Texas Judiciary Online - HTML Opinion

III. Conclusion

We reverse the = portion of the=20 Adjudication of Nonparentage in which the trial court ruled the = AOP was=20 invalid and adjudicated Flowers=3Ds non-paternity = relative to=20 S.R.B., and we remand for further proceedings consistent with this = opinion. Because the Attorney General does not appeal the = portion of=20 the Adjudication of Nonparentage concerning T.M.T., we affirm that = part of=20 the order.

/s/ =20 Charles W. Seymore

Justice

Judgment rendered and Opinion filed July = 24,=20 2008.

Panel consists of = Justices=20 Fowler, Frost, and Seymore.

^{^[1]} The AOP was executed by = AJermaine=20 Braxton,@=20 whereas AJermaine = Braxton=20 Flowers@ was=20 referenced in the Adjudication of Nonparentage. The record = contains=20 no explanation for this discrepancy between names. However, = the=20 social security numbers referenced in the AOP and Adjudication of=20 Nonparentage reflect AJermaine = Braxton@ and = AJermaine = Braxton=20 Flowers@ are the=20 same man. We will refer to him as AFlowers@ throughout = this=20 opinion.

^{^[2]} A signatory must commence a = proceeding to=20 rescind before the earlier of: (1) the 60th day after the = effective date=20 of the AOP; or (2) the date of the first hearing in a proceeding = to which=20 the signatory is a party to adjudicate an issue relating to the=20 child. See Tex. Fam. Code Ann. ' 160.307. Generally, an AOP takes = effect on=20 the date of the child=3Ds birth or the filing of the document = with the=20 Bureau of Vital Statistics, whichever occurs later. = Id.=20 ' 160.304(c). In this case, the AOP = was filed=20 with the Bureau of Vital Statistics after S.R.B.=3Ds birth and thus took effect upon = filing. =20 See id. The record does not reflect that a hearing = occurred=20 before the effective date of the AOP. Thus, a signatory was = required=20 to commence a proceeding to rescind the AOP by the 60th day after = its=20 effective date. See id. ' 160.307. This period expired two = years=20 before the trial court=3Ds order.

^{^[3]} A proceeding to challenge the AOP = must be=20 commenced before the fourth anniversary of the date the AOP was = filed with=20 the Bureau of Vital Statistics unless the signatory was a minor on = the=20 date he/she executed the AOP, which extends the period for = challenge.=20 See Tex. Fam. Code Ann. ' 160.308(a). Thomas was a minor = when she=20 signed the AOP; but, Flowers was not a minor when he signed = it. The=20 trial court rendered its order less than four years after the AOP = was=20 filed with the Bureau of Vital Statistics, so the period for = challenge by=20 either signatory had not expired.

^{^[4]} Finally, we note the Attorney = General=20 contends the trial court was required, at a minimum, to order = genetic=20 testing before adjudicating Flowers=3Ds non-paternity of S.R.B. Although = the=20 Attorney General emphasizes this argument in its brief, we = construe it as=20 an alternative contention. Specifically, as the Attorney = General=20 recognizes, proof by genetic testing of the male = signatory=3Ds non-paternity constitutes a material = mistake of=20 fact under section 160.308(a). See Tex. Fam. Code = Ann.=20 ' 160.308(d). Further, in a = proceeding to=20 adjudicate paternity, the paternity of a child having an = acknowledged=20 father may be disproved only by admissible results of genetic = testing=20 excluding him, or identifying another man, as the father. = Id.=20 ' 160.631. Additionally, subject to = a few=20 exceptions, a court shall order genetic testing if requested by a = party in=20 a proceeding to determine parentage. Tex. Fam. Code Ann.=20 ' 160.502(a) (Vernon 2002). = However, there=20 was no basis for ordering genetic testing relative to S.R.B. = because no=20 signatory commenced a proceeding to rescind or challenge the AOP = in the=20 first place. Moreover, adjudication of paternity was not = necessary,=20 and this case was not a proceeding to determine parentage of = S.R.B. =20 Instead, based on the AOP, the Attorney General proceeded directly = to its=20 request for conservatorship and support orders relative to = S.R.B. =20 Thus, the trial court erred by adjudicating non-paternity of = S.R.B.,=20 irrespective of the absence of genetic=20 = testing.