Summary
noting only one ground is necessary to uphold termination
Summary of this case from In re C.N.L.Opinion
No. 19-1069
05-27-2022
In the INTEREST OF J.W., a Child
Kathleen P. Cline, Comfort, for Other interested party W., J. Amanda Buenger, Karen Jean Langsley, for Petitioner W., G. T. Karlene Dunn Poll, Raymond Louis Thomas, McAllen, Lisa B. Hobbs, Austin, for Petitioner W., J. Tiffany Lauren Roper, Jarvis J. Parsons, Eric Scott Houghton, Mark T. Zuniga, Michael R. Abrams, Eric T. Tai, Audrey Celeste Carmical, Anna Maria Ford, for Respondent.
Kathleen P. Cline, Comfort, for Other interested party W., J.
Amanda Buenger, Karen Jean Langsley, for Petitioner W., G. T.
Karlene Dunn Poll, Raymond Louis Thomas, McAllen, Lisa B. Hobbs, Austin, for Petitioner W., J.
Tiffany Lauren Roper, Jarvis J. Parsons, Eric Scott Houghton, Mark T. Zuniga, Michael R. Abrams, Eric T. Tai, Audrey Celeste Carmical, Anna Maria Ford, for Respondent.
Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Hecht, Justice Bland, Justice Huddle, and Justice Young joined.
In this difficult parental-termination case, we examine the legal sufficiency of the evidence to support the jury's finding, by clear and convincing evidence, that Father's parental rights to his child should be terminated. After a thorough review of the record, we hold that the jury reasonably could have formed a firm belief or conviction that (1) one statutory predicate ground for termination was met and (2) termination was in the child's best interest. However, we also hold that another statutory ground was improperly submitted to the jury as part of a broad-form termination question. Because we cannot discern whether the jury terminated Father's rights on an invalid ground, and because he preserved the charge error, we reverse the court of appeals’ judgment as to Father and remand for a new trial.
I. Background
Mother and Father were married in February 2016. Mother had two children, "Jason" and "Doug." Her parental rights to her younger son, Doug, had been terminated in 2011 on the grounds that she (1) "knowingly placed or knowingly allowed [him] to remain in conditions or surroundings which endanger [his] physical or emotional well-being" and (2) "engaged in conduct or knowingly placed [him] with persons who engaged in conduct which endangers [his] physical or emotional well-being." TEX. FAM. CODE § 161.001(b)(1)(D), (E). Both children live with Jason's biological father, and Mother visits them often.
According to Kelly Allen, a supervisor with the Department of Family and Protective Services who participated in the investigation involving Doug, the case was opened because of concerns that Mother was using drugs and was not meeting Doug's medical needs. Allen testified that Doug, who has a medical condition involving deterioration of the muscles in his legs, was almost seven years old at the time of the investigation, had never been enrolled in school, could not read or write, and had not been provided the walker, wheelchair, therapy, or pain medication he needed. She was particularly concerned that Mother had filled her own prescription "for an opiate" but had not obtained Doug's medication.
Allen also described two incidents in which Mother "absconded" with the children. Early in the investigation involving Doug, when Mother was informed that the Department would be removing him from her care, Mother left the Department's office with him and disappeared for over a week until law enforcement located them. She ultimately pleaded guilty to interference with an investigation, a misdemeanor offense, and was sentenced to 100 days in county jail. During a different Department investigation concerning Jason, law enforcement was called to locate him and Mother after she took him from the home of his biological father.
Mother learned that she was pregnant with J.W. in July 2016, five months after she and Father were married. At the time, Mother worked for Sanderson Farms, a poultry-processing company, and had developed work-related respiratory issues for which she was taking Promethazine, a prescription medication that can contain codeine, an opiate. According to Father, Mother told him that she was concerned she had developed an opiate addiction that needed to be addressed in light of the pregnancy. They were referred to a facility in Florida where Mother could undergo a detox regimen, with inpatient treatment to follow. Mother entered the facility shortly before Thanksgiving and completed the five-day detox program. However, she refused any further treatment and instead returned to Texas. Father testified that she left the facility because it had confiscated her Promethazine and "wouldn't let her take" it.
At one point, Mother named a different man as J.W.’s father on an application for government assistance, testifying that she did so because she did not want Father to know she was receiving benefits. Father took a paternity test confirming that he is J.W.’s biological father.
When Mother returned from Florida, Father started working on a large project in Houston and was away from Mother for "most of ... January and into February." Later in her pregnancy, Mother began treatment at a methadone clinic associated with a substance-abuse treatment center in Houston. Mother does not drive, and Father drove her from College Station to the clinic each day for two or three weeks. Mother reportedly planned to enter the affiliated treatment center, but she never enrolled and gave birth to J.W. unexpectedly at home on April 24, 2017.
Mother and J.W. were immediately transported by ambulance to the hospital, where J.W. was treated for respiratory distress caused by aspirating meconium into his lungs. In evaluating the cause of J.W.’s respiratory distress, the hospital conducted drug tests on both J.W. and Mother; Mother's urine tested positive for opiates and amphetamines, and J.W.’s tested positive for opiates. A sample of J.W.’s meconium collected on April 25 tested positive for opiates, amphetamines, benzodiazepine, barbiturates, and methadone. Dr. Khaled Hilal, J.W.’s treating neonatologist, testified that the benzodiazepine and barbiturates could be explained by medications the hospital had administered when J.W. was admitted. The source of the amphetamines was never identified, but Dr. Hilal agreed that some prescription medications can cause a positive test, although the codeine that likely caused the positive opiate test would not have caused the positive result for amphetamines. In light of the positive drug tests, the hospital referred the case to the Department.
On April 28, J.W. began showing signs of withdrawal; Dr. Hilal described J.W. as inconsolable, jittery, sweating, hypertonic, not sleeping, and experiencing poor weight gain and loose stool. The hospital began administering morphine on April 30 to treat his symptoms and weaned him off the medication over a ten-day period. The hospital also adjusted his formula to counteract his poor weight gain.
