concurring and dissenting.
I concur with the part of the opinion that adopts strict scrutiny as the standard of review for gender-based discrimination under the Texas Equal Rights Amendment. Tex. Const, art. I, § 3a. I disagree, however, that the cause should be remanded to the trial court for further proceedings. I would hold that the trial court abused its discretion and render judgment that Wise is the legitimate father of the child. I would also terminate the mother’s parental rights and name Wise managing conservator.
Within two days of the baby’s birth, Wise made arrangements to pay the hospital bill and began his efforts to get custody of his child. Because the child’s mother desired that the child be adopted rather than be raised by his father, this unfortunate chain of events began and the child was placed in a foster home, where he is today. It has been almost four years since the child was bom and Wise has been denied every effort to establish an ongoing relationship with his son. His offer to support the child was denied and his efforts to visit his little boy have been thwarted by the State. It is time to end this nightmare.
The record reflects the following: Dr. Leon Morris, a clinical psychologist, testified that he examined Wise and interviewed Wise’s wife and three sons. He concluded that Wise is emotionally and mentally well qualified to raise his son. Carolyn Wise testified that her husband has good parenting skills. He is a loving father and husband who participates in his boys’ activities such as baseball and scouts, camping and fishing.
Carolyn’s nursing supervisor, Michelle Watson and her husband, Garrí Watson, testified that they had known the Wise family for about four years and they described Wise as out-going, likable and good with children. Wise’s children testified that they would welcome the baby into their home. Based on this and other testimony, the trial court made the following findings of fact:
1. Wise has provided for the emotional and physical needs of his children. Wise has not abused, mistreated, or neglected his children and has provided proper parental guidance to them. He has provided the proper love, care, discipline, food, shelter, clothing, and other physical needs that his children required.
2. Wise has shown favorable parental abilities. He raised his children from infancy through adolescence and his children are engaged in sports and other school activities, have average to above average grades, and exhibit good citizenships.
3. Wise is stable. He has been married to his wife for seventeen years. Marital difficulties developed during February 1982 and continued to September 1982. He and his wife reconciled their differences in September 1982 and have lived together as husband and wife since that date without serious marital difficulties.
4. Wise has provided for, and can continue to provide for, the financial needs of his children.
5. Wise desires to take the child in question into his home and provide for his needs and welfare.
For these reasons, I would not further postpone the date that Wise can start nurturing a relationship with his son whom he has not seen since birth. By the court remanding the case, it is possible for the mother to string this case out for a few more years with further proceedings and appeals. This certainly would not be in the best interest of the child.
*700The would-be adoptive parents have relinquished any claim to the child by taking a non-suit on the case. The mother signed an affidavit of her inability to care for the child and expressed the desire that the child be adopted. There is a presumption that the interests of a minor are best served by award of its custody to its natural parents. The burden of proof upon the issue of the best interest of the child is upon the one seeking to deprive the natural parents of custody. Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex.1966); Gunn v. Cavanaugh, 391 S.W.2d 723, 726 (Tex.1965). This burden has not been met.
Wise is not blameless in this ordeal but I believe it is time to end this episode so everyone concerned can get on with their lives. At a time when the State is making great efforts to locate absentee parents and hold them accountable for support of their children, it is ironic that the State has spent so much time and energy in denying a father, who has voluntarily stepped forward, his lawful rights and obligations as a parent.
WALLACE, J., joins in this opinion.