dissenting, on motion for rehearing en banc.
A mother walked out of a hospital after giving birth and said, “it’s not my child,” in a termination suit I presided over years ago. With 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. See Tex. Fam.Code Ann. § 161.001(1)(D) (Vernon Supp.2000). Unlike the abandonment provision in section 161.001(1)(H), which specifically requires “knowledge of the pregnancy,” the legislature did not require a parent to “know” that he is the father when he engaged in the prohibited conduct. See id. § 161.001(1)(H). Naturally, it is absurd for a mother to disclaim the child she bore. Her obligations under section 161.001(1)(D) and (E) begin the moment of birth (some would say earlier). See id. § 161.001(1)(D), (E). A father’s obligation also begins at that moment of birth whether his choice is to remain invincibly ignorant, incarcerated, or addicted. The legislature does not require him to embrace paternity and its responsibilities.
I would overrule Djeto and hold that the jury here properly considered the evidence that Grant endangered Kenya by acts or omissions that occurred at any time. I would further find that the judgment is supported by legally and factually sufficient evidence.