In the meantime, Department investigator Madison Gresset received the referral on April 25 and conducted an initial investigation. When the results of the meconium drug screen came back on May 1, a hospital social worker told Gresset that one of the substances for which J.W. tested positive was methamphetamine, an illegal street drug, but the parties agree that this was a mistake and that neither Mother nor J.W. has ever tested positive for that drug. When Gresset spoke to Father about the test results, he reported that he did not know Mother had used any substances and had no knowledge of how they could have entered her system. He described Mother as a "free spirit ... coming and going as she pleased" from their home. Gresset attempted to speak to Mother about the results the same day but was unable to locate her at the hospital. The following day, the Department was informed that Mother and Father had an attorney.
On May 17, two days before J.W. was discharged from the hospital, the Department filed for emergency removal and sought temporary managing conservatorship of J.W., which the trial court granted. The Department had considered placing J.W. with Father rather than seeking removal, but Father expressed that he was not sure he could act as an independent caregiver for J.W. at that time. Gresset was also troubled by Father's denial of knowledge about Mother's substance use and was concerned that he was missing warning signs and justifying her behavior.
Before J.W.’s discharge, the Department had instructed the hospital that contact between the parents and J.W. had to be supervised, at least in part because of the incident involving Mother's taking Doug to prevent his removal.
The Department considered and ultimately ruled out several other possible placements suggested by J.W.’s parents. Father's two brothers and a family friend informed the Department that they supported Father but did not want to be considered as placements for J.W. The Department ruled out the household of Cecilia and Cecilio Salas, the mother and brother of Mother's former fiancé who had passed away, because of concerns about a suspected romantic relationship between Mother and Mr. Salas and its effect on the family's ability to be objective about Mother and protective of J.W. Mother and Mr. Salas denied such a relationship, though according to a conservatorship caseworker with the Department, Father had previously described Mr. Salas as being "infatuated" with Mother. Finally, Father proposed that he and J.W. could move in with Mother's sister, Nicole Taylor, and requested that the Department conduct a home study. According to Gresset, the Department had concerns about Taylor's protectiveness and whether her limited mobility, which was the result of a car accident years earlier, would allow her to be an independent caregiver if necessary. The Department therefore "wanted to have a very thorough look at her home and her home environment" before determining whether she was a viable long-term placement option.
Department supervisor Kelly Allen described the references collected during the home study for Taylor as "indicat[ing] that she would struggle to care for a child based on her own [medical] needs," leading the Department to question whether she could provide an appropriate home for J.W. Allen further testified that Taylor subsequently informed the Department she no longer wanted to be considered as a placement for J.W. because she was concerned that Mother's presence in her home could jeopardize Taylor's visitation rights with her own children, who were in their father's custody. Taylor denied ever withdrawing from consideration as a placement.
J.W. was discharged from the hospital on May 19, and, after failing to find a suitable relative placement, the Department placed him with an unrelated foster family with whom he has lived ever since. Following an adversary hearing held on May 31–June 1, the trial court issued temporary orders naming the Department temporary managing conservator, requiring Mother and Father to comply with the requirements in the Department's service plan, and approving visitation at a minimum of once per week for a two-hour period. Among other things, the service plan required Mother and Father to maintain a safe and stable home environment, submit to random drug tests as requested by the Department, contact Department caseworkers at least twice a month, attend supervised visits with J.W., complete a psychological evaluation and follow recommendations, and attend individual counseling. Mother was also required to complete inpatient and outpatient drug treatment.
At trial, Department caseworkers testified at length about the parents’ actions in relation to the service plan. Mother completed parenting classes, but her attendance at individual counseling sessions was "very poor." She completed a psychological evaluation in February 2018 with Dr. Matthew Ferrara, though he testified that the tests he administered indicated Mother's answers were unreliable and that she exhibited significant positive response bias, meaning she underestimated the scope and intensity of her problems and provided answers in an effort to appear more "virtuous" than she actually is. Mother also missed "quite a few" of the weekly visits with J.W., which she attributed to not wanting to get him sick. As for the required drug testing, Mother missed twelve of fourteen scheduled drug tests, resulting in those missed tests being deemed positive. A July 20, 2017 test was positive for methadone, explained by Mother's resumption of treatment at the methadone clinic after J.W.’s birth, and a February 8, 2018 test was positive for morphine and codeine.
Mother initially scheduled a psychological evaluation with Dr. Paul Damin, but she testified that she left his office without seeing him because the receptionist was rude to her. She then scheduled an evaluation with Dr. Ebony Butler, but she left in the middle of the appointment because, according to Mother, Dr. Butler got mad at her and acted unprofessionally.
Mother attributed some of the missed drug tests to conflicts with scheduled visits with J.W. and others to her view that "no matter what I did for the Department, it wasn't going to change anything."
According to Mother, the February drug test was explained by medication doctors had given her during an emergency-room visit in December 2017. Mother said she was unable to provide records of that visit because she had used her friend's name, as she did not have insurance at the time. When asked about the incident, Mother testified that "my friend was the one that said I was her" and that Mother did not realize what had happened until after she was treated.
Mother refused to participate in an inpatient drug-treatment program, but she did begin an intensive outpatient program at All About Recovery, a facility in Houston, in July 2017. She was unsuccessfully discharged from the program in late September due to excessive absences. Mother reentered the program in early October, completed all the sessions, and was given a "successful but guarded" discharge in December 2017 based on an incident involving both Mother and Father that occurred after her last session. Specifically, Mother was asked to provide an exit urine sample and was required to be observed by a facility staff member. While waiting for Mother to prepare herself, a staff member observed Father exiting the men's bathroom with a full specimen cup and handing it to Mother, who was exiting the women's bathroom. Mother and Father were told that the facility could not accept the specimen in light of the irregularity, and a counselor testified that Mother and Father left the facility before they could be told that it was still willing to allow Mother to provide a proper sample. Mother and Father denied the incident, and Mother testified that she did not provide another sample because she was told to leave.
As to Father's service plan, the Department agreed that he satisfied several of the requirements. He completed parenting classes and individual counseling, had a stable retirement income, and attended all but two or three of the weekly visits with J.W. The Department waived the requirement that he obtain a psychological evaluation and did not require him to submit to any additional drug testing after his initial negative test. However, the Department's position at trial was that Father failed to comply with the service plan's requirements that he "maintain a safe and stable home environment" and "contact [the Department] caseworker at least twice a month."
In the court of appeals, the Department argued that Father did not complete the counseling requirements, but the Department does not make that argument in this Court, and we do not consider it.
