of the divorce. [Dina] did nothing at the time to disabuse [Jordan] of the notion that he was [Lucy]’s father. In fact, [Jordan] was granted visitation with [Lucy] when the divorce was final, and since the divorce, [Jordan] has had extended visitation with [Lucy].
On this account, Frank asserts, “The foregoing facts support [a finding that Jordan], the presumed father, mistakenly believed he was [Lucy]’s father due to [Dina]’s misrepresentations ․” We disagree.
The record lacks any evidence supporting any claim of misrepresentation. There is no evidence in the record that Jordan was misled by Dina that he was Lucys biological father, or that Dina knew or assumed that Jordan was not Lucys biological father. In fact, the record reflects that only Frank questioned who Lucys biological father was, that only he suspected that he was Lucys biological father, and that the parties only discovered Jordan was not Lucys biological father when Frank ultimately took and received the results of his DNA test in June 2019. It is Franks burden to provide evidence raising an exception to § 160.607’s four-year statute of limitations. In re Rodriguez, 248 S.W.3d at 451; see Tex. Fam. Code Ann. § 160.607; see also In re Office of the Atty. Gen., 2011 WL 578733, at *3. He failed to meet that burden.
Because the trial court lacked any evidence upon which to base its decision to grant Franks petition under either of the two § 160.607(b) exceptions, even assuming Frank had standing to raise those exceptions, it would have erred by doing so. See In re R.T.K., 324 S.W.3d at 900; Tex. Fam. Code Ann. § 160.607(b). Accordingly, we sustain Jordans argument that no § 160.607(b) exception applied to allow Frank to file his petition after Lucys fourth birthday. See Tex. Fam. Code Ann. § 160.607(b).
B. Constitutionality
We next address Franks contention that § 160.607 violates his federal constitutional rights. Citing the United States Supreme Courts decision in Michael H. v. Gerald D., Jordan argues that the statute is constitutional. See 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (plurality opinion). Frank argues that the statute violates his fundamental right to raise his child under the Due Process Clause of the United States Constitution. See U.S. Const. amend. XIV. According to Frank, a “suit to adjudicate parentage should be allowed at any time whether or not a presumed father is involved.”
The trial courts implicit determination that § 160.607 is unconstitutional is a legal conclusion that we review de novo. Lund v. Giauque, 416 S.W.3d 122, 126 (Tex. App.— Fort Worth 2013, no pet.) (citing Stockton v. Offenbach, 336 S.W.3d 610, 614–15 (Tex. 2011)). We begin with a strong presumption that § 160.607 is constitutional. See Tex. Govt Code Ann. § 311.021(1); Whitworth v. Bynum, 699 S.W.2d 194, 196–97 (Tex. 1985) (“A court begins by presuming a statutes constitutionality, whether the basis of the constitutional attack is grounded in due process or equal protection.”). “The burden is on him who attacks a law for unconstitutionality and courts need not exert their ingenuity to find reasons for holding the law invalid.” Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P. v. Rankin, 307 S.W.3d 283, 285 (Tex. 2010).
In the context of analyzing whether a statute violates a fundamental right under the Fourteenth Amendment, “fundamental rights” are those that are “objectively, deeply rooted in this Nations history and tradition ․ and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720–21, 117 S.Ct. 2258, 2268, 138 L.Ed.2d 772 (1997) (citations and internal quotation marks omitted). “Analyzing whether an asserted right is fundamental first requires a careful description of the asserted right.” In re J.C., 594 S.W.3d at 474 (citing Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258; Schlittler v. State, 488 S.W.3d 306, 313–14 (Tex. Crim. App. 2016)). In this case, the claimed fundamental right at issue is a biological fathers right to commence a paternity suit at any time to establish a parent-child relationship with a child who has a presumed father and is over four years old.
At least two Texas courts have considered and upheld the constitutionality of § 160.607’s four-year statute of limitations in cases with nearly identical facts. See In re J.C., 594 S.W.3d at 474–76 (in which the Fort Worth court held that § 160.607 does not infringe on a biological fathers equal protection rights under the Fourteenth Amendment to the United States Constitution); In re S.C.L., 175 S.W.3d at 558 (in which the Dallas court held that § 160.607 does not infringe on a biological fathers due process rights under the Fourteenth Amendment to the United States Constitution). The courts in both cases relied on the Supreme Courts decision in Michael H. v. Gerald D., in reaching their conclusions. 491 U.S. at 110, 109 S.Ct. 2333.
In Michael H., a wife engaged in an adulterous affair with her neighbor, Michael, and soon after discovered she was pregnant. Michael H., 491 U.S. at 114, 109 S.Ct. at 2337. After the child, Victoria, was born, Michael took a blood test indicating a 98.07% probability that he was Victorias biological father. Id. at 114, 109 S.Ct. at 2337. During the first few years of her life, Victoria and her mother lived with the husband at some points and at other times with Michael. Id. Both men fostered relationships with Victoria and held her out as their own child. Id. After the wife returned exclusively to her marital relationship, Michael, “rebuffed in his attempts to visit” Victoria, filed an action seeking to establish his paternity and right to visit Victoria. Id. at 115, 109 S. Ct. at 2344.
