*1 adjudged guilty defendant “has been of the burglary building.”
offense of of a More-
over, reviewing judgment, we find paragraph judgment
that the first appellant guilty
states that is not charged indictment,
offense while
the second paragraph states that he “is
guilty of burglary the offense of of a mo-
tor vehicle.”
However, the statement of facts contains Trevino, following: “Jose the court you guilty
finds of burglary of an automo- charged
bile as in the indictment.” Article
44.24(b)of the Texas Code of Criminal Pro- (Vernon 1979)
cedure authorizes court judgment,
to reform and correct a as the may require.
law and nature of the case judgment
Because the and the sentence
reflect guilty was found charged indictment,
offense judg-
ment is herewith reformed and the errone-
ous recitations in the are here- State,
with deleted. See Milczanowski v.
The judgment of the trial court is af-
firmed.
In the Interest of UNNAMED
BABY McLEAN.
No. 2-84-141-CV. Appeals Texas,
Court of
Fort Worth.
Sept.
managing conservatorship of Baby Mc- Lean, supported by and was an affidavit mother, by executed stating the natural her placed desire that the child Child ap- Unit Welfare and her that the pellant is not a person fit to care for the Baby repre- child. Unnamed McLean was attorney sented ad litem. a After merits, trial to the court the trial legitimation court denied appointed and managing Child Welfare conservator of the child.
We affirm. Gillen, Larry Crampton, Crampton A. & Code, Family Under the Texas a absent Holly Estrada Crampton, and Wichita marriage relationship between the father Falls, appellant. child, mother and a father is not Rodriguez Anderson & and David K. “parent” unless force of TEX.FAM. Phillips, Falls, Wichita for Laura Lee Mc- (Vernon ANN. and CODE secs. 12.02 13.01 Lean. 1975), applicable neither of which is in the However, instant case. TEX.FAM.CODE Baer, County Atty. Jeanmarie Asst. Falls, (Vernon sec. Supp.1985) ANN. 13.21 County Wichita af- Family Wichita biological Court Services. fords the the opportunity legitimate to make his child and to become Cannedy Marty Merkle Cannedy, & and “parent” rights with all the and duties Falls, Wichita ad litem for the Child. inuring legitimate parents. to all See TEX. (Vernon FAM.CODE ANN. sec. 13.09 Supp.1985).
OPINION provides pertinent 13.21 part: Section (b) The enter court shall a decree des- ASHWORTH, Justice. legitimate ignating the child as the Wise, Billy appellant, Dean appeals from parent of its father and father as judgment denying petition for volun- child if the court finds that: tary legitimation managing and conserva- (1) biological child, parent-child relationship torship subject of his be- Original this petitioners prospec- original suit. tween the its child and mother adoptive parents, tive Charles and Con- has not been terminated decree of Nartker, brought stance suit to terminate court; parent-сhild relationship as to both Lau- (2) paternity the statement of McLean, ra Lee the natural mother of the provided chapter, executed as child, appellant, biological father of true; and the facts stated therein are Appellant filed a cross action for managing conservatorship managing the mother con- child, and the took a Nartkers non- servator, any, if has consented to the responded suit. Laura Lee McLean with a decree. general cross-petition, praying denial (c) requirement The of consent of the father not established petition- she is mother is satisfied if legitimate as the father of the child and entry If the the decree is in the er. conservatorship that no orders be made. may interest of the the court best County The Child Unit of Wichita Welfare legitimation of the child in Family seeking Court Services intervened consent to the lieu of the consent of the mothеr or Billy ization of the child as to Dean [sic] managing conservator. Wise. Billy receiving Dean Wise is
Id. 100% disability from the United States Marine bar, (b)(1) In the case at subsections Corp for a mental condition which [sic] foregoing statute were satisfied. diagnosed paranoid has been schizo- relationship mother-child had not been *3 phrenia, chronic. terminated and paternity a statement of Billy 9. Dean Wise has an unstable was executed biological father. employment history. However, the natural mother did not con- (b)(3); therefore, sent under subsection 10. It is the desire of the mother of sought McLean, the trial court’s Laura that the child pursuant (c). consent placed subsection After adoptive in an home. It hearing evidence, the trial court with- opinion Laura McLean’s that such a held its consent on the basis that it was in placement would be the child’s best deny “best interest of the child” to interest. petition legitimation. 11. It is the dеsire of the Child Wel- Unit, fare County Family Wichita Court The trial court following made the find- Services, temporary managing conserva- ings of fact and conclusions of law: tor, placed adop- that the child be in an tive home. It is the of the tem- FINDINGS OF FACT porary managing conservator that such subject suit, 1. The child the of this placement would be in the child’s best Baby McLean, male, Unnamed was born interest. April on 1983. 12. adoptive place- There are suitable Billy 2. Dean Wise executed a state- ments subject available for the child the paternity ment of April 1983. of this suit. mother, 3. McLean, The child’s Laura entry requested 13. The of the decree has never legitimization consented to the legitimization is not in the best [sic] Billy the child as to Dean Wise. [sic] interest of subject the child the of this mother, 4. The McLean, child’s Laura suit. has never executed an affidavit of relin- quishment parental rights as to the CONCLUSIONS OF LAW child the subject of par- this suit. The 1. The ent-child best interеsts of the child the relationship between the child subject by denying of this suit are served and Laura McLean has never been termi- legitimization Billy of the child as to nated any decree in [sic] court. Dean Wise. mother, 5. McLean, The child’s Laura requested legitimiza- 2. The decree of
executed an requesting affidavit tion is denied. Child Welfare Unit of County [sic] Wichita Family Court Services temporary take following The trial court made the addition- custody of the child subject of this findings: al suit. Petitioner, Billy 1. I find that Supervisor 6. The of the Child Wel- Wise, provided Dean has for the emotion- Unit, fare County Wichita Family Court physical al and needs of his children. I Services, was named temporary manag- specifically find that has the Petitioner ing subject conservator child the abused, mistreated, neglected his April of this suit on 1983. provided proper minor children and has Supervisor
7. The of the Child parental guidance Wel- to them. I find that Unit, County Family fare Wichita engaged family he has recreational Services, temporary managing activities, community youth conser- activities vator, has legitim- children, never consented to the with his has taken an interest in provided him,
their school legitimated activities has child be as to the biologi- love, care, food, proper discipline, cal Having burden, father. appel- met this shelter, clothing, physical and other lant contends that he is legitima- entitled to require. needs that his 13.21(c) children tion under sec. Family the Texas essence, appellant Code. In challenging I find that the Petitioner has sufficiency to support evidence parental shown I favorable abilities. trial court’s specifically “best find raised his chil- interest of the child” by denying is served through adolescence, dren from infancy petition legitimation. providing proper guidance, discipline, en- couragement and love. find 13.21(c) Family Section Code engaged sports children and other places party the burden on seeking activities, average school to above legitimation. There is presumption no grades, average good and exhibited citi- inis the child’s best interest zenships. *4 party seeking legitimize the the
3. I find that the Petitioner desires to child by preponderance must establish a managing have conservatorship of legitimation evidence that is in the best subject minor I this suit. interest child when consent of the specifically 13.21(c). find court required that the Petitioner de- under sec. C_ sires take D_ F_, the child into his home and 589 S.W.2d provide (Tex.Civ.App. 1979, writ). for his needs and welfare. no — Amarillo Further, interest, is the child’s best find marriage 4. I that father, interest currently specifi- Petitioner is stable. by legitimation. must be served See sec. cally find that the Petitioner has been 13.21(c). married his wife years. for seventeen I find that marital developed difficulties The evidence adduced at trial reflects during February 1982 and continued to illicit, that the рroduct of an September 1982. I find that Petitioner appellant affair extramarital between and and his wife their reconciled differences appellee, Appellant, Laura McLean. a 34- September in togeth- 1982 and have lived man, year-old wife, has been to his married er as husband and wife since that date Carolyn, years for seventeen and without serious marital difficulties. Jeff, teenage boys 17-year-old three 15- — I find pro- year-old Kerry that the Petitioner has 14-year-old Jerry. and for, in past, vided can They and continue in a four live bedroom modular home for, future, provide in Kickapoo. problems the financial on Lake Marital de- his specifically veloped appellant needs of children. I find between and his wife in petitioner approximate- receives early resulting appellant’s having in ly per Laura, disability carhop month in $1400.00 from affair at a local with Administration, the Veteran’s and affair February, earns drive-in. The lasted from approximately 11, 1982, in per September excess of appel- $600.00 until when month from employ- various forms of lant and his wife resolved their differences During ment. and affair reconciled. his with Laura, appellant moved in and lived with error, point appellant, his first bio- first, separate Laura on two occasions— father, logical contends that the trial court May again July a week in and from 31st granting abused it discretion in not his 11th, September he reconciled until petition managing and con- affair, During with Laura on his wife. servatorship of the minor child because the appellant occasions that several earlier told findings court’s do not establish that it is in developed pregnant, she was but it she was to deny legiti- the best of the child not. Appellant argues mation. that he met his proof appellant that it After returned to wife proving burden of would be appellant’s September, telephoned child that Laura the best interest of the wife, Morris, Carolyn, bring psychologist, Dr. and threatened to Leon clinical Carolyn paternity against appellant. suit appellant that he testified examined Au- call, appellant appel- told about Laura’s but gust September and of 1983 and inter- lant said that he did not Laura believe that viewed wife three sons. and pregnant. Nothing was heard more was Dr. testified appellant Morris has suf- 4, 1983, April from Laura. appellant On permanent damage fered some brain and is private was contacted detective who suffering psychological still from some given informed him Laura had birth injury. as a result of trauma his combat baby him to to a and asked come down appellant Dr. Morris noted that suffered a attorney’s sign local papers. office to some very period recuperating difficult while Both appellant Carolyn were shocked. hеaling severely probably They attorney’s went to the office and af- emotionally disturbed for awhile immedi- reading papers, sign. ter refused to however, ately injury; appellant after his After discussing the situation improved point has he func- where sons, they to seek custody decided adequately tions and will continue to recu- Appellant testified that two within perate psychologically. Dr. Morris noted birth, days of the arrangements made appellant’s military records indicate pay and, hospital bill at the time that when was re-evaluated trial, paid had the balance about down to Corps January, 1981, Marine $2,000. (The original amount of bill is given disability, psychological no test- 100% record.) not reflected in the ing psychiatric testing nor was conducted. Appellant high testified *5 quit that he Apparently, the was re-evaluation based on grade year school in his 10th and entered appellant’s history medical some and obser- the Marine Corps. He served in Ma- resulting diagnosis vation in a of schizo- rines from May October 1966 to phrenia, type, paranoid chronic. Dr. Mor- 1970, when he was released physical on a disagrees although ris with the diagnosis disability discharge. While serving in Viet- agree appellant probably he did that has nam, appellant received a head injury paranoid past possible been in the it is and pit he fell pungi point into a while walking might Dr. Morris future. patrol. on He a suffered concussion and appellant’s stated that unstable work was hospital treated at a field later and record related to his condition. was mental treated Hospital at Wilford Hall in San placed stigma When asked about the on an Antonio. injury, As a result of his head illegimate causing child society prob- appellant go was to unable walk and had to lems for the Dr. Morris stated that it through physical extensive therapy and upon depended problem how was han- could not people. be around crowds of He family. ap- dled noted within He suffered and problems mental emotional pellant raising his and wife are two sons being get which resulted in his unable stepson and one and that he found no dif- along supervisors, with his experiencing sons ference between natural and the memory lapses black-outs, exhibiting and (When married, stepson. appellant she and going violent behavior and AWOL several son.) Carolyn illegitimate had an Dr. Mor- and, ultimately, times resulted in receiv- his that in ris stated his his based ing a physical disability discharge. For appellant examination and interviews years discharge May, three his after sons, appellant’s appel- wife and three 1970, appellant his continued treatment for emotionally mentally well-quali- lant is and Hospital mental in the disorder Veteran’s fied to a son. In on cross-ex- raise answer City outpatient on an basis. Oklahoma appellant’s as parenting amination abili- 1981, appellant was and re-evaluated ty Dr. Morris stated: given disability. Appellant suf- still 100% things A lot he does are close to the nightmares fers from and a dislike very boy’s He is in his any crowds. He not medi- ideal. involved has been sports cation and activities. He for some time. education [sic] participates things. a lot in He is these child and that his parenting ability will very supportive very helpful. and He not be affected fact that discipline, affair, (2) believes in far is as as can the result an extramarital understand, appellant has diagnosed he is firm and consistent. been as schiz- ophrenic and military compensa- receives agreed Dr. Morris on cross-examination tion, (3) appellant many has worked dif- appellant that would not be harmful jobs, appellant ferent or has been ar- every year to be examined first few rested, though not convicted. years to though ap- monitor his condition Appellant’s three parently they the doctor did feel such sons testified that not necessary. happened, understand what diagnosed appellant Dr. Morris and do not con- did, forgiv- done their father suffering organic syn- from brain what but have having en him and look paranoia drome and mild a result of forward to their baby in injury. father’s opinion