With regard to Father's maintaining contact with the Department, Allen testified that his contact was "excellent" during the first few months of the proceedings, but at some point after July 2017 "he would no longer speak to us," apparently at Mother's behest. Allen stated that Mother would answer Father's phone, tell him not to talk to the Department, and hang up. When they came to the Department's office for weekly visits with J.W., Mother would not look at or speak to anyone and would tell Father to "shut up" if he attempted to speak, resulting in "very little meaningful contact" with either parent. Father attributed the change in attitude to the Department's making it clear at a family group conference in July 2017—which Mother did not attend—that its goal was to terminate his and Mother's parental rights. In any event, as noted, Father attended almost all the weekly visits with J.W., which took place at the Department's office.
Allen testified that the Department's "primary" goal was unrelated adoption; that its "concurrent" goal, which "the Department works simultaneously," was family reunification; and that the goals can switch during the proceedings if the parents make progress. She stated that this was explained at the family group conference.
With respect to maintaining a "safe and stable home environment," the Department discussed the condition of Father's residence, the lack of a concrete plan for independently raising J.W., and Father's ongoing relationship with Mother. Concerns about Father's residence, which Father had owned for approximately forty years, were based on two home visits occurring on May 31, 2017, and June 20, 2018. Gresset conducted the first visit and described the house as being "unsafe for a child." She testified that she could not physically enter some of the rooms because objects "completely overwhelmed all of the surfaces." This included the room in which Mother and Father "had started the process of putting the crib together but there were just innumerable items piled upon each other, making it very difficult to navigate." Gresset also described a hole in the hallway ceiling that had gray and black color around the edge, suggesting water damage. Gresset took photographs of the home that bear out her description and show rooms overflowing with trash, loose cables, clothes, and other miscellaneous household items, including an ashtray filled with cigarette butts indicating smoking in the house was a common occurrence. Gresset did not observe anything that she would consider a "biohazard," such as fecal matter or insects.
Department caseworker Jennifer Smith visited the residence in June 2018, approximately four months before trial. At trial, she was shown the photographs from the previous visit, which she described as showing the house to be unsafe for a young child, and she stated that Father had done nothing to address those issues. She also noted being "hit with an overwhelming odor of stale cigarette smoke as well as fresh cigarette smoke" when she entered the home and observed an ashtray filled with cigarette butts apparently belonging to Mother. Smith believed it was "unrealistic" to think J.W. would never be in the home if Father regained custody, so she offered to walk through the home with him and make suggestions about how to make it safe for a toddler. Father declined and did not permit her to take photographs of the house.
Father did not contend at trial that his home was suitable or safe for a child. Rather, he testified that he and Mother had never intended to raise J.W. in that home and that, even before J.W. was born, they intended to live with him and raise him in Taylor's apartment. He stated that this had been the plan throughout the proceedings and that the Department had been aware of it since before J.W. was discharged from the hospital. Father further testified that he and Mother had filed for divorce the week before trial in order to give Mother a fresh start in Houston, where she had been living with the Salas family, and to give Father a chance to be a father to J.W. He explained that his plan was to reside temporarily at Taylor's apartment with J.W. while he sold his house, and then move to the Fort Worth area to be close to his family. He also testified that Mother loves J.W., has "kind of got her life back together," and has been sober for a long time, but that he would not allow J.W. to be around her if he believed she was under the influence of anything.
The Department's witnesses disputed both whether there had been a consistent plan to raise J.W. in a safe environment and whether Father had demonstrated his ability to put J.W.’s needs above Mother's. Gresset testified that at the beginning of the investigation, her understanding was that Mother and Father lived together in the home Father owned, and she had no reason to believe they intended to raise J.W. anywhere other than that home before the Department got involved. Taylor testified that discussions with Mother and Father about Taylor's assisting them with J.W. and being a possible placement began a few weeks after J.W. was born, calling into question Father's assertion that they had planned to move in with Taylor all along. And as noted, Allen testified that Taylor had withdrawn from consideration as a placement earlier in the proceedings, though Taylor disputed that assertion and testified that she was still open to letting Father and J.W. move in with her.
The Department also discussed ongoing uncertainty about Mother's and Father's living arrangements over the course of the proceedings and whether their planned divorce was "in name only." Wendy Arline, a Department courtesy worker who assisted with setting up services for Mother in Houston, testified that scheduling issues had arisen because the parents sometimes reported they lived in Houston and sometimes reported they lived in College Station. Mother had reportedly been living in Houston with the Salas family for over a year at the time of trial but was not listed on their apartment lease and was seeing a therapist in College Station. Mother reported to the Department in April 2018 that she and Father planned to get a divorce, but Father also reported that they continued to spend nights under the same roof on a regular basis. On June 15, 2018, Arline made an unannounced visit to the apartment where Mother lived with the Salas family, and Father answered the door "look[ing] like he had just woke[n] up." Five days later, Smith visited Father's residence in College Station, and he informed her that Mother had been there earlier that day and had just left to go back to Houston. He also stated that he was Mother's primary source of transportation.
Allen described additional instability with respect to Father's living situation and plans for J.W. When questioned whether Father had continually expressed his intent to live with J.W. at Taylor's home, Allen replied:
It's actually the opposite of that, and – and it does go towards stable home. [Father] has said his home would be his primary residence with the child. He's indicated that the home of Nicole Taylor, [Mother's] sister would [be] the primary residence. He has said that he will move into a home near his brother's in the North Texas area.
So in fact he has given us numerous possible locations where he and the child will live, but has never made any steps to prepare these homes to live there. And in fact on Friday when he indicated he would be living possibly with Nicole, who is [Mother's] sister, when we asked to see the home he said the room still wasn't ready.
Allen further noted that Father "had tons of character witnesses who would drop anything and do anything for him" but "18 months into the case, his house is in disarray, he doesn't have a solid plan for where the baby is going to go, he doesn't ... have a car ... to put the baby in." The concern about Father's car was that it remained full of trash, bottles, and choking hazards and was so cluttered that, according to Smith, it did not appear that "a car seat could even be put in the back seat of the car for the child." The back windshield, which Father explained had been hit by a pellet while he was driving on the highway about a month before trial, remained "completely broken and crushed in," with glass shards on the inside of the car.
