(dissenting).
I respectfully dissent. The majority opinion unnecessarily construes the Family Code in such a way as to deal unequally between men and women and between an unwed mother and an unwed father. Among those differences are:
(1) An unwed woman is treated in law as a parent by force of her biological motherhood, whereas the undisputed fact of fatherhood does not constitute the unwed man a parent.
(2) The unwed father bears the burden of the duties which flow from parenthood upon proof of his biological fatherhood, Gomez v. Perez, 466 S.W.2d 41 (Tex.Civ.App. 1971, writ ref’d n. r. e.), rev’d, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), but the same unwed father has no parental rights by force of his fatherhood.
(3) An unwed man’s parental rights may be permanently terminated without compliance with article 15.02, Family Code, whereas an unwed woman’s parental rights are terminable only upon proof which meets those statutory requirements.
*172Chapter 13 of the Texas Family Code makes provision for legitimation procedures; chapter 14 provides for conservator-ship, possession and support of children; and chapter 15 provides for the permanent termination of the parent-child relationship. Each chapter imposes different tests and rules for each of those three kinds of proceedings. The majority rule, today announced, is that those statutory rules only protect the rights of women, not men.
I rather suppose that S.D.A., the father, would have had problems preserving his parental rights if he had been tried under the correct test; but we pursue a dangerous technique when this court suggests that we might be excused from following the law because, after all, one of the parties is undeserving of an equal rule.
Legitimation Proceedings
According to article 11.01(3), the word “parent” is defined:
“Parent” means the mother, a man as to whom the child is legitimate, or an adoptive mother or father, but does not include a parent as to whom the parent-child relationship has been terminated.
It is at once apparent that the word means one thing as to the mother and an entirely different thing as to the father. Biological motherhood means parenthood in the case of the woman. The majority holds that admitted biological fatherhood does not mean parenthood in the case of the man.
The evidence without dispute conclusively established the biological fatherhood of S.D.A. S.D.A. pleaded the fact, and he filed his statement of paternity which was sufficient under section 13.02.1 That was prima facie proof of paternity under section 13.03.2 The Welfare Unit judicially admitted the fact of paternity by its allegation that “[t]he father of the child is S.D.A.” In the course of the evidentiary hearing the Welfare Unit stipulated that “S.D.A. is the father of Baby Girl K” and the trial court found as a fact that he is the father of the child. S.D.A. conclusively established the fact of his fatherhood as a matter of law at the constitutionally mandated hearing. I would hold, therefore, that biological paternity would constitute a father a parent just as biological maternity constitutes a mother a parent. Article 11.01(3) is void in unequally defining a “parent.”
S.D.A. also contended that he is a parent within a reasonable construction of section 11.01(3) of the Family Code, which in the case of a man, is one as to whom the child is legitimate or has been adopted. He reasons that he established the child’s legitimacy by his compliance with section 13.01 of the Family Code. It provides:
Voluntary Legitimation
(a) The father of a child not the legitimate child of another man may institute a suit for a decree designating him as the father of the child unless, the parent-child relationship has been terminated under Chapter 15 of this code. With the consent of the mother or the managing conservator, if one has been appointed, and *173the court, and on the filing of a statement of paternity executed by the father and submitted with the petition, and after notice to the wife, if any, of the father of the child, the court shall enter a decree declaring the child to be the child of the father.
(b) If a statement of paternity is filed with the State Department of Public Welfare, the father, the mother, or the department may institute a suit for a decree establishing the child as the legitimate child of the person executing the statement. On the consent of the mother, the managing conservator, or the court, and on the filing of the statement of paternity with the petition, the court shall enter a decree declaring the child to be the legitimate child of the person executing the statement of paternity.
(c) A suit for voluntary legitimation may be joined with a suit for termination under Chapter 15 of this code. [Emphasis added.]
Section 13.01(a), quoted above, authorizes the court to “enter a decree declaring the child to be the child of the father.” Section 13.01(b) authorizes the court to “enter a decree declaring the child to be the legitimate child of the person executing the statement of paternity.” In my opinion the Legislature intended in a legitimation proceeding to require proof of the biological fact of paternity and, just as it is the fact of motherhood, it should be the fact of fatherhood which results in a decree of legitimation.
Section 13.01(b) requires the “consent” of the court. That consent should be given and should not be arbitrarily withheld, when all of the facts establish the fact of paternity. When the fact is disputed or ambiguous, the court should withhold its consent until the fact is settled at a trial. The withholding of consent, however, should be for the purpose of requiring proof of the fact of paternity, and not to short-circuit all of the other procedures which the Family Code authorizes.
The correct test in a legitimation proceeding is the fact, vel non, of fatherhood, and not as the majority has held, what is the best interest of the child. Chapter 14 says that the best interest of the child is the correct test for conservatorship, possession and custody and support matters. Those matters are not issues in these proceedings, but the majority has transplanted that test from chapter 14 into legitimation proceedings which involve paternity under chapter 13. Chapter 13 does not mention that test as an appropriate one. When the 63rd Legislature first enacted chapter 13 of the Family Code, it made no provision for involuntary legitimation, that is, paternity suits. It only authorized a father’s voluntary suit for legitimation. The 64th Legislature amended all of chapter 13 and for the first time in Texas authorized an involuntary paternity suit so that either the mother or father could prove paternity. Sections 13.-01-13.09. Under the paternity statutes as enacted in 1975, the issue is clearly that of one’s biological fatherhood. The effect of a decree that he is the father of the child “createfs] the parent-child relationship between the father and the child as if the child were born to the father and mother during marriage.” Section 13.09. The construction which I would give to the earlier voluntary legitimation statute is consistent with what the Texas Legislature has now actually declared to be the correct test in the case of involuntary legitimation. Legitimation proceedings should logically concern the fact of fatherhood, whether it is a voluntary or involuntary proceeding. Until the fact of fatherhood is determined, the issues about conservatorship or permanent termination of parental rights do not arise.
