In re Interest of L.P.
| Decision Date | 20 July 2022 |
| Docket Number | 04-22-00015-CV |
| Citation | 649 S.W.3d 862 (Mem) |
| Parties | In the INTEREST OF L.P., a Child |
| Court | Texas Court of Appeals |
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.
En banc consideration denied.
OPINION DISSENTING TO DENIAL OF EN BANC CONSIDERATION
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.
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.
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.
How does "knowledge of paternity" affect a ground (D) analysis? Under Djeto ,1 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.
Two later cases, in their dissents, have criticized Djeto ’s reasoning on ground (D).
In In re Stevenson , the majority excluded evidence under (D) until the father "acquired that knowledge [of paternity] by resolving his doubts." In re Stevenson , 27 S.W.3d 195, 203 (Tex. App.—San Antonio 2000, no pet.). The dissent justifiably criticized that standard: "With Djeto and this opinion, we allow a father to avoid responsibility by merely saying he was not sure the child was his when termination is sought under section 161.001(1)(D) of the Texas Family Code." Id. (Rickhoff, J., dissenting). Other justices also questioned Djeto ’s ground (D) analysis.
In In re Interest of S. , Justice Owen, joined by then-Justice Hecht, dissented to the denial of a petition for review. The dissent rehearsed the facts in In re Stevenson , which relied on Djeto ’s ground (D) analysis, and then made this statement:
Given the significance of the court of appeals’ decision for [the child in the Stevenson case] and other children in circumstances similar to his, and because the court of appeals’ interpretation of section 161.001(1)(D) is debatable , I would grant the Department's petition for review and decide this case on its merits.
In re Interest of S. , 52 S.W.3d 735, 737 (Tex. 2001) (Owen, J., dissenting) (emphasis added).
I agree with these dissents that Djeto ’s ground (D) analysis is flawed. Its erroneous view produces at least two problems: (1) it creates a dubious "knowledge of paternity" test, and (2) until the father's paternity is formally adjudicated, it prevents a ground (D) analysis from considering any evidence that a father knowingly allowed a child to be endangered.
The first of Djeto ’s ground (D) analysis problems is its troubling test: Under the statute, what evidence is required to establish knowledge of paternity? The following cases address the evidence required to show knowledge of paternity.
Djeto requires "a court order, a judicial admission, or an unequivocal acknowledgement of paternity." Djeto , 928 S.W.2d at 98.
In re Stevenson requires a father "to have knowledge" that the child is his, and he can "acquire[ ] that knowledge by resolving his doubts" about his paternity. In re Stevenson , 27 S.W.3d at 202–03.
In re M.J.M.L. cites Djeto and In re Stevenson for the proposition that "knowledge of paternity is a prerequisite to a showing of knowing placement of a child in an endangering environment," but In re M.J.M.L. does not otherwise explain what constitutes knowledge of paternity. In re M.J.M.L. , 31 S.W.3d at 351.
In re N.N.M. cites In re M.J.M.L. and two cases that rely on In re Stevenson , but In re N.N.M. does not address what evidence constitutes knowledge of paternity. In re N.N.M. , 2020 WL 4808704, at *4.
Thus, the test is whether the father resolved his doubts about his paternity, and absent a judicial adjudication, the evidence will be the father's potentially self-serving testimony. As Justice Rickhoff noted, until there is a judicial adjudication of paternity, "we allow a father to avoid responsibility by merely saying he was not sure the child was his when termination is sought under section 161.001 [(b)](1)(D)." In re Stevenson , 27 S.W.3d at 203 (Rickhoff, J., dissenting).
Djeto ’s knowledge of paternity test was created without any plain language analysis, statutory construction, or supporting authorities, and its application does not protect children.
Djeto ’s ground (D) analysis does not (1) examine the statute's plain language, (2) perform any statutory construction, or (3) cite any supporting authorities. Its one-word justification for injecting ground (F) knowledge requirements into ground (D) is "Similarly." It states: "Similarly, responsibility for [the child's] physical or mental well-being cannot be ascribed to [the father] prior to rendition of the order of paternity." Djeto , 928 S.W.2d at 98.
But section 161.001(b)(1)(D) ’s plain language does not expressly require that the father know he is the child's parent.
The court may order termination of the parent-child relationship 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.
TEX. FAM. CODE ANN. § 161.001(b)(1)(D).
Surely one "object sought to be attained" by the statute is the protection of children. See TEX....
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