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In=20 The For=20 The
MICHELLE =
STAMPER,=20
F/K/A MICHELLE KNOX, Appellant STANLEY =
KEITH KNOX,=20
Appellee
On =
Appeal from the=20
306th District Court Galveston County,=20
Texas Trial =
Court Cause=20
No. 01FD1970
O P I N =
I O=20
N Appellant, =
Michelle=20
Stamper, formerly known as Michelle Knox, appeals the trial =
court's order=20
finding that appellee, Stanley Keith Knox, was not the biological =
father=20
of K.R.K. but that Stamper was equitably estopped from denying =
Knox's=20
parentage. In two issues, Stamper contends that (1) Knox did not =
prove=20
through clear and convincing evidence that he should be =
adjudicated=20
K.R.K.'s father on equitable grounds and that (2) the trial court =
abused=20
its discretion by refusing to consider K.R.K.'s best interest when =
determining whether Knox should be adjudicated as K.R.K.'s father =
on=20
equitable grounds. We reverse and =
render. Stamper and Knox were married =
in June=20
1998. In October 1998, Stamper had a brief sexual relationship =
with Jason=20
Christopher Taylor, and she was also having sexual relations with =
Knox.=20
K.R.K. was born on June 20, 1999. At the time of K.R.K.'s birth, =
Stamper=20
and Knox were still married, and both believed K.R.K. was Knox's =
child. In=20
September 2001, Knox filed a petition for divorce seeking custody =
of=20
K.R.K., and Stamper and Knox ceased living together as husband and =
wife.=20
The trial court issued a standard temporary custody order naming =
Stamper=20
and Knox joint managing conservators of K.R.K. with standard =
rights of=20
possession. Shortly after he petitioned for =
divorce,=20
Knox received an anonymous phone call informing him that K.R.K. =
might not=20
be his child. He had genetic testing conducted which revealed that =
he was=20
not K.R.K.'s biological father, and he informed Stamper of that =
fact=20
through his attorney. Stamper and Taylor then had another genetic =
test=20
conducted which confirmed that Taylor was K.R.K.'s biological =
father.=20
Although Taylor initially petitioned to establish himself as =
K.R.K.'s=20
father and signed an admission of paternity, he later signed an =
affidavit=20
of relinquishment of parental rights in June 2002 and filed a =
motion for=20
nonsuit. In August 2002, K.R.K. made an =
outcry of=20
sexual abuse to Stamper, naming Knox as the abuser. Stamper filed =
a motion=20
for additional temporary orders asking the trial court to deny =
Knox access=20
to K.R.K. In support of her motion, Stamper offered the supporting =
affidavit of a social worker who had worked with K.R.K. and had =
heard=20
K.R.K.'s claims of abuse, as well as evidence from medical =
professionals.=20
A pre-trial conference was held on October 24, 2003. During the=20
conference, the trial ordered a psychological evaluation of the =
parties.=20
In March 2004, the court-ordered psychological evaluation of =
Stamper, Knox=20
and K.R.K. was completed. The examiner, Mary Alvarez, Ph.D., found =
that=20
K.R.K.'s behaviors and allegations were consistent with the abuse =
K.R.K.=20
had alleged because K.R.K.'s allegations had been consistent over =
time and=20
were accompanied by other behaviors that were uncharacteristic for =
her but=20
were not surprising for victims of abuse. Alvarez found it =
unlikely that=20
K.R.K. was making up the allegations of abuse or that Stamper had=20
"coached" K.R.K. into accusing Knox. Alvarez also found that =
Knox's=20
evaluation results were "extremely concerning because [he] meets =
the=20
psychodiagnostic criteria to be considered a psychopath (i.e.,=20
sociopath)." Alvarez characterized this as a "severe =
personality=20
disorder and behavioral disorder" with a poor long-term prognosis. =
Alvarez=20
also reported that Knox showed indications of suffering from =
bipolar=20
disorder. She concluded that there was significant evidence to =
support her=20
recommendation that K.R.K. have only supervised contact with Knox =
and that=20
"[d]ue to the extreme degree of Mr. Knox's psychopathology, the =
only safe=20
place for [K.R.K.] to have any contact with Mr. Knox is at a =
structured=20
supervisory facility that employs individuals capable of high =
levels of=20
supervision, who are familiar with psychopathic =