By way of analogy, once the fact of fatherhood is established, an unwed father has certain parental duties fixed upon him. When Gomez v. Perez, 466 S.W.2d 41 (Tex. Civ.App.1971, writ ref’d n. r. e.), came to this court in 1971, we refused the writ by reason of a long line of Texas precedents which held that a father of a child born out of wedlock was under no duty to support the child. As is true in our present case, the proof established the fact of biological fatherhood. The United States Supreme *174Court, even without the aid of a Texas statute, rejected our Texas rule and held that the obligation of the biological father to perforin his parental duty of support applied equally to children born in and out of wedlock. Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). Said the court, “We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right- to a child simply because its natural father has not married its mother.” On constitutional equal protection principles the child of an unwed father was treated like a legitimate child, and that was so without the aid of any statute. In Gomez the biological fact of fatherhood imposed the duty of support. If the rule is equally applied, we should also recognize the father’s correlative rights of parenthood which flow from the same fact.
Termination of the Parent-Child Relationship
Even more surprising, however, is the way the courts below and the majority of this court have arrived at a judgment which permanently terminates S.D.A.’s parental rights. Section 15.023 is the statute which spells out the grounds for an order permanently ending the parent-child relationship. It is in two parts. Subsection (1) requires proof of one of the specified acts numbered from (A) to (I). In addition to that required proof, subsection (2) requires proof that the termination is in the best interest of the child. The majority now holds that the statute applies to a mother but not to S.D.A., a father.
The trial court’s judgment orders the permanent termination of the father’s parental rights in these words: “It is therefore ordered, adjudged and decreed by the Court that all parental rights of G.K. and all rights which S.D.A. may have the right to assert in regards to said Baby Girl K, born April 6, 1974, be and are hereby terminated.” The court of civil appeals and this court have affirmed the judgment of termination and have done so in spite of the Welfare Department’s admission that it neither pleaded nor proved any of the facts required by article 15.02(1). The Welfare Department’s brief says, “[I]t is true that none of the grounds for termination itemized in Sec. 15.02, Texas Family Code were alleged in the petition for termination and none were proved at the hearing, however, the court found from the proof adduced that Petitioner is not a fit and proper per*175son to be entrusted with the care of the child and the best interest of the child requires that the court withhold its consent to legitimation . . .
The majority announces the rule that the Family Code is for the protection of mothers and women, but in the case of fathers and men, it is all right if the court invents a different and special rule. The reason this lack of equality is all right, says the court, is that the father in this case was given notice of the hearing, citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Stanley has now been construed to hold that a man is equally treated if he has notice of the hearing in which the court ignores the Family Code. The rule violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Rothstein v. Lutheran Social Services of Wisconsin & Upper Michigan, 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 786, rev’g mem. 47 Wis.2d 420, 178 N.W.2d 56 (1970); Vander-laan v. Vanderlaan, 405 U.S. 1051, 92 S.Ct. 1488, 31 L.Ed.2d 787, rev’g mem. 126 Ill. App.2d 410, 262 N.E.2d 717 (1970).
I would reverse the judgments of the courts below and remand the cause (1) for the determination of the fact of S.D.A.’s paternity; (2) for the determination of the termination issue under article 15.02; (3) and if termination should fail, then for a determination of managing conservator-ship, possession, and support of the child.
STEAKLEY and DENTON, JJ., join in this dissent.. § 13.02. Statement of Paternity
The statement of paternity authorized to be used in Section 13.01 of this code must be executed by the father of the child as an affidavit and witnessed by two credible adults. The affidavit must clearly state that the father acknowledges the child as his child, that he and the mother, who is named in the affidavit, were not married to each other at the time of conception of the child or at any subsequent time, that the child is not the legitimate child of another man, and that the child is entitled to support from the father. The statement must be executed before a person authorized to administer oaths under the laws of this state.
. § 13.03. Effect of Statement of Paternity
(a) A statement of paternity executed as provided in Section 13.02 of this code is pri-ma facie evidence that the child is the child of the person executing the statement and that the person has an obligation to support the child.
(b) If the father’s address is unknown or he is outside the jurisdiction of the court at the time a suit is instituted under Section 13.01 of this code, his statement of paternity, in the absence of controverting evidence, is sufficient for the court to enter a decree establishing his paternity of the child.
. § 15.02. Termination When Parent is not Petitioner
A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
(A) voluntarily left the child alone or in the possession of another not the parent and -expressed an intent not to return; or
(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of thé child, and remained away for a period of at least three months; or
(C) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or
(D) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or
(E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; or
(F) abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained by the exercise of reasonable diligence; or
(G) contumaciously refused to submit to a reasonable and lawful order of a court under Section 34.05 of this code; or
(H) been the major cause of:
(i) the child’s repeated violations of the compulsory school attendance laws; or
(ii) the child’s absence from his home without the consent of his parents or guardian for a substantial length of time or without the intent to return; or
(I) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Section 15.03 of this code; and
(2) termination is in the best interest of the child.