Per California law, however, “the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” Id. at 115, 109 S.Ct. at 2338. The presumption could be rebutted through blood tests, but only by motion of either the wife or husband, within two years of the childs birth. Id. Consequently, the trial court dismissed Michaels action, and the case eventually made its way to the United States Supreme Court, where Michael argued that the California statutory scheme violated his substantive and procedural due process rights under the Fourteenth Amendment to the United States Constitution. Id. at 115–17, 109 S.Ct. at 2338-39; see U.S. Const. amend. XIV, § 1.
A plurality of the Court rejected Michaels arguments, concluding that he did not meet his burden to establish a constitutionally protected liberty interest in his relationship with Victoria. Id. at 121–30, 109 S.Ct. at 2341-46. The Court reiterated that a liberty interest is only one that is “fundamental” and “traditionally protected by our society.” Id. at 122, 109 S.Ct. at 2341. In other words, interests “so rooted in the traditions and conscience of our people.” Id. After conducting a historical inquiry into “older” sources and cases, the Court concluded that nothing therein addressed “the power of the natural father to assert parental rights over a child born into a womans existing marriage with another man.” Id. at 125, 109 S.Ct. at 2343. Furthermore, those sources contained no evidence that “States in fact award[ed] substantive parental rights to the natural father of a child conceived within, and born into, an extant marital union that wishe[d] to embrace the child.” Id. at 127, 109 S.Ct. at 2344. “This is not the stuff of which fundamental rights qualifying as liberty interests are made.” Id.
Thus, the plurality concluded that the California statute, which wholly proscribed standing for a man in Michaels circumstance to challenge paternity, was not unconstitutional, as it did not infringe on any fundamental liberty interest protected by the Fourteenth Amendment. Id. at 129, 109 S.Ct. at 2345; see U.S. Const. amend. XIV, § 1. In the pluralitys view, it was “a question of legislative policy and not constitutional law whether California w[ould] allow the presumed parenthood of a couple desiring to retain a child conceived within and born into their marriage to be rebutted.” Michael H., 491 U.S. at 129–30, 109 S.Ct. at 2345.
The Fort Worth and Dallas courts both concluded that, if a statutory scheme that completely barred a biological father from bringing a suit to adjudicate parentage does not violate fundamental rights under the Fourteenth Amendment, certainly a statutory scheme such a § 160.607—which confers standing and four years for an alleged father to bring suit—would not violate an alleged fathers fundamental rights. In re J.C., 594 S.W.3d at 476; In re S.C.L., 175 S.W.3d at 558; see Tex. Fam. Code Ann. § 160.607. We agree.
Accordingly, we join our sister courts in upholding the constitutionality of § 160.607, and conclude that Franks Fourteenth Amendment rights were not violated by application of the statutes four-year limitations period. See Michael H., 491 U.S. at 130, 109 S.Ct. at 2345–46; In re J.C., 594 S.W.3d at 476; In re S.C.L., 175 S.W.3d at 558; Tex. Fam. Code Ann. § 160.607; U.S. Const. amend. XIV, § 1. The legislative policy in Texas provided Frank with a four-year window to commence his suit, but he failed to timely do so—even though he suspected he was Lucys biological father, and lived with Lucy since she was approximately fifteen months old. Frank argues that § 160.607’s four-year limitations period is arbitrary, and, like § 160.606, which concerns suits to adjudicate parentage when there is no presumed father, § 160.607 should state that a paternity suit may be filed “at any time.” See Tex. Fam. Code Ann. §§ 160.606, 160.607. But that is an issue for the legislature; it is not within this Courts purview to rewrite § 160.607 to provide Frank the relief he seeks. See id. § 160.607.
Jordan has preserved a continuous relationship with Lucy and her three siblings, and, as Lucys presumed father, maintains the concomitant legal rights and duties. We are mindful of the complex circumstances presented here but take comfort in knowing that both Frank and Jordan will care for Lucy to ensure her wellbeing despite the unfortunate situation Lucy was placed in, through no fault of her own.
Having concluded that no exception to § 160.607’s four-year statute of limitations applies in this case, and that the statute did not unconstitutionally burden Franks Fourteenth Amendment rights, we sustain Jordans issue arguing that the trial court erred in adjudicating Frank as Lucys father.
IV. Conclusion
We reverse the trial courts judgment and render judgment dismissing Franks petition to adjudicate parentage.
FOOTNOTES
1
. To preserve the privacy of the child, we identify the parties by pseudonyms. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8.
Opinion by Chief Justice Contreras