appel- boys head Dr. house. All three Morris’s Holliday High is attend mentally emotionally they lant School where able to actively participate provide loving care for a athletics and other care extracurricular activities such as the Rodeo Appellant’s wife, Carolyn, testified that Club and Future Farmers of America. husband, loving father and good grades aspires Each maintains prone drinking. violence or excessive go college. Each of boys testified attentive, As a father he but strict. He disciplined father them re- partiсipates in boys’ activities such as privileges stricting such as use of tele- baseball, scouts, them and teaches how to phone by grounding they them and that things and cars and build work on lawn seen temper had never their father lose his family mowers. The knit is close and en- anyone. boys and hit are aware gages numerous recreational activities problems their father’s medical but have camping, golfing, such as bowling, problem. not found such to It does fishing. Carolyn testified that not bother them that their has held past problems mental and emotional many jobs prob- nor do see such as ability properly not affected his raise “jack- lem. Jeff described his father as support family. *6 boys of-all-trades.” The testified that both Carolyn’s nursing supervisor at the hos- parents responsibility their have assumed Watson, husband, pital, Michelle her and raising on a for their 50-50 basis. The Watson, Sergeant a Garrí Master in the boys why all aware of were in they wеre Force, United States Air testified both that boy Each expressed court. excitment they have appellant, Carolyn known and having baby in about their home. years. their three sons about four The Taylor, Gerald W. Assistant At- District children, have an eight-year- Watsons two in torney, regard testified to the indictment son four-year-old daughter. old and a appellant years some four earlier on a participate Watsons in social and recrea- charge check fraudulent and that appellant tional activities with and his fami- charge been of trial day had dismissed the two or ly They three times a de- month. resti- payment balance due on appellant out-going, scribed as likeable and tution. good with children. The Watsons’ children point appellant his case. At this rested especially appellant are fond of and call him “Uncle Bill.” Neither has ever seen ap- testified told Laura McLean that shе malicious, appellant exhibit destructive or mid-September thought pellant in that she appellant behavior. violent Both describe pregnant she was and he told her that that father, a loving. as devoted strict but a doc- everything take care of if he would They both appellant’s describe pregnant. three sons Laura tor confirmed she was courteous, doctor, got and a well-mannered well-be- that she saw the testified pregnant haved. Both him that she and testified that in letter from was appellant’s ad- appellant parent raising parents’ is a fit letter to capable mailed the wife, good father, appellant dress. called She Caro- that was a attentive lyn, She paternity and threatened a suit. in Wayne and involved his sons’1activities. notify appellant made no efforts more he appel- Roach testified that has known pregnancy. her she She stated appellant years. lant for about ten He and abortion, gotten already but she was together and fished some were involved pregnant weeks and was advised it would League together. Additionally, Little he dangerous at that late date. Laura appellant got and involved in a business appellant admitted that she told earlier venture which to read failed. When asked pregnant March was that she and it turned portion study he social out that she was not. she She said that allegedly walking appellant accused off having problems medical then. Laura a construction site of ma- with worth $400 testified even appellant that at that time terial, say Roach that he not stated did willingness accept indicated re- his Further, appellant that. he testified that sponsibility even happy seemed about worker, good he that has not known of possibility of baby. trouble, appellant being in that he has nev- appellant Laura testified that ex- drank appellant er drink excessively known nor cessively temper. and had a violent She drunk, get appellant that he has never seen stated that on one in late August, occasion temper, although lose him he has seen returning by Flags, car from Six mad, appel- and that never he has known appellant angry became her son and lie, although exaggerate. lant he does began driving the crazy. car fast and On appellant boys, He never saw mistreat his occasion, another appellant get tried to her although appellant he felt was too strict. alcoholic stop drinking by brother to shov- baby He not did recommend that the ing him against Finally, a wall. about placed appellant appel- with because he felt three days appellant before moved out lant take should care the wife and three September, got coming he mad at her for boys he has now. homе late jar against and threw a mustard Crook, also the so- David interviewed wall, the kitchen knocked two holes in the worker, cial testified he had owned go bedroom door would not let her appellant land the lake near about nine near her children. She admitted that years ago, appellant but has not seen over slept together also, night that she past years. eight half dozen times in the appellant never asked to move out. She appellant having “gift He describes during August admitted that early late September, gab”. study When re- shown social took care of her chil- port, dren said he did night. agree while she worked at She stat- ed that appellant reports regard made her him have children call what it said him “Yes, “Daddy” and sir” appellant. report answer Crook said that the *7 “No, sir”, and that her children did not like contained incorrect statements. He did not appellant. appellant She tеstified that lied say appellant pay not to that did attention throughout to her relationship why appellant his and that had an bills was that he is not fit father. telephone say not unlisted number. He did you everything appellant that can’t believe testified, After peo- Laura several of the says. say appellant He did not that is not ple by who had been interviewed the social because, good his kids as he in to stated testify. worker called to were We note court, “I know damn well that he is.” He case, interviewees, that in each the when say appellant did his kids not that treated copy the study confronted with social say dogs. appellant like He did de- report, testified that the comments attrib- strict He testified that manded obedience. study uted to them the social were incor- did appellant good boys was his not Apparently, rect. the interviews were con- them, did not personally but he by telephone in- mistreat ducted and none those appellant used to seen like the tone of voice terviewed had the social worker’s write-up discipline boys. of his interview. Each testified the
486
Campbell,
attorney
1978,
K,
rep-
writ.);
Dan
who was
no
In Interest
resenting
(Tex.),
denied,
adoption
in the
Nartkers
S.W.2d
cert.
ease,
appellant
testified that
and his wife U.S.
97 S.Ct.
(3) appellant’s transgressions 13.21(c). However, of the law sec. the statute confers past years;
over the the trial discretion on court to deter- grant mine whether to or withhold its con- (4) appellant’s inability to hold job provides sent. The statute that “[i]f time; any long period of entry is in of the decree the best interest (5) appellant’s history; medical may the court consent to (6) appellant’s in paying weakness his child in con- lieu of the time; expenses bills and ours.) (Emphasis sent of the mother ...” disrespect appellant shows for his given Clearly, thе trial court has been relationship wife and children determining broad discretion whether with another woman. interest of the best the child legitimation. consent to As stated It is well settled that a “best inter discussing trial Texas standard, context, est of the child” in this determining court’s broad discretion confers discretion on the trial court to de *8 best child: interest of a termine the fitness of one who would as parental responsibility, opportunity and He has and sume the deci an observe only of personalities will be set if an abuse of evaluate the the contend- sion aside C_ claimants, weigh credibility of ing In the discretion is Interest shown. of D_ F_, physical, at 546. to assess the testimony, 589 S.W.2d See Travis Vance, mental, the v. moral and emotional needs of County 566 Unit Welfare (Tex.Civ.App. Austin, S.W.2d 115 —
487 Herrera, T.E.T., Herrera v. 409 S.W.2d 399 In Interest 603 S.W.2d of (Tex.1966). Court: As stated the Therefore, trial the court’s The narrow issue before is whether us determining whether the interest of best gender-based the distinction of the Texas by consenting the child be served establishing statutory scheme for status legitimation only be should reversed parent as a substantially is related the appears the it from record as a whole that important objective promoting state of the court the entrusted to abused discretion the of best interest children born out of light him. See id. In of the discre- broad wedlock related to substantially and tion conferred the sec. trial court the of objective. achievement this We 13.21(c), find we cannot that the trial court hold that is so related. We believe legitima- abused its discretion in denying light “special that in the difficul- Appellant’s ground tion. first is overruled. ties” a mother faces at birth and the points error, appellant In two of during infancy illegitimate the of an child challenges constitutionality of sec. 13.- slight legislative justi- distinction is 21 of Family ground the Texas Code fied. [Cite omitted.] process equal that it the due violates and of protection rights biological the unwed by imposing on him burden Furthermore, legit- the State has a legitimation showing that is in the “best protecting imate interest in the children extremely interest” of an difficult premarital who are born as a result of burden which the mother of child is activity. mother, by sexual virtue of required Appellant to meet. concedes that her pregnancy, automatically respon- his contentions have been addressed and sible for physical the child. She has the rejected by the Texas Court in In responsibilities burdens preg- and T.E.T., (Tex.1980),
Interest
S.W.2d
nancy. She can choose to
the child
abort
denied,
rt.