Smith also discussed a visit with Father at her office on October 5, 2018, only a few days before trial. Father was "very friendly" as he always was, but their conversation left her with "some concerns." Specifically, Father stated that he "feels a very strong calling to help" Mother and remains her primary source of transportation even though she lives in Houston. They discussed an incident that occurred in March 2017, approximately one month before J.W.’s birth, in which Father allowed a friend of Mother's who had recently been released from prison to stay in their home because, although he "was not crazy about the idea," he "didn't have the heart to tell her no." While staying with them, Mother's friend "overdosed on something" and had to be taken to the emergency room. Father similarly reported allowing a "friend of a friend" of Mother's, who Father believed had just gotten out of jail, to stay in his home over the preceding summer because, again, he "didn't really have the heart to tell her no."
According to Smith, Father also reported that Mother had told him she wanted to have more children with him in the future and that "he told her that they had to wait until after this case was done." This conversation caused Smith to question whether Father genuinely intended to separate from Mother and whether he could adequately protect J.W. given his knowledge of Mother's history, the circumstances surrounding J.W.’s birth, and Mother's continuing issues. Father recalled the conversation with Smith differently, testifying that he and Mother intended to finalize the divorce, that he knew a new case could be opened against him if he regained custody of J.W. and failed to protect him, and that he had no plans to have more children with Mother. Mother similarly testified that she wanted Father to have the opportunity to raise J.W. and that she could and would "stay away" if he told her to.
Father's discharge summary from his counseling sessions in the spring of 2018 also contributed to the Department's concerns about his ability to protect J.W. Father's counselor testified that in her view, Father believed whatever Mother told him, minimized her drug use, and made excuses for her behavior. Consistent with that pattern, Smith noted that during her visit to his home in June 2018, Father stated that he did not believe Mother posed any danger to J.W. and that the Department had been called initially only because of Mother's history with her older children. When asked about the fact that J.W. tested positive for opiates when he was born, Father reportedly said that it had been "a very slight issue," that "the doctor said it was moderate," and that J.W. had been fine after a three-day hospitalization. Father denied this description of the conversation, testifying that he did not characterize the incident as a "slight issue" and reported only what the doctor had told him about J.W.’s symptoms being moderate.
In addition to disputing some of the caseworkers’ testimony about the course of events after the Department got involved, Father presented several witnesses who testified about his character. By those accounts, Father has a history of volunteering for charitable causes, including the Boys and Girls Club. Friends and family testified that he was happy and excited about being a father and that they believe he would be a good parent and would be protective of J.W. And Father's brother testified that if Father moved to the Fort Worth area with J.W., the family would be supportive and would help them find a place to live.
J.W.’s foster mother testified that in her interactions with Father, he had been very kind and genuinely interested in J.W.’s health and welfare. She testified that she loves J.W., that she and her husband are willing to adopt him, and that she wants what is best for him. She also said that regardless of the result, she believes it is important for J.W. to have the opportunity to know Mother and Father if he wishes. Father similarly testified that if J.W. were returned to him and the foster parents "wanted to see [him] some time, ... that would be fine."
Summarizing her opinion that termination of Father's parental rights would be in J.W.’s best interest, Smith explained:
I believe that in terminating [Father's] parental rights, [J.W.] would be able to be in an environment that is safe and appropriate where he is protected; where his needs are not only met but placed first; where his social and emotional needs are met; where he's kept safe from drug use, criminal involvement, even elements in his environment that can be dangerous to him. I believe that it is in his best interest to be in an environment that will keep him safe.
The Court Appointed Special Advocate (CASA) assigned to J.W.’s case also testified that she believed termination was in J.W.’s best interest. She explained that she did not "say that lightly" because "they're loving parents, but they're not capable of taking care of this child adequately in my opinion."
At the conclusion of the five-day trial, the jury was asked two broad-form questions: whether the parent–child relationship between Mother and J.W. should be terminated and whether the parent–child relationship between Father and J.W. should be terminated. The jury was instructed that to terminate the relationship as to Father, it had to find by clear and convincing evidence that termination was in J.W.’s best interest and that "at least one of the following events has occurred": (1) Father knowingly placed or knowingly allowed J.W. to remain in conditions or surroundings that endanger his physical or emotional well-being, see TEX. FAM. CODE § 161.001(b)(1)(D) ; (2) Father engaged in conduct or knowingly placed J.W. with persons who engaged in conduct that endangers his physical or emotional well-being, see id. § 161.001(b)(1)(E) ; and (3) Father failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of J.W. who has been in the temporary managing conservatorship of the Department for not less than nine months as the result of his removal under Chapter 262 of the Family Code, see id. § 161.001(b)(1)(O). The jury was instructed similarly as to Mother, although two additional predicate grounds—involving prior termination of parental rights as to another child on endangerment grounds and use of a controlled substance in a manner that endangered J.W.’s health or safety—were also submitted for the jury's consideration.
Father objected to the broad-form submission; that is, he objected to the three predicate grounds and best interest "being lumped together" into a single question. The trial court overruled that objection, and the jury found by clear and convincing evidence that both parents’ rights should be terminated. Consistent with that verdict, the trial court rendered a final order of termination.
Father appealed, arguing the evidence was insufficient to support the jury's findings as to the three predicate grounds as well as the jury's best-interest finding. Father presented as an alternative issue that "if there is evidence to support the jury's predicate finding under one ground, the Court must nonetheless reverse and remand for a new trial, as Father objected to the trial court's broad-form submission because there was no evidence to support at least one predicate." Mother's attorney filed a detailed Anders brief in the court of appeals, stating that after a thorough examination of the record for any potentially meritorious issues, she had identified no nonfrivolous issue to raise in the appeal. The court of appeals affirmed as to both parents. That judgment is final as to Mother, who did not petition this Court for review.
With respect to Father, the court of appeals initially held that the evidence was legally sufficient to support the best-interest finding and to support the predicate ground under Section 161.001(b)(1)(O) —failure to comply with a court order that established the actions necessary to obtain J.W.’s return. 2019 WL 1966798, at *4–6 (Tex. App.—Waco May 1, 2019). Because only one predicate ground is necessary to support a judgment for termination, In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003), the court of appeals did not address Father's sufficiency challenges to the two predicate grounds under Subsections (D) and (E) involving endangerment, see 2019 WL 1966798, at *4. The court of appeals also did not address Father's assertion that the trial court erred in submitting a broad-form charge to the jury, holding that the issue was inadequately briefed. Id. at *7.
