### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00435- CV

L. J., App ellant

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 274 TH JUDICI AL DISTRICT NO. 201 0-1 414, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

T h e T exas Depa

rtment of Fa

mily and Protecti v e Se r

v ic e s ( th e “ D e p a

r tm e n t” ) in it ia te d

a suit aff ecting L arr

y ’s pare ntal rig hts to Sarah. The Depa rtment also asked the district court to 1
order L arr

y to submit to g enetic testing to deter mine if he was Sarah’ s fathe r. After the test was perf ormed, the district court ad m i t ted into evidenc e a g enetic repor t showing that L arr

y was not Sarah’ s fathe r and dismiss ed L arr y from the suit. I n response , L arr y soug ht to intervene in the suit, but the district court denied L arr y ’s reque st. Alterna tively , L arr y asked the district court to sever his dismiss al from the underly ing suit so that he could appea l the district court’s ruling s, and the district
court g rante d L arr

y ’s motion to sever
. I n this appea l, L arr y challeng es various ruling s made by the

The appellant has asked us to ref er to the individuals involved in this case by their initials. 1 B e c a u s e s e v e r a l o f th e in d iv id

u a ls in v o lv e d s h a

r e th e s a me la s t n a me , w e w il l in s te a d u s e p s e u d o ny ms for e ase of

rea ding.district court. We will aff irm the district court’s order s dismiss ing L arr y from the suit and deny ing his request to interve ne.

BACK GR OUND

L eah is the mother of Sarah. Prior to Sarah’ s birth, L eah was romantica lly involved with L arr y , and L eah told L arr

y that he was Sarah’ s fathe r. At the time of Sarah’ s birth, L arr y was in ja il. When Sar ah was approximately four months old, L arr y was rele ased from jail a nd planned
to live with L eah and Sarah as a family

. A few day s afte r he was rele ased, L eah told L arr y that she

was g oing to w ork, but L eah did not come back home . I n fac t, L arr y had no contac t w ith L eah for two and a ha lf y ear s.

After L eah l ef

t , L ar ry and Sarah moved in with his mother, and L arr y beca me involved with and ultimately marrie d Ba rbar a. Whil e L arr

y was living with his mother, Ba rbar a and his mother wer e involved in an alterc ation in front of Sarah, and the Depa rtment was contac ted about
th e in c id e n t. A s a r e s u lt o f th e c o n f li c t, L a r r y , B a r b a r a , a n d Sa r a h a ll mo v e d in w it

h h is g r a n d mo th e r
. Whil e L arr

y was living with his g randmother , L eah contacte d L arr y . After talking with L arr y , L eah ag ree d to sign an acknow ledg ment of pater nity stating that L arr

y was Sarah’ s fathe r and also ag ree d to list L arr y as Sarah’ s fathe r on her birth cer tificate. At some point while they wer e living in L arr

y ’s g randmother ’s house, Ba rbar a and L arr

y wer e involved in a phy sical fig ht, and the Depa rtment was infor

med. After investiga

ti n g th e in c id e n t, th e D e p a

r tm e nt remove d Sarah from L arr y ’s custody

. See Tex. Fam. Code Ann. § 262.001 (West 2008) (allowing Depa rtment to take possession of child).
I n addition, the Depa

rtment filed a suit aff

ecting the pare nt-child rela tionship alleg ing that Sarah’ s
2health and safe ty wer e in dang er and that Sarah’ s continued place ment with L arr y was inconsistent with her welfa

re. See id. §§ 102.003(5) (West Supp. 2011) (authorizing g overnme ntal entity to file suit aff

ecting pare nt-child rela tionship), 105.001(a) (1), (h) (West 2008) (allowing court s to issue emer g ency order s app o i n t i ng g overnme ntal entity as temporar y conser vator of child). The Depa rtment also asked the district court to deter mine whether L arr

y was S ara

h’s father and urg ed the district court to terminate L arr y ’s pare ntal rig hts if he was deeme d to be Sarah’ s fathe r. See id. § 160.502 (West 2008) (empowe ring court to require individuals to submit to g enetic testing)

. The
aff idavit acc ompany ing the Depa rtm en t’s petition explained that during the alterc ation with
Ba rbar a, L arr

y threw her on the bed and plac ed “his hands around her neck.” The aff idavit also rela ted other incidents in which L arr y alleg edly behave d violently towards his g randmother and his history of drug use. I n response to the Department’s requests, t he dis trict court iss ued an order nami n g the Depa rtment as temporar

y sole manag ing conser

vator for Sarah. The district c ourt also order ed
L arr y to underg o g enetic testing to deter mine whether he was Sarah’ s fathe r. L arr y ag ree d to submit
to te s ti n g
. A r o u

n d th e ti me th a

t th e te s t w a s p e r f

o r me d , th e D e p a

r tm e n t b e g a

n a r e u n if ic a ti o n p r o c e s s under which Sarah would be place d in the custody of L eah. Essentially , the Depa rtment deter

mined
that L eah had complied with the require ments that the Depa rtment had set out (e.g ., attending
pare nting c lasses, submitting to psy cholog ical eva luation, and maintaining adequate housing ).