individuals." Stamper and K.R.K. subsequently =
moved to=20
Harris County, Texas, where Stamper sought a protective order =
against=20
Knox. In March 2006, the 311th Judicial District Court of Harris =
County=20
(the Houston court) issued a protective order in favor of Stamper =
and=20
K.R.K. The Houston court found that Knox had committed family =
violence and=20
that family violence was likely to occur in the future so that a=20
protective order was in the best interest of Stamper and K.R.K. =
and=20
necessary for their welfare and safety. The Houston court's order=20
prohibited Knox from having contact with K.R.K. The Houston court=20
eventually extended the order to remain in force until 2009. The =
evidence=20
in support of the protective order showed that Knox had sexually =
abused=20
K.R.K. This evidence included a medical exam conducted in July =
2002, as=20
well as the affidavit of Jana Kixmiller, LCSW, a counselor and =
Vice=20
President of Children and Family Services for LifeSpring Mental =
Health=20
Services in Jeffersonville, Indiana, who had seen K.R.K. in 11 =
therapy=20
sessions from March through June 2003. The affidavit stated, =
"[K.R.K.] has=20
expressed during therapy sessions that she does not feel 'safe' =
with her=20
'daddy,'" and it detailed K.R.K.'s allegations of sexual abuse by =
Knox.=20
The evidence also showed that Dr. David McCormick, Professor of =
Pediatrics=20
at University of Texas Medical Branch, stated, "Please be informed =
that=20
[K.R.K.] has significant behavioral regression after she visits =
her=20
father." On June 14, 2006, the trial =
court for the=20
paternity issue (the Galveston court) held a hearing on K.R.K.'s=20
paternity. Stamper testified to the events surrounding K.R.K.'s =
conception=20
and birth and her discovery that K.R.K. was not Knox's child. She =
also=20
testified that she had never intentionally deceived either Knox or =
Taylor=20
about K.R.K.'s paternity. She testified that she and Taylor had =
noticed a=20
resemblance between K.R.K. and Taylor's son from another =
relationship, but=20
she did not actually consider the possibility that K.R.K. could be =
Taylor's daughter. At the hearing, Stamper made =
multiple=20
attempts to introduce testimony and other evidence that would =
address the=20
element of K.R.K.'s best interest in the paternity issue. Stamper=20
testified about K.R.K.'s well-being and the current degree of =
contact=20
between K.R.K. and Knox. The trial court sustained Knox's first =
objection=20
to relevancy of this testimony, and, on Knox's second objection to =
relevancy, stated, "I'll allow it. I don't want to go far afield, =
but I'll=20
allow some." Stamper then testified regarding her personal =
knowledge of=20
K.R.K.'s physical and mental health. She testified that K.R.K. was =
suffering from fecal incontinence, was mutilating her hands and =
feet, and=20
was suffering from anxiety. Stamper testified that the anxiety was =
most=20
pronounced prior to Knox's visits and phone calls with K.R.K. =
Stamper=20
testified that K.R.K. was fearful of the phone calls with Knox, =
and that=20
the anxiety and fear she exhibited were unusual for K.R.K., who =
did not=20
usually seem to be anxious or fearful around adults. As Stamper =
testified=20
about her desire to move with K.R.K. to be near family in Indiana, =
counsel=20
for Knox objected, and the trial court questioned the relevancy of =
Stamper's testimony. When Stamper's counsel explained that he was =
trying=20
to establish K.R.K.'s best interest, the trial court responded, =
"That's=20
for next week. I want you to focus on paternity issues. Next week =
is for=20
all the other." Stamper also asked the trial =
court to=20
take judicial notice of the March 2006 protective order issued by =
the=20
Houston Court, along with the accompanying evidence in support of =
the=20
order. Stamper's attorney stated, "[I] would like to enter a =
certified=20
copy of the protective order and ask that the court take judicial =
notice=20
under Rule 201 unless anyone has an objection." After objections =
from=20
counsel for Knox, the trial court stated, "I don't see how it's=20
applicable. Do you have any further witnesses?" Knox also =
testified at the=20
hearing. He testified that he was present at K.R.K.'s birth, =
although he=20