Shortly after the court of appeals issued its opinion, this Court decided In re N.G. , 577 S.W.3d 230 (Tex. 2019). In that case, we held that due process requires appellate review of a challenged finding under Section 161.001(b)(1)(D) or (E), even if sufficient evidence supports a different predicate termination ground, because of the potential consequences of a Subsection (D) or (E) finding with respect to parental rights to a different child. Id. at 235 ; see TEX. FAM. CODE § 161.001(b)(1)(M), (b)(2) (providing for termination of parental rights if the court finds by clear and convincing evidence that (1) the parent's rights to another child were terminated based on a finding under Subsection (D) or (E) and (2) termination is in the child's best interest). In light of that intervening change in the law, the court of appeals granted Father's motion for rehearing and issued a substituted opinion. 627 S.W.3d 662, 665 (Tex. App.—Waco 2019).
In its opinion on rehearing, the court of appeals again held that legally sufficient evidence supported the Subsection (O) ground and the jury's best-interest finding. Id. at 671, 673. The court further held that legally sufficient evidence supported termination under Subsections (D) and (E). Id. at 672. Because the court of appeals concluded that the evidence was sufficient to support all three predicate grounds submitted to the jury, it did not address Father's argument that the trial court's broad-form submission was reversible error. Id. at 673. We granted Father's petition for review.
II. Standard of Review
A parent's fundamental right to the care, custody, and control of his child is of constitutional magnitude. In re E.N.C. , 384 S.W.3d 796, 802 (Tex. 2012). Accordingly, to terminate that right, the State must meet a clear-and-convincing burden of proof at trial. In re A.B. , 437 S.W.3d 498, 502 (Tex. 2014) ; TEX. FAM. CODE § 161.001(b) ; see also id. § 101.007 (defining "clear and convincing evidence" as "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established").
This heightened burden of proof affects the standard of review in an evidentiary challenge on appeal. To that end, in reviewing a legal-sufficiency challenge, we must determine whether "a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). Bearing in mind the required appellate deference to the factfinder, we "look at all the evidence in the light most favorable to the finding," "assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so," and "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. However, we may not disregard "undisputed facts that do not support the finding." Id. Under this standard, the factfinder remains "the sole arbiter of the witnesses’ credibility and demeanor." In re J.F.-G. , 627 S.W.3d 304, 312 (Tex. 2021) (quoting In re J.O.A. , 283 S.W.3d 336, 346 (Tex. 2009) ).
III. Discussion
A court may terminate a parent's right to his child if it finds by clear and convincing evidence both that (1) the parent committed an act prohibited under Texas Family Code Section 161.001(b)(1), and (2) termination is in the child's best interest. TEX. FAM. CODE § 161.001(b) ; In re E.N.C. , 384 S.W.3d 796, 803 (Tex. 2012). The three predicate grounds under Section 161.001(b)(1) at issue here are:
(D) [the parent has] knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
(E) [the parent has] 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; [and]
....
(O) [the parent has] failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department ... for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child[.]
TEX. FAM. CODE § 161.001(b)(1)(D), (E), (O). Father argues that the evidence at trial was legally insufficient to support any of those predicate grounds as well as legally insufficient to support the finding that termination of his parental rights was in J.W.’s best interest.
A. Failure to Comply with Service Plan
We first address Father's assertion that the evidence is legally insufficient to support termination under Subsection (O), which applies when a parent "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department ... for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child." Id. § 161.001(b)(1)(O). Father does not dispute that J.W. has been in the temporary managing conservatorship of the Department for not less than nine months as the result of his removal under Chapter 262. Nor does Father assert that the trial court's order incorporating the family service plan did not specifically establish the actions necessary for him to obtain J.W.’s return. Rather, Father contends that the Department "relied on things that were not actually part of his service plan to show noncompliance."
As discussed, Father completed several of his service-plan requirements, including establishing paternity, submitting to random drug testing, signing releases of records, maintaining a steady income, completing a parenting assessment, attending visits with J.W., and attending counseling. But he did not, according to the Department, "maintain a safe and stable home environment" or contact the Department at least twice a month. On the record before us, we agree with the Department that a reasonable juror could have formed a firm belief or conviction that Father failed to maintain a safe and stable home environment and thus failed to comply with the service plan.
We need not address the parties’ dispute about whether Father maintained insufficient contact with the Department.
Beginning with the condition of Father's home, which the Department visited shortly after J.W. was removed and again a few months before trial, two caseworkers testified in detail that the home was unsafe and unsuitable for a child. That testimony and the accompanying photographic evidence are described above, and, again, Father made no effort at trial to refute it. Instead, Father asserts that the Department was well aware of Father's plan to live elsewhere with J.W.—rendering the condition of his home "irrelevant" —and gave him no indication that it disapproved of his plan. Nor, Father asserts, did any Department witnesses testify that they thought Father was untruthful about his intentions. Father characterizes the evidence as demonstrating that he had a concrete plan for raising J.W. in a stable environment and that the Department secretly and subjectively determined that the plan was insufficient. The Department responds that the requirement to maintain a safe and stable home was not a prospective one and that at the time of trial, the intended safe and stable home "simply did not exist." The Department further contends that the jury was free to disbelieve Father's testimony that he intended to move out of the home in which he had resided for forty years or "to infer that his behavior of creating a hazardous home would move with him" to his next home.
Justice Blacklock's dissent concludes that Father did not waive the argument that his residence was in fact safe and stable. Post at 763 n.3 (Blacklock, J., dissenting). Regardless, the evidence supports the jury's contrary conclusion.
