dissenting.
I respectfully dissent. I view the majority opinion as having the effect of depriving a twelve year old child of her constitutional substantive due process right under the Texas Constitution to have her biological parent adjudicated pursuant to Tex. Fam.Code Ann. § 13.44(a)(1) (Supp.1993).
The majority mainly relies upon Dreyer v. Greene, 871 S.W.2d 697 (Tex.1993)3 to reach the conclusion that a child has no standing to again address the paternity issue where a previous default divorce decree had been entered in which the presumed father was named the father of the children, holding that this finding was an implied adjudication that he is also the biological father, therefore barring that issue being re-litigated. The present case differs from Dreyer as the majority in Dreyer did not address the due process constitutional questions arising under A'ticle 1, Section 19 of the Texas Constitution as they were not preserved in the trial court. In the present case they are adequately and properly preserved. Additionally, in the present case, there was a termination of the parental rights of the presumed father without appointing a guardian ad li-tem. The majority finds no error in the trial courts finding that the mother’s and child’s rights were not in conflict making it unnecessary to appoint a guardian ad litem. I disagree because the termination would deprive the child of possible future support, there was an inherent conflict between the mother and the child in this proceeding necessitating an appointment of an attorney ad litem who would have at least explored evidence as to paternity. The controlling facts are markedly different than those in Dreyer. In Dreyer the twins which were the subject of the suit were possibly conceived in an adulterous re*474lationship during the marriage. In this case the summary judgment evidence showed the Appellee had sexual relations with the mother of the child prior to the marriage to the presumed father, with her being approximately six months pregnant. Appellee does not deny sexual relations with the mother during the time of possible conception but states that he was incapable of being the father which has been medically corrected. I agree and adopt here Justice Gammage’s reasoning on this issue as pointed out in his dissent in Dreyer v. Greene and specifically when he states:
The literal terms of the statute (Tex. Fam.Code Ann. § 13.44) do not require that a default divorce decree which merely recites the children are “of the marriage” be deemed as ‘adjudicating ... the biological father.’ ” There simply is no litigation of biological paternity in such a divorce decree. Indeed, one court of appeals has already written that the effect of such a recital in a default divorce decree is to leave in place, as between the parties to the divorce, the presumption that the child born during the marriage is that of the husband and does not litigate paternity. Espiricueta v. Vargas, 820 S.W.2d 17, 19 (Tex.App.—Austin 1991, writ denied); cited with general approval in The Attorney General of Texas v. Lavan, 833 S.W.2d 952, 955 (Tex.1992).
and further:
The due course of law provision under the Texas Constitution provides protection to certain purported biological fathers seeking to assert their claims to paternity.” In the Interest of J.W.T., 872 S.W.2d 189 (Tex.1994). It seems to me that the children themselves would necessarily have the same right, under due course of law, to assert their claims of paternity against their actual biological father, even if their mother, in a default divorce decree, has claimed otherwise. The construction of the statute which avoids this serious constitutional problem is that the nominal recitations of “to the marriage” in the default divorce decree do not, as to the children, constitute an uncontestable “adjudication of paternity under section 13.44.
The child’s interests were not adequately represented and the child should not be bound by the judgment insofar as it could be construed to adjudicate paternity. The Supreme Court has suggested that it may be error subject to per se reversal on appeal or a direct attack to adjudicate a minor’s rights when the minor does not have proper separate representation. Missouri-Kansas-Texas RR. v. Pluto, 138 Tex. 1, 156 S.W.2d 265 (1941). I end this dissent with a further quote from Justice Gammage in Dreyer. It “[i]s singularly disingenuous for this court to declare here that the legislature meant to have these minors’ parentage “adjudicated” by that perfunctory default proceeding in which they had no separate representation.”
For these reasons, I respectfully dissent.
. Three justices dissented. Justice Gammage wrote the dissent.