U.S.
S.Ct.
ce
1732,
carry
may
she
it full term. The State
489
“compelling
places
providing
the burden
interest
in
for
reasons”
State’s
well-being
illegitimate
of
children is
proof
persuasion
party-
of
on the
important
question
one.
not
We do
defending the classification.
best
interests of such children
at 206.
Id.
may
adoption
require
often
their
into
light
In
of
fact that
Su
the Texas
them
give
new families who will
the sta-
preme
gender-
Court has found that
normal,
bility
two-parent
home.
statutory
distinction in the Texas
based
Moreover, adoption
stig-
will remove
substantially
in regard
scheme
sec. 13.21
to
illegitimate
ma under which
children suf-
legitimate
relates to the
achievement
unquestioned right
fer.
But
who
protecting
State interest
children
by
State
further
ends
these desirable
wedlock,
born
are
out of
In Interest
legislation not
itself sufficient
T.E.T.,
797;
of K,
justify
gender-based
603 S.W.2d at
In Interest
distinction of
Rather,
171, and
sec. 111.
under the relevant
535 S.W.2d at
because the addi
applying
Equal
cases
Protection
complained
tional
relate
statutes now
of all
Clause must be
shown that
distinc-
scheme,
statutory
the same
we overrule
reasonably
tion is structured
to further
appellant’s remaining points
error, and
repeated
these
As
ends.
we
Reed v.
gender-based
jus
we find the
distinction is
Reed,
[71],
76,
[251],
404 U.S.
at
92 S.Ct.
compelling
tified
State interest
(1971)],
at 254
L.Ed.2d 225
such a
[30
protecting children born out of wedlock.
statutory ‘classification
be reason-
“must
reason,
foregoing
For the
we overrule
able,
arbitrary,
not
and must rest
appellant’s thirty (30) supplemental points
ground
having
some
of difference
a fair
of error.
object
and substantial relation to the
legislation,
persons
so that all
sim-
Judgment affirmed.
ilarly circumstances
shall be treated
Royster
Virginia,
alike.”
Guаno
v.Co.
FENDER, C.J.,
BURDOCK,
HOP-
412, 415,
560, 561,
64
U.S.
S.Ct.
[40
KINS,
HUGHES, J.,
(Sit-
JJ. and
Retired
(1920).’
L.Ed. 989]
ting by Assignment), join.
We find that the
in sec. Ill
distinction
unmarried
between
mothers
unmar-
HILL, J., dissents.
fathers,
case,
ried
as illustrated
HILL, Justice, dissenting.
does
bear a
relation
not
substantial
providing adoptive
interest in
State’s
dissent,
I respectfully
adopting the rea
illegitimate
homes
its
children.
It
soning
dissenting opinion
that, given
may
opportunity,
some
T.E.T.,
(Tex.1980).
lished a substantial
relationship
only
potential
relationship,
father
had
paternity,
child and has admitted his
in
the child
was an
whereas
Caban
older
State should
no
in
difficulty
have
iden-
child with
had an
tifying the
estab-
father even of children born
Thus,
showing
T.E.T.,
out of wedlock.
no
relationship.
has
lished
In Interest of
been made that the different treatment
Barrow,
491
T.E.T.,
gent
Trust.,
In addition to In Interest
v. Bd.
standаrd. Mercer
majority
this court also
on the
I.S.D.,
201,
relies
538
North Forest
S.W.2d
206
K.,
cases of
S.W.2d
(Tex.Civ.App.
[14th Dist.]
— Houston
(Tex.1976)
S.,
Baby
In re
Girl
n.r.e.).
writ
For a
ref’d
discussion of
(Tex.App.
