Further, Brown challenges the trial court's order of genetic testing.  A proceeding to adjudicate parentage is
governed by the Uniform Parentage Act.  See Tex. Fam. Code Ann. §§ 160.001-160.707 (Vernon 2008).  
Section 160.601 specifically authorizes the DFPS to bring suit to adjudicate the parentage of a child.  Tex.
Fam. Code Ann. § 160.601.  Once genetic testing is conducted and the results released for use in a
proceeding to determine parentage, any resulting harm cannot be undone.  In re Attorney Gen. of Tex., 272
S.W.3d 773, 777 (Tex. App.- Dallas 2008, orig. proc.) (holding there is no adequate remedy at law for the
harm respecting erroneously ordered genetic testing, and mandamus relief is appropriate).  Therefore, once
Brown submitted to genetic testing, his complaint that the  order for testing was erroneous became moot.  
Brown's first issue is overruled.
In Interest of XCB (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Anderson)
termination of parental rights, nonbiological father figure, common law marriage to mother, best interest
factors, failure to preserve constitutional arguments for appeal)
AFFIRMED: Opinion by Justice Anderson    
Before Justices Anderson, Guzman and Boyce   
14-08-00851-CV  In the Interest of X.C.B., AKA X.C, I.C.B., AKA I.C., S. B.C., and J.W.C AKA J. W. W.
Appeal from 315th District Court of Harris County

Brown primarily argues that as the sole surviving parent he is entitled to sole managing conservatorship of the
children.  Brown relies on the parental presumption found in section 153.131 of the Texas Family Code, which
provides that unless the court finds that appointment of the parent would not be in the best interest of the child
because the appointment would significantly impair the child's physical health or emotional development, a
parent shall be appointed sole managing conservator.  Tex. Fam. Code Ann. § 153.131.  Brown admits that
genetic testing proved he is not the biological father of the children, but argues, by virtue of his common-law
marriage to the children's mother, that  he should be considered their parent.

Brown first argues that he considered himself to be the common-law husband of the children's mother, which
entitles him to a presumption of paternity under section 160.204 of the Family Code.  Section 160.204(1)
provides that a man is presumed to be the father of a child if he is married to the mother of the child and the
child is born during the marriage.  However, the presumption of paternity can be rebutted by genetic testing
excluding the husband as the father of the children.  Tex. Fam. Code Ann. § 160.631.  Because the genetic
tests excluded Brown as the father, and Brown has failed to produce other genetic testing showing him to be
the father, the presumption under section 160.204 has been rebutted.  Therefore, Brown does not benefit
from the parental presumption.