The record reveals that the jury was presented with ample evidence undermining the stability of Father's plans for raising J.W., including where Father intended to live, his ability to independently parent J.W., and the nature of his continuing relationship with Mother, whose parental rights the jury also found should be terminated. For example, Father testified that he and Mother never intended to raise J.W. in the home that the Department considered to be unsafe for a child and that they had always planned to move in with Taylor after he was born. But the testimony of both the caseworkers and Taylor suggests otherwise. Taylor testified that discussions about moving in with her began after J.W.’s removal, and conflicting evidence was presented as to whether Taylor withdrew from consideration as a placement earlier in the proceedings. Although she testified at trial that she was willing to allow Father and J.W. to move in with her, and Father testified that this was the plan, the Department still had not been permitted to inspect her apartment. At the time of trial, Father remained in the same home in which he had lived for forty years and had provided no indication that he could maintain any future residence in a manner safe for a child. Even the car in which he presumably intended to transport J.W. had a broken back windshield and too much trash inside to allow for a car seat.
Father's intentions regarding Mother's continued involvement in raising J.W. also remained murky at best at the time of trial, which was particularly concerning in light of Father's own statements of uncertainty regarding his ability to independently parent J.W. Mother and Father filed for divorce the week before trial and, according to one caseworker, Father reported that he had told Mother they needed to "wait until after this case was done" to consider having more children. Based on her observations, the caseworker testified that she "believe[d] a reasonable person would see that they're still in a relationship."
The Department also presented evidence that Father continued to downplay Mother's dependency issues and their impact on J.W. This included Father's participation in the incident at All About Recovery in which he attempted to assist Mother in faking a drug test during the pendency of the termination proceedings. Father's counselor testified that Father essentially believed whatever Mother told him, while Mother's psychological evaluation indicated she underestimates the scope and intensity of her problems. Smith also testified that Mother and Father were in a "very controlling relationship," as evidenced by Mother's refusal to allow him to speak to the caseworkers when they visited J.W. Mother and Father pointed to their impending divorce as evidence that Father wanted a fresh start with J.W. But other evidence described above indicated a lack of candor with the Department and the court: that they did not intend to separate, they were still in a relationship, and the divorce was "in name only."
Father's continued association with Mother was not inherently problematic so long as there was evidence indicating Father could ensure J.W.’s safety. But Father presented the divorce to the jury for just that purpose: to address the perception of his inability "to tell her no" given the Department's concern "about the people she would bring around, the people he wouldn't be able to protect not only himself from but also his child." Thus, if the jury believed the divorce was not genuine, then it both called Father's overall credibility into question and demonstrated that the divorce could not serve its purported purpose.
To be clear, we certainly do not hold that Father was required to divorce Mother in order to comply with the service plan, nor do we take the Department's position to be that Father could only maintain a safe and stable home environment for J.W. by getting a divorce. Rather, as noted, Father and Mother presented their pending divorce to both the Department and the jury as evidence that Father was willing and able to put J.W.’s needs above Mother's, and neither the Department nor the jury was persuaded. If Father was misrepresenting his intentions and the divorce was illusory, then other evidence was necessary to demonstrate Father's ability to protect the child. In other words, regardless of whether Father and Mother intended to live together after the conclusion of this litigation, Father was required to provide a safe and stable home for J.W., and the jury found that he did not. Had the jury been persuaded that Father would take adequate steps to ensure J.W.’s safety even if he and Mother continued to live together, the outcome may well have been different.
Nor were the Department's underlying concerns unjustified. Smith described a string of incidents ranging from a year before J.W. was born to the summer before the termination trial. The first incident occurred in April 2016 and involved a man named Mario Garcia, the same man Mother had once named as J.W.’s father on an application for government assistance and, according to Father, "a ten time felon." Father was forced to call law enforcement when Garcia would not leave his and Mother's home. About a week later, Mother texted Father that she was at a Walmart with Garcia and wanted Father to pick her up. When Father arrived, Mother would not leave with him, and law enforcement was called. Garcia told the police (falsely) that Father had been abusing Mother, and she said nothing; this led to Father's being arrested and spending the night in jail, as well as entry of a protective order that required him to leave the house for a brief period. Mother subsequently told the police she did not want to file charges, and the case was dismissed. A few months later, in August 2016, Father called law enforcement again when he discovered Mother had allowed Garcia back into their home and he "had a knife open." That incident was followed in March 2017—when Mother was eight months pregnant—by the above-described episode involving Mother's friend who had recently been released from jail and overdosed while staying in Mother and Father's home. And in the summer of 2018, after he and Mother had expressed their intent to get a divorce, Father again allowed a recently jailed friend of Mother's to stay in his home.
Father dismisses those events as "isolated incidents" that occurred "long before J.W. was born." We agree that Father's conduct before J.W. was born cannot demonstrate failure to comply with a service plan generated after he was born. However, those incidents—including the most recent that occurred the summer before trial—provide context for a pattern that continued throughout the termination proceedings. We cannot reject as unreasonable the Department's observation that those events, along with other evidence, are consistent with the opinion that:
[Father] shows a pattern of behavior of denial about the extent and the issues that [Mother] has even with his knowledge of her addiction issues with her mental health issues, the fact that she refuses to get help, the fact that there's a criminal element that's around who's involved with drugs, the fact that he can't seem to protect himself much less a child from the pattern of behaviors that she brings and he's not willing to address those.
The jury was thus presented with evidence supporting the Department's conclusion that Father had not maintained a safe and stable home environment, did not have a concrete plan for providing one for J.W., and had not taken practical steps to bring any such plan to fruition. Giving appropriate deference to the jury's resolution of conflicts in the evidence, including witness credibility, we hold that the jury reasonably could have formed a firm belief or conviction that Father failed to maintain a safe and stable home environment, as his service plan required, and thus "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department ... for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child." TEX. FAM. CODE § 161.001(b)(1)(O).
JUSTICE BLACKLOCK'S dissent accuses both the Department and this Court of relying on suspicion about Father's future actions and intentions rather than the actions he actually took with respect to maintaining a safe and stable home environment. Post at 760-62 (Blacklock, J., dissenting). In the dissent's view, the crux of the dispute is the availability of Taylor's clean and safe home, and the evidence points to no other possible conclusion than that Taylor's home was safe and available and that Father had maintained a consistent, concrete plan to utilize that home and then "explore moving to Fort Worth" with J.W. Id. at 764. We disagree on several fronts.
First, while the elevated burden of proof was certainly on the Department, the responsibility to weigh evidence, draw inferences, and evaluate witness credibility was on the jury. No one argues, and we do not hold, that the evidence conclusively establishes Father's failure to maintain a safe and stable home environment during the pendency of the proceedings, as the service plan required. The jury could have chosen, as the dissent does, to credit Father's and Taylor's testimony on the subject and to draw inferences in Father's favor. But the jury was not required to do so, particularly in the face of evidence that reasonably led it to discount that testimony.
To that end, the dissent argues that inconsistencies regarding whether Father ever intended to raise J.W. in his home, whether Taylor ever withdrew as a possible placement, whether the Department has inspected Taylor's home, and the current condition of Father's residence and vehicle have no bearing on whether Taylor's home is "presently available." Id. at 763-66. But these inconsistencies raise significant credibility issues—as to both Father and Taylor—regarding whether Father had an actual plan that he had taken actual steps to implement. Indeed, if nothing else, as JUSTICE BOYD'S dissent notes, the evidence that Father attempted to help Mother fake the results of a drug test (and his denial of the event) could reasonably have led the jury to doubt Father's entire testimony. Post at 758 (Boyd, J., dissenting); see In re J.F.-G. , 627 S.W.3d at 312 (holding that the factfinder remains "the sole arbiter of the witnesses’ credibility and demeanor"). Moreover, Father's specific testimony about his living situation was contradicted by, among other things, Department witness Kelly Allen's testimony that over the course of the proceedings, Father had given "numerous possible locations where he and [J.W.] will live, but has never made any steps to prepare these homes to live there." She continued that Father indicated on the Friday before trial that "he would be living possibly with [Taylor]" and that when the Department "asked to see the home he said the room still wasn't ready." Of course, "unready" does not necessarily equate to "unsafe," post at 764-65 (Blacklock, J., dissenting), but it is entirely consistent with the Department's view about the stability of the home Father planned to provide J.W.
The service plan required Father to "maintain," in the present, a "safe and stable home environment." While JUSTICE BLACKLOCK'S dissent opines that we must impermissibly speculate about Father's intent in order to conclude that he failed to do so, it is the dissent who ignores the evidence of Father's conduct throughout the proceedings (or at least, chooses to believe Father's account rather than the Department's) and instead speculates that Father will be able to provide a safe and stable home environment for J.W. in the future. On the record presented, drawing all credibility determinations and reasonable inferences in favor of the jury's verdict, rather than against it, the jury reasonably could have concluded by clear and convincing evidence that the only "home environment" Father had ever maintained was a residence that was unsafe for a child.
The dissent also discounts the evidence regarding Father's actions with respect to Mother as irrelevant to the requirement that he maintain a safe and stable home environment. Again, the dissent accuses us of speculating that Father will not provide a safe home environment in the future, but it is the dissent who engages in speculation. The jury heard evidence that Mother's own conduct contributed to making Father's home unsafe, that Father minimized her problems and could not "tell her no" (to the point that he helped her fake a drug test and reportedly assented to having more children with her after the "case was done"), and that Father was either unable or unwilling to put J.W.’s needs above Mother's. The dissent believes Father's testimony to the contrary; the jury did not.
The dissent's reductionist statement that Father's rights to his child were terminated because "he cares too much for his wayward wife" and "does not take out the trash" is certainly catchy, post at 772 (Blacklock, J., dissenting), but it does not come close to encapsulating the evidence that was presented to the jury over the course of the five-day trial. Courts may not overlook conduct that subjects a child to serious risks merely by characterizing it as conduct that supports a "wayward" spouse.
B. Best Interest
Father next argues that he is entitled to rendition of judgment because legally insufficient evidence supports the jury's finding that termination of his parental rights is in J.W.’s best interest. The best-interest prong of the termination inquiry "is child-centered and focuses on the child's well-being, safety, and development." In re A.C. , 560 S.W.3d 624, 631 (Tex. 2018). We have identified several nonexclusive factors that guide the inquiry, including: (1) the desires of the child; (2) the child's emotional and physical needs now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parenting abilities of the individuals seeking custody; (5) the programs available to assist those individuals to promote the child's best interest; (6) the plans for the child by those individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's acts or omissions that may indicate the existing parent–child relationship is improper; and (9) any excuse for the parent's acts or omissions. Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976). The jury charge listed these factors for the jury's consideration in determining J.W.’s best interest.
In holding the evidence was sufficient to support the best-interest finding, the court of appeals noted that: J.W. has been with his foster family since he was released from the hospital; his physical and emotional needs are being met by the family, who plan to adopt in the event the parents’ rights are terminated; the foster parents have a family support system; the jury heard evidence that Father is not able to place J.W.’s needs above Mother's and that he allows Mother to control him; since getting involved with Mother, Father has allowed persons to live in his home who abused drugs and was arrested after the incident with Mother and Garcia; and evidence was presented indicating that the divorce, which Father himself presented as a justification for maintaining his parental rights, was "in name only." 627 S.W.3d at 673.
Father notes the undisputed evidence that he has an upstanding character, volunteers, helps people in need, is even-tempered and patient, and has a solid support system of family and friends. As to the Holley best-interest factors, Father summarily asserts that the only factor now weighing in favor of termination is the length of time J.W. has been with a foster family with whom he should never have been placed. On a more general level, Father asserts that " ‘[l]ack of protectiveness’ has become a problematic mantra ... to justify cutting off children from their parents and village of family and caregivers in favor of unrelated placements" and that the Department failed to meet the stringent requirements necessary to justify placing a child in an unrelated home rather than with parents or a kinship. See TEX. FAM. CODE §§ 261.307, 262.1095, 262.114(d). Father continues that this rejection of any possible kinship placement "based on unfounded fears Mother may attempt to interject herself into his life at some point (while ignoring that J.W. has a loving parent and is fortunate enough to have a village of extended family and fictive kin that would support him), is the antithesis of the child-centered focus of the best-interest inquiry."
As an initial matter, we disagree with Father's premise regarding J.W.’s placement and note that Father did not seek relief from the trial court's temporary order following the initial adversary hearing, in which the trial court found that J.W. should not be returned to his parents. See id. § 262.201(g) (requiring the trial court, at the conclusion of a full adversary hearing following a child's emergency removal, to return the child to the parent unless sufficient evidence shows, among other things, that "there is a substantial risk of a continuing danger if the child is returned home"); see also In re T.M. , No. 14-20-00703-CV, 2021 WL 865363, at *4–5 (Tex. App.—Houston [14th Dist.] Mar. 9, 2021, orig. proceeding) (granting mandamus relief from the trial court's order declining to return the child to the parents due to insufficient evidence of the court's findings under Section 262.201(g)). Moreover, Father overstates the evidence that he claims demonstrates a vague and unsupported "lack of protectiveness" justification for any placement suggested by the parents.