Once the g enetic testing had been perf ormed, the results wer e admitted into evidenc e. The re sults showed that L arr y was not Sarah’ s fathe r. After lear ning the results of t he testing , the Depa rtment and L eah both asked the district cour t to declar e that L arr

y was not Sara

h’s fa ther. I n

a d d it io n , L e a

h a ls o a s k e d th e d is tr ic t c o u r t to r e mo v e L a

r r y f r o m Sa r a h ’ s b ir th c e r ti f ic a te

. I n r e s p o n s e
3to these reque sts, the district court schedule d a hear ing. During the hear ing, L eah also stated that she

was seeking to have L arr

y dismiss ed from the suit aff ecting the pare nt-child rela tionship beca use he
was not Sara

h’s fa ther. After the hearing , the di strict court iss ued an order ad j u dicating that L arr

y was not the fathe r of Sarah and chang ing Sarah’ s birth cer ti fi ca t e acc ording ly

. The district court further found that L eah was under duress or that her signa ture was fra udulently o b t ai n ed when she signe d the ac knowledg ment of pate rnity naming L arr

y as the father. I n light of the district court’s deter mination that L arr

y is not the father , the cour t also dismis sed L arr

y from the suit. Subsequent to being dismiss ed from the suit, L arr y filed a motion to intervene

. I n his motion, L arr

y asked to be appointed as a possessory conser vator for Sarah and, i n t h e al t ernative, asked the district c ourt to sig n an order sever ing his c laims f rom the case so that he may pursue an
appea l. I n response to the motion, the district court schedule d another hear ing. I n this hear ing, the Depa rtment informed the district court that Sarah was living with L eah and that t h e De p ar t m ent in te n d e d to d is mi s s th e s u it , a n d L a r r y a s k e d f o r s o me ty p e o f v is it a

ti o n w it h Sa r a h

. A f te r c o n d u c ti n g the hear ing, the district court denied L arr y ’s reque st to intervene but g rante d L arr y ’s motion to sever
. Shortly afte r the district cour

t made its ruling, L arr

y filed this appea l.

DISCUSSIO N
On appea l, L arr

y raises three issues. Specifica lly , he contends that the district court made the following three err ors: dismiss ing him from the suit, admitting the g enetic repor t showing
that he is not the fathe r of Sarah, an d d eny ing his reque st to intervene

. We will addre ss these
arg uments in the order

raised.

4Larry’s Dismissal
As mentioned above, in his first issue on appeal , L ar ry u rges that the di strict court

err ed by dismiss ing him from the suit. I n m ak i n g t h i s assertion, L arr y contends that he was not provided with proper notice that L eah w as see king to dism iss him from the suit. On t he contrary , L arr y notes that L eah’ s motion only stated that she was reque sting an order amending Sarah’ s birth

cer tificate to r emove L arr

y as the fathe r. Fur

ther, L arr y points out that when the district c ourt sent
out a notice explaining that a hear ing had been schedule d to addre ss L eah’ s reque st, the notice stated
that the purpose of the hear ing was to addre ss L eah’ s “Reque st for Orde r to Amend Birth Certifica te and Request for I ncre ased Unsupervise d Visitation.” Be cause he was alleg edly not provided notice,
L arr y contends that when the district c ourt dismiss ed him f rom the suit in response to a reque st by
L eah during the hearing , he “w as depr ived of his due proce ss rig hts.” I n addition, L arr y contends
that he was entitled to due proce ss beca use L eah signe d an acknow ledg ment of pater nity naming him

as the fathe r and beca

use “a valid acknow ledg ment of pater nity

. . . confe rs on the acknow ledg ed fathe r all rig hts and duties of a pa rent.” See Tex. Fam. Code Ann. § 160.305( a) ( West 2008).
As support for his claims, L arr y primarily relies on Stanley v. Illinois , 405 U.S. 645 (1972). I n that case , the S upreme Court deter mined that a father “was entitl ed to a hearing on his fitness as a pare nt befor e his children wer e taken awa y from him and that, by deny ing him a hear ing

