In re Interest of L.P., 04-22-00015-CV

CourtCourt of Appeals of Texas
Citation649 S.W.3d 862 (Mem)
Docket Number04-22-00015-CV
Parties In the INTEREST OF L.P., a Child
Decision Date20 July 2022

649 S.W.3d 862 (Mem)

In the INTEREST OF L.P., a Child

No. 04-22-00015-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: July 20, 2022


APPELLANT ATTORNEY: Manuel C. Rodriguez Jr., Attorney at Law, 7551 Callaghan Rd., Ste. 200, San Antonio, TX 78229.

APPELLEE ATTORNEY: Allen Lowe II, Texas Dept. of Family & Protective Svcs., 3635 S.E. Military Drive, San Antonio, TX 78223, Scott Roberts, Assistant District Attorney, 101 W. Nueva, 7th floor, San Antonio, TX 78205, Stacy January, Attorney at Law, 650 Golfcrest, Windcrest, TX 78239.

Sitting en banc: Rebeca C. Martinez, Chief Justice, Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Irene Rios, Justice, Beth Watkins, Justice, Liza A. Rodriguez, Justice, Lori I. Valenzuela, Justice

En banc consideration denied.

OPINION DISSENTING TO DENIAL OF EN BANC CONSIDERATION

Dissenting Opinion by: Patricia O. Alvarez, Justice, joined by Luz Elena D. Chapa, Justice

649 S.W.3d 863

In this parental rights termination case, our previous decision in Djeto required that we reverse the trial court's finding on ground (D). See Djeto v. Tex. Dep't of Protective & Regulatory Servs. , 928 S.W.2d 96, 98 (Tex. App.—San Antonio 1996, no writ) (injecting a requirement for knowledge of paternity into subsection 161.001(b)(1)(D)). But because that portion of Djeto pertaining to ground (D) was wrongly decided, and a majority of this court has denied en banc consideration to correct Djeto , I respectfully dissent from the order denying en banc consideration.

BACKGROUND

The facts of this case are not repeated here because they are not necessary to answer the crucial question: Should the part of Djeto that protects a father's parental rights—despite his knowing disregard for his child's safety—be overruled? See id. Djeto is the foundation case for this flawed view of subsection 161.001(b)(1)(D), and overruling Djeto would correct this court's earlier misstep and help safeguard the children the statute was designed to protect. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D).

SECTION 161.001( B )(1)(D)

In conjunction with a best-interest-of-the-child finding, section 161.001 provides that a trial court may terminate a parent's rights to their child "if the court finds by clear and convincing evidence ... that the parent has ... knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Id.

KNOWLEDGE OF PATERNITY AS A PREREQUISITE FOR GROUND (D)

However, under Djeto and its progeny, "knowledge of paternity is a prerequisite to a showing of knowing placement of a child in an endangering environment." In re M.J.M.L. , 31 S.W.3d 347, 351 (Tex. App.—San Antonio 2000, pet. denied) ; accord In re Stevenson , 27 S.W.3d 195, 201 (Tex. App.—San Antonio 2000, no pet.) ; see also In re N.N.M. , No. 04-19-00369-CV, 2020 WL 4808704, at *4 (Tex. App.—San Antonio Aug. 19, 2020, no pet.) (mem. op.). This court should correct Djeto ’s flawed view that ground (D) requires knowledge of paternity.

DJETO IS NOT GOOD LAW

How does "knowledge of paternity" affect a ground (D) analysis? Under Djeto ,1

649 S.W.3d 864

that means the trial court cannot consider evidence of a father's actions "prior to rendition of the order of paternity." Djeto , 928 S.W.2d at 98.

Respectfully, I think this part of Djeto addressing ground (D) is wrong. Without analyzing the statute, citing applicable authority, or otherwise explaining why, Djeto took the knowledge requirement for an enforceable obligation to support the child (ground (F)) and injected it into the knowledge requirement for knowingly endangering a child (ground (D)). See id.

As one reads Djeto , it seems the court was focused on "whether Djeto had a duty to act or refrain from acting in a particular manner," primarily with respect to when Djeto's duty to financially support the child arose. See id. ; see also TEX. FAM. CODE ANN. 161.001(b)(1)(F).

Djeto correctly recited the principle that "[i]n order for an enforceable obligation to exist requiring the support of an illegitimate child , there must be a court order, a judicial admission, or an unequivocal acknowledgement of paternity." Djeto , 928 S.W.2d at 98 (emphasis added). It cites supporting authorities, its logic is straightforward, and it supports sound public policy.

But Djeto did not stop there; it extended the same knowledge requirement to ground (D)—an unrelated ground addressing a completely different concern. Id. In doing so, Djeto did not cite Jimenez in its ground (D) analysis, but it nevertheless seems to have relied on Jimenez —an El Paso case it relied on for its ground (F) analysis. See Jimenez ex rel. Little v. Garza , 787 S.W.2d 601, 603 (Tex. App.—El Paso 1990, no writ).

But Jimenez had nothing to do with any knowledge requirement for termination under ground (D). See id. Simply put, Jimenez does not support Djeto ’s injection of ground (F) knowledge requirements into ground (D). See id.

Further, Djeto does not examine the statute's plain language or otherwise perform any statutory construction to show how the statute's plain language prerequisite—that the parent have "knowingly placed or knowingly allowed" the child to be endangered—can be extended to require that a father must know with court-ordered certainty that he is the child's parent before he has any accountability for knowingly allowing a child to be endangered. See Djeto , 928 S.W.2d at 98.

And Djeto ’s flaw has not gone unnoticed.

CRITICIZING DJETO

...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT