# In the Interest of McLean

> Texas Supreme Court · February 11, 1987 · 30 Tex. Sup. Ct. J. 206

URL: https://www.frixlaw.com/law-library/cases/9764852

## Case

- **Full name:** In the Interest of Unnamed Baby McLEAN, a Child, Petitioner
- **Court:** Texas Supreme Court
- **Decided:** February 11, 1987
- **Citations:** 30 Tex. Sup. Ct. J. 206; 725 S.W.2d 696; 55 U.S.L.W. 2474; 1987 Tex. LEXIS 295
- **Precedential status:** Published
- **Opinion:** Dissent by Robertson
- **Judges:** Kilgarlin, Robertson, Gonzalez, Wallace, Hill, Campbell, Spears
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764852

## How later opinions describe it (automated extraction)

- explaining that to meet its burden under strict scrutiny, the state must show that “there is no other manner to protect the state’s compelling interest” other than to discriminate against men
- concluding that because the Texas Equal Rights Amendment of 1972 was worded differently than the earlier enacted federal provision, it may have intended different results
- concluding that “the Equal Rights Amendment is more extensive and provides more -9- 04-22-00872-CR specific protection” than Constitution
- concluding that “the Equal Rights Amendment is more extensive and provides more specific protection” than the Constitution
- holding that a father seeking to legitimate his child cannot be held to a higher standard of proof

## Opinion text

ROBERTSON,
dissenting on Motion for Rehearing.
I respectfully dissent. The Respondent now calls our attention to In re Baby Girl S, 628 S.W.2d 261 (Tex.App. — Eastland 1982, writ ref’d n.r.e.), 1 a case with virtually identical facts to this case but which upheld the validity of § 13.21 of the Family Code. In Baby Girl S , the biological father challenged the constitutionality of § 13.21 under the Texas Equal Rights Amendment. Utilizing the strict scrutiny standard of review, the court held that § 13.21 did not violate the Texas Equal Rights Amendment because of the important state objective in promoting the best interest of children bom out of wedlock. In re Baby Girl S at 264 . That case cannot be distinguished and the contrary result cannot be reconciled. I am persuaded by the Respondent’s argument and the reasoning of the court in Baby Girl S that the special difficulties a mother of an illegitimate child faces from the moment of conception justify the differential treatment of the mother and biological father in § 13.21.
The classification about which Petitioner complains has less to do with gender than it does the recognition of a simple fact of life: only a woman can conceive, carry and give birth to a child. It is for this reason that the mother is the easily identifiable parent who must automatically assume responsibility for the child. From the moment of conception, it is the woman, and the woman alone, who bears the physical, emotional and financial burden of her pregnancy. The biological father, on the other hand, is totally free from any responsibility with respect to the child unless and until he chooses to step forward or some action is taken against him. Meanwhile, the mother is constantly faced with decisions about how to best care for the child. As this court has previously recognized, and as the majority acknowledges:
[T]he State has a legitimate interest in protecting the children who are bom as a result of pre-marital sexual activity. The mother, by virtue of her pregnancy, is automatically responsible for the child. She has the physical burdens and responsibilities of the pregnancy. She can choose to abort the child or she may carry it full term. The State has a substantial interest in encouraging the unwed mother to properly care for the child by assuring her that her wishes as to the disposition of the child will not, absent her consent or a finding of the child’s best interest, be subject to the absolute veto of the biological father.
In the Interest of T.E.T., 603 S.W.2d 793, 797 (Tex.1980).
The majority then holds that “[t]he state goal of protecting children’s welfare is better served by keying that interest to the father’s relationship to the child.” Section 13.21 does in fact provide for consideration of the father’s relationship to the child and it is the evidence of that relationship that led to the trial court’s determination that it *701 was not in the child’s best interest to be legitimated as to Wise. Contrary to the characterization of Wise as a “father who step[ped] forward, willing and able to shoulder the responsibility of raising a child,” Wise did not “step forward” until after the child was bom and he was informed of the adoption proceedings, although he was told by McLean that she was pregnant several months prior to birth of the child. Further, there is no credible evidence that Wise offered to support the child or that he made arrangements to pay McLean’s medical bills. In fact, the hospital bill remains unpaid. More importantly, however, the record reflects that Wise is a diagnosed chronic paranoid schizophrenic for which he has been rated 100% disabled by the Veterans Administration and for which he now receives $1,400 per month in disability benefits. He is unable to hold down a steady job due to his violent temperament. His wife testified that he has had at least seventy-one jobs from the date of his discharge from the service, May 15, 1970, and the date of trial, April 10, 1984. He has a history of being unable to get along with people dating back to his parents and schoolteachers. He dropped out of high school in the tenth grade because of problems with his teachers. At the time of the trial of this cause, three felony indictments were pending against Wise, one of which was dismissed the day of trial when Wise made restitution. These are all factors which should be taken into consideration when awarding custody, visitation or support of the child.
Finally, I disagree with the concurring opinion which would render judgment legitimating the child as to Wise and awarding custody to him. For the reasons set out above, I question whether Wise is a fit parent. Further, almost three years have elapsed since the trial court made its findings of fact, and circumstances may have changed for the worse. Additionally, because Laura McLean has not relinquished her parental rights, she is entitled to seek custody. The child’s circumstances may be such that removal from his foster parents’ home would not be advisable. All of these matters should be addressed by the trial court before any custody, visitation or support determination is made.
Because I am of the opinion that the State has sustained its burden of justifying the differential treatment in § 13.21, I would affirm the judgments of the lower courts.
HILL, C.J., and CAMPBELL and SPEARS, JJ., join in this dissenting opinion on rehearing.
. On rehearing, the court has overruled this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764852. Public record. Not legal advice.