In the Interest of D. A. M. and B. A. M.--Appeal from 24th District Court of Calhoun County

NUMBER 13-03-764-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF D.A.M. AND B.A.M.

On appeal from the 24th District Court of Calhoun County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo and Garza

Memorandum Opinion by Justice Garza

This appeal arises from an action to determine custody of and access to two children, D.A.M. and B.A.M. // Appellants, Rhonda and Robert // , challenge the trial court s dismissal of Robert s Petition in Intervention of Father in a Suit Affecting the Parent-Child Relationship ( SAPCR ) and Petition to Adjudicate Parentage in a SAPCR. Appellants argue that, in dismissing the petitions, the trial court erroneously applied the law of presumed parentage that was in effect at the time of B.A.M. s birth instead of applying the law in effect at the time the suit was filed. // Appellants further argue that as a result of the error in applying the former law, the trial court also erred in determining the limitations period. We agree with appellants and reverse and remand the portion of the trial court s decision pertaining to B.A.M. for further proceedings consistent with this opinion.

D.A.M. was born on November 25, 1994, and B.A.M. was born on October 11, 1996. Rhonda is their mother. The children s alleged father is Gary. Gary and Rhonda were never married, but they lived together on-and-off until 1997. Believing he was the father of both children, Gary attended their births and signed his name on their birth certificates. After the relationship between Gary and Rhonda ended, Gary and the two children moved to Port Lavaca, Texas, to live with appellee, Virginia. // Gary died on April 21, 2001, and Rhonda took possession of the children. In March 2002, Rhonda left the children with their maternal grandmother, Pauline, while she traveled. While the children were in Pauline s care, the Texas Department of Protective and Regulatory Services received a report from the children s school stating that the children appeared to be ill-fed and poorly clothed. A CPS caseworker investigated the report and determined that there was little food in Pauline s house and that the children s hygiene was not being properly maintained. As a result of this investigation, a voluntary placement plan was entered into between the Department and Pauline, placing the two children with Virginia. //

On November 26, 2002, Virginia filed a SAPCR, and a temporary restraining order was signed. On July 11, 2003, Robert, filed a Petition in Intervention of Father in a SAPCR and a Petition to Adjudicate Parentage in a SAPCR. Virginia filed motions to dismiss on July 24, 2003, and amended motions to dismiss on August 19, 2003. A final hearing was held on August 19, 2003. Robert s petitions were struck by the court and Virginia was awarded sole managing conservatorship of both children, Rhonda was awarded possessory conservatorship with supervised visitation, and the trial court entered a finding that Gary was the presumed father of the children. This appeal ensued.

I. Applicable Law

The trial court applied former section 151.002 and found Gary to be the presumed father of B.A.M. See Act of April 20, 1995, 74th Leg., R.S., ch. 20, 1, amended by Act of September 1, 1995, 74th Leg., R.S., ch. 751, 22, amended by Act of September 1, 1999, 76th Leg., R.S., ch. 556, 7, deleted by Act of June 14, 2001, 77th Leg., R.S., ch. 821, 2.13. Section 151.002(a)(5) of the 1996 version of the Family Code provided, A man is presumed to be the biological father of a child if before the child reaches the age of majority, he receives the child into his home and openly holds out the child as his biological child. Act of April 20, 1995, 74th Leg., R.S., ch. 20, 1 (deleted 2001). Section 151.002(b) also provided that a presumption under this section may be rebutted under section 160.110 of the Texas Family Code. // The trial court also applied the 1996 Family Code version of section 160.110 and dismissed Robert s intervention and parentage suit under section 160.110(f) because the two year statute of limitations set out in this section barred him from intervening. Appellants assert that in ruling against Robert s right to intervene in the suit and to have his parentage established as to B.A.M., the trial court erred in applying the 1996 version of sections 151.002 and 160.110 of the Texas Family Code. Appellants argue that the trial court should have instead relied on section 160.204 and the corresponding limitations period that was in effect in 2002 at the time of the filing of the SAPCR. // Appellee on the other hand, argues that section 151.002(a)(5) of the 1996 version of the Texas Family Code should remain the applicable law in this case because it was the law in effect at the time of B.A.M. s birth.

Appellants submit that the family code version of section 160.204 that was in effect in 2002 is the law that should have been applied in this case because it replaced section 160.110 insofar as presumptions of paternity are concerned. See Act of June 14, 2001, 77th Leg., R.S., ch. 821 (amended 2003) (current version at Tex. Fam. Code Ann. 160.204 (Vernon Supp. 2004-05)). We agree. The Historical and Statutory Notes accompanying the 2003 adoption of section 160.204 explain that:

The change in law made by this Act relating to a court order establishing paternity or the obligation to pay child support applies only to a suit affecting the parent-child relationship filed on or after the effective date of this Act. A suit affecting the parent-child relationship filed before the effective date of this Act is governed by the law in effect on the date the suit was filed and the former law is continued in effect for that purpose.

Tex. Fam. Code Ann. 160.204. Appellee filed the SAPCR on November 26, 2002. The law in effect at that time was the version of section 160.204 that became effective on June 14, 2001. Accordingly, we conclude that the trial court erred in applying former sections 151.002 and 160.110 of the Family Code and sustain appellants first issue.

II. Limitations Period

Appellants further contend that as a result of the error in applying the former law, the trial court also erred in applying the limitations period. The trial court applied the limitations period found in former section 160.110 and dismissed Robert s petitions because the two year statute of limitations barred him from intervening. We have already held that the trial court erred in applying the former law, including the limitations period. We conclude that the appropriate limitations period is set out in Family Code sections 160.606 and 160.607 which became effective on June 14, 2001. See Tex. Fam. Code Ann. 160.606 (Vernon 2002); Act of June 14, 2001, 77th Leg.,R.S. Ch. 821 (amended 2003) (current version at Tex. Fam. Code. Ann. 160.607 (Vernon Supp. 2004-05)).

For the above stated reasons, we reverse and remand the trial court s finding as it relates to the paternity of B.A.M. to be tried in accordance with the law in effect on November 26, 2002.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and filed

this the 12th day of May, 2005.