S.W.2d 261
writ
tests,
Annot.,
— Eastland
equal protection analysis
see
n.r.e.).1
ref’d
such
Any
L.Ed.2d
1190-92
T.E.T.,
party
As noted
dissent
classification must fall unless the
case of
In Interest
K.
decided be- defending
required
it can
that it is
show
Caban,
fore the
announced
characteristics,
physical
other consti
*12
stringent
which established a
to
more
test
tutionally protected rights such
the
determining equal protection
be used in
right
privacy,
other compelling
of
or
T.E.T.,
claims. In Interest
603 S.W.2d
of
reasons, which means that it
es
must be
at 799.
Baby
The
Girl
case is
on
S.
based
tablished
the differential treatment
is
majority opinion
the
Baby
in T.E.T. In re
necessary
promote
to
state
compelling
S.,
Girl
628 S.W.2d
the
at 262-64. While
Trust.,
interest. Mercer v. Bd.
North
of
Baby
factually
S. case is
comparable
Girl
I.S.D.,
206;
538
Forest
S.W.2d
see Dunn
case,
I
legal
differ
its
with
conclu-
330,
Blumstein,
995,
v.
405
92
31
U.S.
S.Ct.
sion
of its
princi-
because
conflict with the
(1972).
L.Ed.2d 274
A
state
compelling
ples expressed in Caban.
interest is one which the
state is forced
Although this
ordinarily
court must
de- obliged
protect.
Pulsifer,
Dunham v.
opinions
fer to the
of the Texas Supreme
F.Supp. 411,
(D.Vt.1970).
312
417
Cole
Court,
we are bound
the decisions of
155,
Coleman,
man
32 Ohio
291
v.
St.2d
Court,
Supreme
United States
in questions
530,
(1972);
N.E.2d
534
It must
be
further
involving the United States Constitution.
compelling
shown that
state interest
See 21 C.J.S. Courts sec. 206
and may
accomplished by
other reason
cases
therein.
I
appel-
cited
would sustain
means,
necessity
able
without the
of
points
dealing
lant’s
of
equal
error
with
suspect classification. Dunn v. Blum
protection.
343,
stein,
U.S. at
92
405
S.Ct. at
The
cases Caban and T.E.T. were both
I
the appellees
would find that
have
upon
decided based
“in-
what
called the
in showing
failed to meet their burden
equal
standard”
protection
termediate
any compelling
requires
state
analysis,
Supreme
which the
Court оf
deprivation
parental rights
automatic
adopted
United States has
in cases where
identity
an
father
loca-
whose
questioned
on
classification is based
birth,
time
tion are known at the
Craig Boren,
190,
sex. See
v.
429
97
U.S.
actively
who
the time of birth has
from
451,
(1976).
S.Ct.
Robertson,
45 OHIO ST.L.J. 313-382
putative
registry,
a mechanism es-
Lehr,
the Court held that the
tablished to enable an unwed father
State of New York did not violate the
register
relationship
with his child. Id.
rights
give
of an
failing
unwed father
prior
adoption
him notice
at 2994-95. The Court concluded the dis-
of his child
though
stepfather,
the child’s
even
process
cussion of the father’s due
claim
paternity
pend
had a visitation and
action
saying that it
without merit
“[s]ince
ing
adoption.
time of the
In the
two
protect-
adequately
York statutes
New
birth,
years since the child’s
Lehr had not
appellant’s
interest in
ed
inchoate
establish-
any legal steps
paren
taken
tо establish a
relationship.”
ing a
Id. at 2995.
relationship
tal
with the child and had not
bar,
Texas
In the case at
the State of
relationship.
otherwise
such a
established
notice,
appellant’s right to
protected
but
claim,
respect
process
Lehr’s due
With
protected,
prevented, rather than
his incho-
the Court held
the mere
existence
establish,
basis,
right
timely
ate
on a
biological link
equivalent
does not merit
relationship
For
rea-
with his child.
protection,
compared
constitutional
to an
son,
points
I
sustain
would
father who demonstrates a full com
dealing
process.
error
with due
responsibilities
parent
mitment to the
by coming
participate
hood
forward
of the trial
judgment
reverse the
rearing
by acting
of his
court,
appellant is a
render
father toward his children. Lehr v. Rob
McLean,
Baby Boy
and remand
parent of
ertson,
said that: