# Fourth Court of Appeals **San Antonio, Texas**
DISSENTING OPINION
N o. 04

- 22

- 00015

- CV
IN THE INTEREST OF L.P. , a Child From the 407th Judicial District Court , Bexar County, Texas Trial Court No. 2020

- PA

- 00365 Honorable Susan D. Reed , Judge Presiding 

### O PINION 

### D ISSENTING TO 

### D ENIAL OF 

### E N 

### B ANC 

### C ONSIDERATION Dissenting Opinion by: Patricia O. Alvarez, Justice , joined by Luz Elena D. Chapa, Justice Sitting en banc : Rebeca C. Martinez, Chief Jus tice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez , Justice Lori I. Valenzuela , Justice Delivered and Filed: July 20, 2022 In this parental rights termination case, o ur previo us decision in Djeto require d 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 b ecause 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 b anc consideration.Dissenting Opinion 04

- 22

- 00015

- CV

- 2

- B ACKGROUND The facts of this case ar e not re peat ed here because they are not necessary to answer the crucial question: Should th e 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 s ubs ection 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. S ee T EX
. F AM

. C ODE A NN
. § 161.001(b)(1)(D).
S ECTION 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 con vincing 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.
K NOWLEDGE OF P ATERNITY AS A P REREQUISITE FOR G ROUND (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.). Th is court should correct Djeto ’s flawed view that ground (D) requires knowledge of paternity.Dissenting Opinion 04

- 22

- 00015

- CV

- 3

- D JETO IS N OT G OOD L AW How does “knowledge of paternity” affect a ground (D) analysis ? Under Djeto , 1 that means the trial court can no t 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

re quirement 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 dut y to act or refrain from acting in a particular manner ,” primarily with respect to when Djeto’s duty to financially support the child arose. Se e id. ; see also T EX
. F AM

. C ODE A NN
. 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)

.

1 Djeto is the foundation case cited in the Texas Litigation Guide for the proposition that “[w]hen termination of a father’s parental rights is sought under Subsection (D), termination may be based only on conduct occurring after the father became aware of his p aternity of the child.” 23 William V. Dorsaneo III et al., Texas Litigation Guide § 381.02[3][a] (2020). Djeto has been cited by six of the fourteen courts of appeals.Dissenting Opinion 04

- 22

- 00015

- CV

- 4

- But Jim e nez had nothing to do with any knowledge requirement for termination under ground (D). See id. Simply put, Jim e nez 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 enda ngered. See Djeto , 928 S.W.2d at 98

. And Djeto ’s flaw has not gone unnoticed.
C RITICIZING D JETO Two later case s, in their dissents, have criticized Djeto ’s reasoning on ground (D).
In In re S tevenson , 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: “Wi th 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 Stev enson , 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 a ppeals’ 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).Dissenting Opinion 04

- 22

- 00015

- CV

- 5

- I agree wit h 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.
C ASES A DDRESSING K NOWLEDGE OF P ATERNITY 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 S tevenson 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 pro position 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

. I

n 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 doub ts 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 toDissenting Opinion 04

- 22

- 00015

- CV

- 6

- 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 analysi s, statutory construction, or supporting authorities, and its application does not protect children.
S TATUTORY C ONSTRUCTION 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 “Simila rly.” 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 no t 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 th e child to remain in conditions or surroundings which endanger the physical or emotional well

- being of the child.
T EX
. F AM

. C ODE A NN
. § 161.001(b)(1)(D). Surely one “object sought to be attained” by the statute is the protection of children. See
T EX
. G OV ’ T C ODE A NN
. § 311.023 (allowing a court to consider the “object sought to be attained”). By its plain language, subsection 161.001(b)(1)(D) ’s prerequisi te to terminate a parent’s rights is for the parent to knowingly place or knowingly allow the child to remain in dangerous conditions or surroundings; the statute says nothing about the father knowing he is the parent

. See
T EX
. F AM

. C ODE A NN
. § 161.001(b) (1)(D). Thus, i f a person knowingly allows a child to be endangered, and the person turns out to be a parent, the statute’s plain language makes that sufficient for statutory ground (D). Id.Dissenting Opinion 04

- 22

- 00015

- CV

- 7

- P UBLIC P OLICY C ONSIDERATIONS Th e application of such a plain language, non

- Djeto construction is good public policy.
See T EX
. G OV ’ T C ODE A NN
. § 311.023 (allowing a court to consider the “consequences of a particular construction”). For example, if a man has no idea he is the child’s father, and he does not knowingly place the child in danger or knowingly allow the child to remain in danger, his parental rights are not at risk under (D). If a man believes or suspects he could be the father, but he does not knowingly place the child in danger or knowingly all ow the child to remain in danger, his parental rights are also not at risk under (D). But, irrespective of a man’s belief or knowledge of his paternity , if he knowingly places the child in danger or knowingly allow s the child to remain in danger while he i s a waiting formal adjudication of his paternity, his parental rights would be at risk under (D)

— as they should be. This plain language, non

- Djeto construction may prompt the father to do something to protect the child in the interim. Cf. In re Stevenson , 27 S.W.3d at 203 (Rickhoff, J., dissenting). On the other hand, the current Djeto

- based construction

— which allows a potential father who knows a child is being endangered, but who avoid s gaining formal knowledge of paternity to escape review of his misconduct

— undermines the legislature’s object of protecting the child.
Contra T EX
. F AM

. C ODE A NN
. § 161.001(b)(1)(D). This court should not perpetuate Djeto ’s misstep that disregards evidenc e of a father’s misconduct in a ground (D) analysis until he admits paternity, gets court

- ordered DNA test results confirming his paternity, or a court adjudicat es him to be the father

. See T EX
. G OV ’ T C ODE A NN
. § 311.023 (allowing courts to consider a sta tute’s “object sought to be attained” and the “consequences of a particular construction”).Dissenting Opinion 04

- 22

- 00015

- CV

- 8

- C ONCLUSION The statute’s plain language does not require or even suggest Djeto ’s problematic construction. Djeto ’s construction undermines the legislature’s obje ct to protect the child, and it could incentivize fathers to resist DNA testing and otherwise deny knowledge of paternity. These incentivized practices could delay permanency for the child or even allow a child to continue to be endangered while a father resists acquiring knowledge of paternity. The crucial question is this: S hould this court continue to apply Djeto ’s flawed ground (D) view that (1) did not examine the statute’s plain language, (2) did not perform any statutory construction, (3) failed to provide any supporting authorities, (4) other justices have criticized, and (5) immunizes fathers against consideration of any pre

- knowledge

- of

- paternity evidence that they knowingly placed or knowingly allowed their child to be endangered? My answer is “ No!”
Because a majority of the en banc court decide s otherwise, I respectfully dissent to the order denying en banc consideration.
Patricia O. Alvarez, Justice