. . . , the State denied [t he fathe r] the equal pro t ec t i o n o f t he laws g uara nteed by the Four

teenth Amendment.” Id. at 649; see also In re T.E.T. , 603 S.W .2d 793, 797-98 (Tex. 1980) (explaining that biologica l fathe r was g iven notice of proce eding s to ter minate his rig hts and was aff orded due

5proce ss require d by Stanley ). Howeve r, unlike the party in Stanley , L arr y is not the fathe r of Sarah and, there fore , does not possess the same ty pe of “cog nizable and substantial” interest. 405 U.S. at 652; see also id. at 650 (explaining that proce dures that due proce ss may require in particula r circ umstance depends on nature of private interest that has been a ffe cted)

. Although L eah signe d

an acknow ledg ment of pater nity , g enetic testing demonstrated that L ar ry was not the fathe r of Sarah befor e he was dismiss ed. See Tex. Fam. Code Ann. § 160.308(a) , (d) (We s t S u p p
. 2 0 11) (allowing acknow ledg ment to be challeng ed when g enetic testing shows that alleg ed fathe r is not biologica l father ).

Moreove r, the issue that was decide d in Stanley is very differ ent from the issue that
L arr y raises. I n Stanley , the Supreme Court was fac ed with deter mining what due proce ss require d befor e children are taken from their fathe rs. 405 U.S. at 648. I n this case , on the other hand, we are asked to addre ss the propriety of a de fenda

nt being dismiss ed fr om a s uit. This case was ini tiated by the Depa rtment initially

ag ainst L arr

y and L eah. A lthough L arr y corr ectly points out t hat L eah

was the individual who first sug g ested that L arr y shou l d b e dismiss ed from the suit beca use
t h e gen et i c t est showed that he was not the fathe r, the Depa rtment later joined L eah’ s reque st

. Specifica lly , during the hear ing, the De p artment arg ued that beca use L arr y was not the fathe r, he should no longe r be a

party to the case

. Provided that a “d ef

endant has not made a claim for aff irmative relief

,” Cook v. Nacogdoche

s Anesthesia Gr o up, L.L.P. , 167 S.W .3d 476, 482 (Tex. App.—Ty ler 2005, no pet.), “[a] plaintiff has an absolute, unqualified rig ht to nonsuit its own act i o n ag ainst all or any of the defe ndants,” In re Br id

ges , 28 S.W .3d 191, 194-95 (Tex. App.—For t Worth 2000, orig

. proce eding );

6see In re Greater Hou s t o n Or t h o paedic Specialists, Inc. , 295 S.W .3d 323, 324 (Tex. 2009) (orig.
proce eding ) (per curia m). A plaintiff may choose to nonsuit a defe ndant by filing a written motion
to dismiss or by making “an oral announce ment of the nons u it in open court,” Cook , 167 S.W .3d

at 482, and the “rig ht to a nonsuit exis ts from the moment a written motion is filed or an oral motion is made,” In re Greater Houston Orthopaedic Specia l i s t s , Inc. , 295 S.W .3d at 324; see also
Gree nberg v. Brookshire , 640 S.W .2d 870, 872 (Tex. 1982) (per curia m) (expressly disapproving of conce pt that nonsuit require s any thing more than filing of motion or making “ora l announce ment in open cour

t”).
At the time o f h i s dismiss al, L arr y had not asser

ted any claims ag ainst any one or made any reque st for any ty pe of aff irmative relief

. See Doe v. Roe , 600 S.W .2d 378, 379 (Tex. Civ.
A p p
. — E a s tl a

n d 1 9 8 0 , w r it r e f

’ d n
. r
. e
. ) ( s ta

ti n g th a t p a r ty “ is o n e b y o r a g a in s t w h o m a s u it is b r o u g h t while all others who may be

. . . aff ecte d wer e ‘per sons interested’ but not parties” ). Consequently , the Depa rtment had the absolute and unqualified rig ht to dismiss L arr y from the suit, including by orally re q u es t ing L arr

y ’s dismiss al during the hear ing called to chang e Sarah’ s birth cer tificate.
Acc ording ly , we cannot agr ee with L arr y ’s sug g estion that the district court’s dismi ssal somehow deprive d him of his due proce ss rig hts. 2

I n his reply bri ef

, L arry arg ues that beca

use the hear ing in which he was adjudicate d as 2 not the fathe r of Sarah was also a perma nency hear ing, his di s m i s s al was improper. Essentially , L arr y insists that nothing in the statutes g ov erning perma nency hear ings authorizes the ty pe of “dismissal, summary adjudication, or summary deter mination” that occur

red in this case
. See, e.g. , Tex. Fam. Code Ann. § 263.306 ( We s t Supp. 2011) (setting out proce dures for perma nency hear ings, including provision for deter mining date of dismiss al for suit). Although nothing in the provisions g overning perma

nency hear ings expressly discusses d i s m i s sing an individual from a suit under these circumstance s, we see not hing in those provisions that leads us to believe tha t a dismissal is prohibited during a hea

ring held in conjunction with a per manenc y hear ing. 7For these re asons, we ove rrule L arr y ’s first issue on appe al. 3

Gene tic Report

As mentioned above , in his second issue on appea l, L arr y contests t he adequac y

of
th e g e n e ti c r e p o r

t th a t th e d is tr ic t c o u

r t a d mi tt e d in to e v id e n c e
. T h e f

a mi ly c o d e s ta

te s th a t “ [a ] r e p o r

t of the results of g enetic testing must be in a rec ord and signe d under penalty of perjury by a desig nee of the testing labora tory .” See Tex. Fa m. Code Ann. § 160.504(a) (West 2008). The repor t admitted into evidence provides in per tinent part as f

ollows:

Conclusion Combined Paternity

I ndex: 0 to 1 P r o b a b i l i t y o f P a t e r n i t y : 0

. 0 0 % ( P r i o r

Probability

= 0.5)

I n his first issue, L arr

y also asser

ts that the di stri ct co u rt ’s dismiss al was reve rsible error 3 beca use dis m i s s al is not an “appr opriate means of deciding the merits of a case ” and then ref ers to various published and unpublished case s. See, e.g. , In re C.M.C. , 192 S.W

. 3 d 866, 869 (Tex. App.—Texarkana 2006, no pet.) (stating that dismiss in g on basis of standing is not decision on merits); Beller v. Fry Roofing, Inc. , No. 04-05-00159- CV, 2005 Tex. App. L EXI S 9790, at *7 (Tex. App.—San Antonio Nov. 23, 2005, no pet.) (mem. op.) (expl ai n i n g t h at trial courts may dismiss suit if plaintiff fails to appea r but may not adjudicate merits of claim); P a t t er s o n v. Herb Easley Motors, Inc. , No. 02-04-00351- CV, 2005 Tex. App. L EXI S 6995, at *13 (Tex. A pp.—For t Worth Aug

. 25, 2005, no pet.) (mem. op.) (conc luding that trial court’s inclusion of mother hubbard clause in its order dismiss ing for want of prosec ution was err or); Lane v. Baxter Healthcare Corp. , 905 S.W .2d 39, 41 (Tex. App.—Houston [1st Dist.] 1995, no writ) (setting out that dismiss al is not proper method for r esolving merits of ca se but c oncluding that case law supports use of motion to d is mi s s w h e n c o u

r t h a s n o ju r is d ic ti o n ) ; A lv a r

a d o v
. M a g ic V a ll e y E le c
. Co

- o

p , I n c
. , 7 8 4 S. W. 2 d 7 2 9 , 733 (Tex. App.—San Antonio 1990, writ denied) (stating that trial court er re d b y including phrase “all other relief is expressly denied” in its order dismiss ing s uit for want of prosec ution); VanZandt v. Holmes , 689 S.W .2d 259, 2 6 1 (T ex
. App.—Waco 1985, no writ) (explaining that if plaintiff rests befor e establishing cause of action, defe nse should file motion for instructed verdic t, not motion to dismiss ). Howeve r, none of the cited case s involves a situation similar to the one in this case , and none of them stand for the proposition that it is improper to dismiss someone from a suit affe cting the par ent child re lationship after de termining that he is not the child’s par ent. 8The alleg ed fathe r is excluded from pater nity

. . . . These results indicate that [L arr y ] is not the biologica l father of the c hild, [ Sarah].
I , the undersig ned Direc tor, upon being duly sworn on oath, do depose and state that I rea d the fore g oing repor t on the analy sis of specimens from t h e ab o v e named individuals, sig ned by my self, and under penalties of perjury it is my belief that the fac ts and results there in are true a nd corr ect.

The repor t also includes the signa ture of an employ ee for the lab that perf ormed t h e test and was signe d and notar ized by

a notar y public.
I n challeng ing the adequa cy of the repor t, L arr y contends that statements expressing “belief ” are insufficient to invoke the penalty of perjury as require d by the family code. I n making this asser tion, L arr y ref ers to case s that have held that an aff idavit was insufficient beca use it

was based on an individual’s be lief, see Burke v. Satterfield , 525 S.W .2d 950, 954-55 (Tex. 1975) (concluding that aff

idavit stating that attorney “had ‘re ad the acc ounting and alleg ations set out there under and same are true and corr ect to the best of his knowledg e’” di d n o t “positively and unqualifiedly repr esent the fac ts as di s cl o s ed i n the acc ounting to be true and within the persona l knowledg e of the aff

iant”); Perez v. State , No. 03-08-00131- CR, 2009 Tex. App. L EXI S 5457, at *6 (Tex. App.—Austin J uly 16, 2009 , no pet.) (mem. op., not desig nated for publication) (finding
aff idavit that asserte d that alleg ations in moti on “ar e true and cor rec t to the best of m y

knowledg e and belief” was insufficient for unsworn inmate decla ration beca

use it did not comply with statutory require ment that unsworn d eclaration be “subscr ibed by the person making the decla ration as
true under penalty of perjury ”); State ex rel

. Driscoll v. Lindsay , 877 S.W .2d 856, 857 (Tex. App.—Houston [1st Dist.] 1994, no writ) (conc luding that aff idavit stating that fac ts “in the petition

wer e true and corr ect ‘to the best of my knowledg e and belief’ ” was insufficient), and to case s
9g ener ally stating that aff idavits based on belief are insufficient, see Ex parte Miller , 604 S.W .2d 324,
326 (Tex. Civ. App.—Dallas 1980, no writ) (concluding that aff idavi t s t ating that something was
true to best of person’ s knowledg e based on “per sonal knowledg e” was sufficie nt but explaining that
aff idavits “sworn to on best knowledge an d b el i ef ” are insufficient); Schultz , 551 S.W .2d at 496 (dete rmining that notice swea ring that fac ts wer e true to best of attorney ’s knowledg e and belief

wa s s u ff icient but g ener ally stating that aff idavits sworn to on belief are insufficient); Industria l State Bank of Houston v. W ylie , 493 S.W .2d 293, 295 (Tex. Civ. App.—B eaumont 1973, no wr it) (conc luding that aff

idavi t co n t aining phrase “true and corr ect to his best knowledg e” was proper but stating that use of “the word ‘b el i ev e’ ” h as been found objectionable by appellate courts and
that af fi d avits are fata lly defe ctive if they contain phrase s such as “‘on information and belief’ , ‘knowl ed ge an d belief’ , ‘ver ily believes’ , ‘g ood rea son to believe’ and ‘believe s to be true’” ). I n light of these case s, L ar ry i n s i s t s that the repor t at issue in this case does not comply with the rele vant re quirements of the family code. 4
For the rea sons that follow, we disag ree with L arr y . As descr ibed ear lier, the family code states that g enetic repor ts must be signe d under penalty of perjury

. See Tex. Fam. Code Ann. § 160.504(a)

. Although L arr y corr ectly points out that case s have held that aff idavits stating, without

more, that something is tru e t o t h e b es t of the aff iant’s knowledg e or belief have been held to be insufficient to subject someone to perjury , see Burke , 525 S.W .2d at 954-55; Perez , 2009 Tex. App.
L EXI S 5457, at *6; Lindsay , 877 S.W .2d at 857, the re p o rt at issue in this case g oes bey ond

t h e defic iencies identified in those case s. I n the repor t, the lab employ ee summarizes t h e t es t i n g

We note that L arr

y raised no othe r cha lleng e to the admission of the re port. 4 10results and states that “under penalties of perjury it is my belief that the fac ts and results there in are

true a nd corr ect.” Although the case involved a criminal matter, the court of criminal appea ls rec ently

was confr onted with deter mining the adequa cy of a statement containing the lang uag e “I

. . . decla re under penalty of perjury that acc ording to my belief the fore g oing information [i s] true and corr ect.” Bahm v. State , 219 S.W .3d 391, 393 (Tex. Crim. App. 20 0 7 ) (“ Bahm II ”). That case invol ved an

unsworn inmate decla

ration. See Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (West Supp. 2011) ( s e tt in g o u t r e q

u ir e me n ts f

o r u n s w o r n in ma te d e c la r a ti o n )

. A s w it

h th e f a mi ly c o d e p r o v is io n a

t is s u e in this case , the law g overning unsworn inmate decla rations require s that the person making the d e c la r a ti o n s u b s c r ib e th a

t “ th e d e c la

r a ti o n is tr u e u n d e r p e n a lt

y o f p e r ju r y . ” I d

. I n it ia ll y , th e a

p p e ll a te court determined that the declara tion was ineffec tive beca use i t included the phrase “ac cording to
my b e li e f , ” B a h m v
. S

ta te , 1 8 4 S. W. 3 d 7 9 2 , 8 0 0 ( T e x. A p p
. — B e a u mo n t 2 0 0 5 ) , r e v ’d , 2 1 9 S. W. 3 d 3 9 1 (Tex. Crim. App. 2007), but the court of criminal appea ls rea soned that the inclusion of the phrase “under penalty of perjury ” “ca rries a g rea ter leg al signific ance ” than the belief lang uag e and should, there fore , be g iven g rea ter weig ht, Bahm II , 219 S.W .3d at 394. I n fac t, the court explained that the only lang uag e that the g overning statutes “ac tually mandates should be included in such decla rations is ‘ u n d e r p e n a lt

y o f p e r ju r y ’ ” a n d th a t if th a t p h r a s e is in c lu d e d , “ th e in s tr u me n t is s u f

f ic ie n tl y q u a li f ie d
to be subject to perjury .” Id. ; cf. Nelson v. Neal , 787 S.W .2d 343, 347 (Tex. 1990) (explaining that
“an aff idavit is insufficient unless the alleg ations there in are direc t and unequivoca l, and perjury can b e assi g ned upon it”). I n other words, the court conclude d that “the inclusion of anoth er p h ra s e, ‘ac cording to my belief,’ which is neither require d nor prohibited by the” g overning statute should not rende r the stateme nt ineffe ctive. Bahm II , 219 S.W .3d at 394.

11We bel i eve that the same considerations that drove the court of criminal appea ls

deter mination in Bahm II apply to this case as well. As with the statute in Bahm II , the family code
states that g enetic repor

ts must be signe d under penalty o f p er j ury
. See Tex. Fam. Code Ann. § 1 6 0

. 5 0 4 ( a )

. I

n o th e r w o r d s , th e p h r a s e “ u n d e r p e n a lt

y o f p e r ju r y ” is th e o n ly la

n g u a g e th a t th e s ta tu te mandates should be included in a g enetic repor t, id. , and we ag ree with the court of criminal appea ls that the inclusion of that phra se imposes signific ant leg al conse quence s, see Bahm II , 219 S.W .3d

at 394. Fur

ther, we b el i ev e that beca use the repor

t contained that clause , the leg al conseque nces attaching from its inclusion should not be disreg arde d simply beca use the repor

t also say s that “it is [t he employ ee’ s] belief that the fac ts and results there in are true and corr ect,” particula rly since that
la n g u a g e is n e it

h e r p r o h ib it e d n o r r e q

u ir e d b y th e f

a mi ly c o d e
. S

e e T e x. F a m. Co d e A nn
. § 1 6 0

. 5 0 4 ( a )

. Moreove r, we cannot conclude that t he inclusion of the phrase “it is my belief” in these circ umstances somehow remove s the repor t from the penalties of perjury

. I f a person chooses
to willfully and falsely swea r t hat h e believe

s that a certain fact ex ists when he knows that it does not, then the individual has committed perjury just a s if he ha d direc tly

sworn that the f

act e x isted

even though he knew that it did not. Hardy v. State , 246 S

. W.3d 290, 296 (Tex. App.—Houston [1 4 th D is t. ] 2 0 0 8 , p e t. r e f

’ d )

. St a te d d if f e r e n tl y , a s ta

te me n t o f b e li e f “ ma

y c o n s ti tu te a f a ls e s ta te me n t when, in fac t,” the decla

rant “holds no such

. . . belief.” Id. ; see De La Paz v. State , 279 S.W .3d 336,
344 (Tex. Crim. App. 2009) (explaining that if person “honestly , though mist akenly , t h o ug ht that his statement was true when he made it,” then he has not committed perjury ). The court of criminal appea ls undertook a simil ar analy sis in an alterna tive basis for its conclusion in Bahm II that the statement was sufficie nt even though it contained t h e p h rase

12“ac cor d i ng to my belief.” 219 S.W .3d at 394 n.6. Essentially , the court noted that the statute

g overning the crime of perjury states that a person commits perjury when he makes a false statement “with intent to dece ive and with knowledg e of the statement’s meaning ,” see Tex. Penal Code Ann. § 37.02 (West 2011); De La Paz , 279 S.W .3d at 344, and rea soned that the meaning of the phrase s “with intent to dece ive” a nd “with knowledg e of the statement’s meaning ” is equivalent to stating
“that it was not ‘ac cording to [ a person’ s] belief

’ that the information he was g iving was ‘true [or]

corr ect,’ ” Bahm II

, 219 S.W .3d at 394 n.6. Acc ording ly , the cour t concluded that the inclusion of the phrase “‘a ccor ding to my belief’

. . . can be viewed as incorporating the lang uag e of the perjury statute, and thus re inforcing the applica tion of that statute to the decla ration in question.” Id.
For all these re asons, we ove rrule L arr y ’s sec ond issue on appea l.

Reque st to Intervene
As mentioned above, afte r th e g enetic repor t showed that L arr

y was not the fathe r of Sarah, L arr

y was dismiss ed from the case , but L arr y moved to intervene in the proce eding

. The family code authorizes trial cou rt s t o gra nt an individual “lea ve to intervene in a pending suit” if the court deter

mines that the person has “had substantial past contac t with the child.” See Tex. Fam. Co d e A n n
. § 1 0 2

. 0 0 4 ( b ) ( We s t 2 0 0 8 )

. I n h is th ir d is s u e , L a

r r y c h a ll e n g e s th e d is tr ic t c o u r t’ s d e c is io n
to not g rant his motion to int erve ne af ter the district c ourt dismissed him as a party to the case

. I n particula r, L arr y insists that the district court abused its discretion by deny ing his reque st to intervene “g iven the undisputed substantial past contac t betwee n [L arr y ] and” Sarah. Moreove r, L arr y points
to the rec ommendation by the attorney ad litem for Sarah who stated that L arr y should be g iven the opportunity

to intervene

.
13We r e v ie w a tr ia l c o u r t’ s d e te r mi n a ti o n r e g a r d in g a n in d iv id u a l’ s s ta n d in g to in

te r v e n e in a suit under the family code for an abuse of discretion. See W hitwort h v. W

hitwort h , 222 S.W .3d 616, 621 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also In re Lumbermens Mut. Cas. Co. , 184 S.W .3d 718, 723 (Tex. 2006) (ex plaini n g gen era l revie w of ruling s striking intervenors). “A trial court abuses its discretion when it acts arbitra rily or unrea sonably , without ref ere nce to g uiding rules or pr inciples.” Iliff v. Iliff , 339 S.W .3d 74, 78 (Tex. 2011). The family code p rovision g ives trial courts the discretion to allow someone to intervene in this ty

pe of case provided that cer tain conditions are met. See Tex. Fa m. Co d e An n. § 102.004(b) (stating that court “may g rant

. . . leave to inter vene) ; see also Tex. Gov’ t Code Ann. § 311.016(5) (West 2005) (explainin g t h at u se of word “may ” in statute “cr eate s discretionar y authority or gra

nts permission or a power ”). As pointed out by L arr y , to intervene, a person must “have had substantial past contac t with the child,” but there must also be “proof

. . . that appointment of a p ar en t as a sole manag ing conser vator or both pare nts as joint manag ing conser vators would signific antly

impair the child’s phy sical health or emotional development.” Tex. Fam. Code Ann. § 102.004(b). The burden of providing sufficie nt proof of these fac tors falls on the party seeking to establish standing , and “[t] o meet this burden, the nonpare nt must offe r evidenc e of s p ec i fi c acts

o r o m i s s i ons of the pare nt that demonstrate that an awa rd of custody to the pare nt would res u l t in ph y s i ca l o r em o t ional harm to the child.” In re C.A.H. , No. 11-10-00040-CV, 2011 Tex. App.
L EXI S 1672, at *6-7 (Tex. App.—Eastland Mar. 3, 201 1 , n o pet.) (mem. op.). I n other words, “[t] here must be evidenc e to support the logic al infere nce that some specific , identifiable behavior or conduc t of the par ent will probably cause that harm.” Id. at *7.

14During the hear ing on L arr y ’s motion to intervene , L arr y descr ibed the rela tionship that he and his family had with Sarah and how they took car e of Sa ra h fo r y ea rs an d also arg ued that he should be allowed to i n t er v en e b ec ause no party filed a motion to strike his motion to intervene

. Howeve r, L arr

y offe red no evidenc e showing that the appointment of L ea h as s ole manag ing

conser vator would impair Sarah’ s phy sical health or emotional d ev el o p m ent. See id. Simi larly , the Depa rt m en t al so prese nted no evidenc e that the appointment of L eah as sole manag ing conser vator would be detrimental to Sarah. To the contrary , during that hear ing and i n other hear i n gs b ef o re the

same court, an employ ee for the De p ar t m ent testified that Sarah had completed all the pare ntal require ments imposed on her by the Depa rtment, that Sarah had been place d in L eah’ s custody , and that the Depa rtment intended to reunify Sarah and L eah. Specifica lly , during one of the in i t ial hear ings, Kirstina Her

rer a testi fied that L eah has “c ompleted just about ever y thing” that the Depa

rtment asked her to do, that L eah’ s random drug tests had “all been neg ative,” that t h e De p ar t ment was allowing
L eah to have unsupervised visits with Sarah, that those visits wer e “g oing fairly well,” and that the Depa rtment planned to reunify Sarah with L eah. I n t h e h ea ri ng reg arding the intervention, Her rer a rela ted that Sara

h was living with L eah a

nd that the Depa

rtment planned on dismissing the c ase. For these rea sons, we cannot conclude that the district court abused its discretion by d e n y in g L a r r y le a v e to in te r v e n e in th e c a s e u

n d e r s e c ti o n 1 0 2

. 0 0 4 ( b ) o f th e f a mi ly c o d e
. S

e e T e x. F a m. 5 Code Ann. § 102.004(b)

.

I n his reply brief, L arr

y arg ues that he also had standing to i nterve ne under subsection 5 102.003(9) of

the fa mily

code. See Tex. Fam. Code Ann. § 102.003(9) (West Supp. 2011). L arr y made simil ar claims in his motion to i nterve ne in which he soug ht to be appointed as a possessory conser vator of Sarah. Howeve r, the family code provision upon which L arr y relies does not perta in to in terve ntions and instead g overns who has standing to initiate a suit aff ecting a pare nt-child r e la ti o n s h ip

. I

n h is a p p e a l, L a r r y o n ly c h a ll e n g e s th e d is tr ic t c o u r t’ s r u li n g o n h is r e q

u e s t to in te r v e n e in the case

. 15As an alterna tive basis for challeng ing the district court’s denial of his intervention,

L arr y contends that the district court abused its discretion by s t riking his petition in intervention beca use no par

ty filed a w ritten motion to st rike be fore the cour t ruled. L arr

y ’s arg ument is ba sed

on rule 60 of the rules of civil proce dure, which sta t es t h at “[a]ny party may intervene by filing a pleading , subject to being stricken by the court for sufficie nt cause on the motion of any party .” See
Tex. R. Civ. P. 60. Although L eah moved to strike L arr y ’s i nterve ntion during the hearing called
to addre ss his intervention, L arr y insists that her reque st was ineffe ctive beca use it was not a written motion to s trike filed be fore the hea ring

. Howeve r, we are not persua ded that rule 60 has any applicability in this case
. The leg islature promulg ated a separ ate p ro v i sion g overning interventions in family law case s that expli citly sets out the circ umstances under which a non-par ent may ask a trial court’s permission to intervene in a suit aff

ecting a pare nt-child rela tionship. Tex. Fam. Code Ann. § 102.004. Moreove r,
t h e l egi slature empower ed trial courts with the discretion to deter mine whether to allow an intervention even when the statutory require ments are met. Id. § 102.004(b). Rule 60, on the other hand, authorizes any one to intervene in a suit unless a party objects. Compare Tex. Fa m. Code Ann. § 102.004, with Tex. R. Civ. P. 60. Acc ording ly , we cannot ag ree with L arr y ’s asser tion that rule 60 imposes an obliga tion on a party opposing an intervention in a suit af fe ct i n g a pare nt-child rela tionship t o file a w ritten motion prior to a hea ring on the interve ntion. 6

We note that the case that L arr y cited as support for his arg ument reg arding rule 60 did not 6 involve a suit aff

ecting a pare nt-child rela tionship. See, e.g. , Guaranty Fed. Sav. Bank v. Horseshoe Oper. Co. , 793 S.W .2d 652, 657 (Tex. 1990) (determining that trial court a bused its discretion by striking plea

in intervention in absenc e of “ a motion to strike”). 16For the rea sons stated above, we ca n n o t co n cl ude that the district court abused its

discretion by

deny ing L arr

y ’s motion to int erve ne, and w e over rule his third issue on appe al.

CONCLUSION Having overr

uled L arr y ’s three issues on appea l, we aff irm the district court’s order s dismiss ing him as a

party and deny ing his re quest to intervene in the case

.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Henson a nd Goodwin
Affir med Filed: Aug ust 1, 2012

17