was serving a sentence for intoxication manslaughter at the time. =
He was=20
released for 30 days in order to be with Stamper when K.R.K. was =
born. He=20
went back to prison for 42 days, starting when K.R.K. was 12 days =
old.=20
Knox testified that he was completely sure that he was K.R.K.'s =
father=20
until he received the anonymous phone call. Knox stated that =
Stamper had=20
led him to believe that he was K.R.K.'s father. After Knox heard =
rumors=20
that Stamper and Taylor had spent some time together while he was =
out of=20
town, he confronted Stamper and Taylor, and they assured him that =
their=20
relationship had been purely platonic. Knox testified that Stamper =
had=20
never said anything to indicate that K.R.K. might not be his =
daughter or=20
that she had ever had sexual relations with Taylor. The trial court also heard =
testimony=20
about Knox's criminal background. Knox testified that he had been=20
convicted of felony intoxicated manslaughter, that he had several =
drug=20
convictions in the early 1990s, and that he had been in jail on =
other=20
offenses until approximately 60 days before the hearing. Stamper's =
attorney also attempted to question Knox about any evidence he had =
that a=20
relationship between Knox and K.R.K. was in K.R.K.'s best =
interest.=20
However, the trial court interjected, "I don't see how that's =
relevant to=20
the issue of paternity. That certainly may be relevant to the =
issue of=20
custody, but it's not relevant today. So I want to move on." On =
June 16,=20
2006, the trial court issued an order establishing K.R.K.'s =
paternity. The=20
trial court found that Knox was not K.R.K.'s biological father, =
but held=20
that Stamper was equitably estopped from denying Knox's parentage. =
The=20
order adjudicated Knox as K.R.K.'s father and dismissed Taylor =
from the=20
suit. The trial court did not make any findings of fact regarding =
K.R.K.'s=20
best interest. On July 7, 2006, the trial court entered a final =
decree of=20
divorce naming Knox and Stamper as joint managing conservators, =
with=20
Stamper to establish K.R.K.'s place of residence. Stamper appeals =
the=20
trial court's order establishing Knox's paternity. Standard of=20
Review Stamper argues that Knox failed =
to prove=20
by clear and convincing evidence that he should be adjudicated as =
K.R.K.'s=20
father and that the trial court abused its discretion by failing =
to=20
consider K.R.K.'s best interest. Under section =
160.631 of=20
the Texas Family Code, a man excluded as the father of a child by =
genetic=20
testing shall be adjudicated as not being the father of the child =
unless=20
the results of other genetic testing are admitted to rebut the =
results of=20
the genetic testing. Tex. Fam. Code Ann. =A7 160.631(d) (Vernon =
2002). Here,=20
the trial court correctly found that Knox was not K.R.K.'s =
biological=20
parent. In an attempt to establish =
paternity in=20
spite of the trial court's finding that he was not K.R.K.'s =
biological=20
father, Knox relied on the common law doctrine of estoppel. =
Estoppel in=20
paternity actions is "the legal determination that because of a =
person's=20
conduct, that person will not be permitted to litigate parentage." =
In=20
re Shockley, 123 S.W.3d 642, 651 (Tex. App.--El Paso 2003, no =
pet.);=20
see also Hausman v. Hausman, 199 S.W.3d 38, 41 (Tex. =
App.--San=20
Antonio 2006, no pet.). In order to succeed on this claim, Knox =
had to=20
establish that a parent-child relationship between K.R.K. and =
himself was=20
in K.R.K.'s best interest and that the elements of common law =
equitable=20
estoppel were met. Hausman, 199 S.W.2d at 42; =
Shockley,=20
123 S.W.3d at 652. The application of the doctrine =
of=20
estoppel in paternity actions is designed to achieve fairness as =
between=20
the parents by holding them to their prior course of conduct =
regarding the=20
paternity of the child. Shockley, 123 S.W.3d at 651-52; =
see=20
also Hausman, 199 S.W.3d at 42. It is based on the public =
policy that=20
children should be secure in knowing who their parents are so that =
they=20
will be secure from the potentially damaging trauma that may come =
from=20
being told that a father the child has known all her life is not =
her=20
father. Shockley, 123 S.W.3d at 652; see also =
Hausman,=20
199 S.W.3d at 42. Thus, courts are most inclined to impose =
equitable=20
estoppel to protect the status of a child in a "recognized and =
operative=20
parent-child relationship." Shockley, 123 S.W.3d at 652. =
Each=20
such case must be determined on its own facts with the child's =
best=20
interest being "of paramount concern." Shockley, 123 =
S.W.3d at=20
652-53; see also Hausman, 199 S.W.3d at 42; Tex. =
Fam.=20
Code Ann. =A7 153.001(a)(1) (Vernon 2002) ("The public policy =
of this=20
state is to assure that children will have frequent and continuing =
contact=20
with parents who have shown the ability to act in the best =
interest of the=20
child. . . ."). We therefore consider whether =
Knox bore=20
his burden of establishing (1) that Stamper was equitably estopped =
from=20
denying his paternity and (2) that it was in K.R.K.'s best =
interest that=20
he be declared her father even though it had been conclusively =
established=20
that he was not K.R.K.'s biological father. Equitable=20
Estoppel To establish the elements of =
equitable=20
estoppel, a person seeking to prohibit another from litigating =
parentage=20
must prove that (1) there was a false representation or =
concealment of=20
material facts; (2) made with knowledge, actual or constructive, =
of those=20
facts; (3) to a party without knowledge, or the means of =
knowledge, of=20
those facts; (4) with the intention that it be acted upon; and (5) =
the=20
party to whom it was made must have relied on the =
misrepresentation to his=20
prejudice. Hausman, 199 S.W.3d at 43 (citing =
Shockley,=20
123 S.W.3d at 653). To prevail on his equitable =
estoppel=20
defense, Knox first had to show that Stamper deliberately misled =
him=20
regarding K.R.K.'s paternity with the intention that he act on her =
misrepresentation. The trial court heard evidence that Stamper had =
a=20
sexual relationship with both Knox and Taylor at the time K.R.K. =
was=20
conceived. Although Stamper and Taylor both noticed the =
resemblance=20
between K.R.K. and Taylor's son from another relationship, =
Stamper, Knox,=20
and Taylor all testified that they believed K.R.K. to be Knox's =
child=20
until the time Knox petitioned for divorce and had genetic testing =
conducted. Thus, Knox has presented no evidence to support an =
affirmative=20
finding on any of the first three elements of estoppel. See=20
Hausman, 199 S.W.3d at 43 (citing Shockley, 123 =
S.W.3d at=20
653). Nor is there any evidence that =
Stamper=20
intended to deceive Knox into believing that K.R.K. was his child =
to=20
Knox's prejudice. We have found no evidence that Stamper =
encouraged Knox=20
to participate in K.R.K.'s life or otherwise led him to rely on =
the=20
mistaken view that he was K.R.K.'s father. Cf. Shockley, =
123=20
S.W.3d at 653 (citing the elements of equitable estoppel). To the=20
contrary, there is substantial evidence of Stamper's attempts to =
protect=20
K.R.K. from any participation by Knox in her life, including =
moving from=20
Galveston County with K.R.K., obtaining a restraining order in the =
Houston=20
court against Knox's having any contact with K.R.K. which is to =
remain in=20
effect until 2009, and vigorously pursuing legal efforts to have =
Knox=20
declared not to be the father of K.R.K. on biological or equitable =
estoppel grounds. We hold that Knox failed to =
bear his=20
burden of proving the elements of equitable estoppel. Best Interest of =
the=20
Child Knox also had to prove that it =
was in=20
K.R.K.'s best interest that he be adjudicated her father despite =
genetic=20
proof that he is not her biological father. (1) the length of =
time=20
between the date of the proceeding to adjudicate parentage and the =
date=20
the presumed father was placed on notice that he might not be the =
genetic=20
father; (2) the length of time during which the presumed =
father has=20
assumed the role of father of the child; (3) the facts surrounding =
the=20
presumed father's discovery of his possible nonpaternity; (4) the =
nature=20
of the relationship between the child and the presumed father; (5) =
the age=20
of the child; (6) any harm that may result to the child if =
presumed=20
paternity is successfully disproved; (7) the nature of the =
relationship=20
between the child and the alleged father; (8) the extent to which =
the=20
passage of time reduces the chances of establishing the paternity =
of=20
another man and a child support obligation in favor of the child; =
and (9)=20
other factors that may affect the equities arising from the =
disruption of=20
the father-child relationship between the child and the presumed =
father or=20
the chance of other harm to the child. Tex. Fam. Code Ann. =A7 160.608(b). Despite the trial court's erroneous refusal to admit--in =
response to=20
Knox's objections--relevant evidence on the elements of his =
estoppel claim=20
regarding whether a parent-child relationship with Knox was in =
K.R.K's=20
best interest, the record contains abundant evidence that Knox is =
unstable=20
and violent, that he sexually abused K.R.K., and that K.R.K. =
suffers from=20
anxiety and other self-destructive behaviors when she is around =
Knox. The=20
trial court also heard uncontested testimony regarding Knox's =
extensive=20
criminal record, including Knox's own testimony that he had been =
convicted=20
of the felony of intoxicated manslaughter and that he had been in =
jail on=20
other offenses just 60 days before the paternity hearing took =
place. The=20
record contains no testimony regarding any harm that K.R.K. would =
suffer=20
if Knox's paternity was disproved. Indeed, the trial court forbade =
Knox to=20
have unsupervised visitation with K.R.K. after 2002, when K.R.K. =
was three=20
years old, and the Houston Court issued a protective order denying =
Knox=20
all access to K.R.K. until 2009. With respect to the section 160.608 factors, Knox, by his own =
voluntary=20
submission to genetic testing, was placed on notice that he was =
not=20
K.R.K.'s biological father in 2001, when K.R.K. was two years old. =
Because=20
Knox had been in jail prior to K.R.K.'s birth and returned to jail =
just 12=20
days after she was born to complete his sentence for intoxication=20
manslaughter, and because he filed for divorce when she was two, =
he=20
assumed the role of father to K.R.K. in an ongoing relationship =
for, at=20
most, a very limited time. Even if these facts are considered to =
provide=20
some evidence that Knox assumed the role of father of K.R.K. in an =
ongoing=20
father-daughter relationship, that evidence is far outweighed by =
the=20
evidence of harm to K.R.K. from Knox's being adjudicated her =
father and=20
granted parental rights, and by evidence of the nature of the =
relationship=20
between Knox and K.R.K. No reasonable fact finder could disregard =
the=20
evidence of Knox's abuse of K.R.K. and find that it was in =
K.R.K.'s best=20
interest for Knox and K.R.K. to have a parent-child relationship. =
See=20
City of Keller, 168 S.W.3d at 827; Hausman, 199 =
S.W.3d at 42=20
(citing Shockley, 123 S.W.3d at 652). For the foregoing reasons, we hold that Knox failed to =
establish his=20
equitable estoppel claim as a matter of law and that the trial =
court=20
abused its discretion in holding that Stamper was equitably =
estopped to=20
deny Knox's paternity of K.R.K. See Zeifman, 212 S.W.3d =
at 588;=20
see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d =
238,=20
241-42 (Tex. 1985) (court abuses its discretion when it rules =
without=20
regard to any guiding rules or principles). We sustain both of Stamper's issues. Conclusion We vacate the order of the trial court =
establishing=20
Knox's paternity and render judgment that Knox is adjudicated not =
to be=20
the father of K.R.K. Evelyn V. Keyes Justice Panel consists of Justices Nuchia, Jennings, and =
Keyes. Justice Jennings, concurring.=20
On =
July 27,=20
2006, Stamper moved to transfer the suit from Galveston to the =
Houston=20
Court. The motion was granted on August 21, 2006.=20
2. Section 160.608(a) of the Texas Family =
Code=20
provides: In a=20
proceeding to adjudicate parentage, a court may deny a motion for =
an order=20
for the genetic testing of the mother, the child, and the presumed =
father=20
if the court determines that: (1) the conduct of the mother or the =
presumed father estops that party from denying parentage; and (2) =
it would=20
be inequitable to disprove the father-child relationship between =
the child=20
and the presumed father. Tex. Fam.=20
Code Ann. =A7 160.608(a) (Vernon Supp.=20
=
2007). |