As to Father himself, caseworker Gresset testified that when J.W. was removed, Father informed the Department he did not think he could independently parent J.W. at that time, and Gresset was concerned about Father's expressed lack of knowledge about Mother's substance abuse. As the investigation continued, the Department discovered additional information, described above, regarding the condition of Father's home, the risks posed by Mother's presence, and the status and nature of Mother and Father's relationship. Father faults the Department for failing to explain why it did not consider or conduct a home study on his family in Fort Worth, but he wholly disregards Gresset's testimony that the family members took themselves out of consideration as placements for J.W. With respect to Mother's sister, the Department's home study raised concerns about her ability to meet a child's needs, and a caseworker testified that she too withdrew her name from consideration as a placement. Finally, the Salas family was ruled out because of concerns about a romantic relationship between Mother and a member of the Salas household. Moreover, Mrs. Salas testified that Mother had been living with them for a little over a year at the time of trial, and we cannot fault the Department for declining to place J.W. with Mother.
Importantly, given the child-centered focus of the best-interest inquiry, we may not discount or minimize the level of permanence J.W. has achieved with his foster family, with whom he has lived since he was a month old. We will not recount the above-described evidence in detail, but the same evidence that supports termination of Father's rights under Subsection (O) also supports the best-interest finding. See In re J.F.C. , 96 S.W.3d at 275 (noting that "most of the evidence relevant to the best interest of the children was also relevant to the grounds for termination based on the parents’ conduct set forth in the charge"). Considering the evidence in the light most favorable to the jury's best-interest finding, we agree with the court of appeals that the evidence is legally sufficient to support that finding.
We certainly do not condone or make light of the potential, highlighted by Father, for the Department to summarily dismiss all kinship placement options in a "quest to punish a parent" rather than serve the best interest of the child. Such behavior threatens to unjustifiably invade a parent's due process rights and would violate both federal and state law. See 42 U.S.C. § 671(a)(19) (requiring states, as a condition of eligibility for federal funding, to consider giving preference to an adult relative over an unrelated caregiver when determining a placement for a child, "provided that the relative caregiver meets all relevant State child protection standards"), (29) (requiring the State to notify certain relatives about the child's removal and possible participation in the child's placement); TEX. FAM. CODE §§ 261.307(a)(2)(A)(ii) (requiring the Department, if it determines removal may be warranted, to provide the parent a proposed child-placement resources form to identify potential relative or other designated caregivers), 262.114(d) (requiring the Department to give preference to the child's relatives in making a placement decision). However, we cannot conclude on the record before us that that is what happened here.
C. Endangerment
Although legally sufficient evidence supports the Subsection (O) ground and best interest, and only one predicate ground is necessary to support a judgment for termination, In re A.V. , 113 S.W.3d at 362, we may not bypass Father's evidentiary challenges to Subsections (D) and (E), the so-called endangerment grounds. Those grounds bear special significance because termination of a parent's rights under either can serve as a ground for termination of his rights to another child. TEX. FAM. CODE § 161.001(b)(1)(M) ; see In re N.G. , 577 S.W.3d at 237 (holding that due process mandates appellate review of Subsection (D) and (E) findings when the parent has preserved the issue regardless of whether the termination judgment could be affirmed on another ground). Further, Father argues that if legally insufficient evidence supports any one termination ground, the case must be remanded for a new trial because the trial court erroneously submitted a broad-form termination question, to which Father objected, and we thus cannot determine from the charge whether the jury terminated his rights on an invalid ground. Accordingly, we next address the evidence of endangerment.
We have said that to "endanger" means "to expose to loss or injury; to jeopardize." Tex. Dep't of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987). Although " ‘endanger’ means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment," it does not require that there be conduct "directed at the child" or that "the child actually suffer[ ] injury." Id. The court of appeals held that the evidence was sufficient to support the endangerment grounds because it showed that Mother used illegal substances while pregnant with J.W., Father was aware of her dependency issues but exhibited a pattern of denial and minimization of those issues, and Father was unwilling to address the danger Mother posed. 627 S.W.3d at 672. We begin with Subsection (D), which focuses on the child's environment and may be utilized as a ground for termination when the parent has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." TEX. FAM. CODE § 161.001(b)(1)(D) ; see In re E.M. , 494 S.W.3d 209, 221 (Tex. App.—Waco 2015, pet. denied) (noting that Subsection (D) "permits termination if the petitioner proves parental conduct caused a child to be placed or remain in an endangering environment"). While we have had little occasion to address Subsection (D), the courts of appeals have held that the relevant time frame for evaluating this ground is before the child's removal "since conditions or surroundings cannot endanger a child unless that child is exposed to them." E.g., In re O.R.F. , 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) ; see also In re R.S.-T. , 522 S.W.3d 92, 109 (Tex. App.—San Antonio 2017, no pet.) ; In re J.A.J. , 225 S.W.3d 621, 627 (Tex. App.—Houston [14th Dist.] 2006) (noting that under Subsection (D), "it must be the environment itself that causes the child's physical or emotional well-being to be endangered"), rev'd in part on other grounds , 243 S.W.3d 611 (Tex. 2007). As a general matter, we agree with that reasoning. The suitability of a child's living conditions and the conduct of parents or others in the home are relevant to a Subsection (D) inquiry. In re R.S.-T. , 522 S.W.3d at 108–09. Moreover, evidence that a parent will knowingly expose the child to a dangerous environment in the future, while relevant to a best-interest determination, is not proof that the parent has knowingly exposed the child to a dangerous environment in the past for Subsection (D) purposes. In re J.R. , 171 S.W.3d 558, 570 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
To the extent the courts of appeals hold that a parent could never cause his child to be placed in an endangering environment after removal, we disagree, as we cannot foreclose the possibility that Subsection (D) could apply post-removal depending on the facts. But typically, a parent whose child has been removed and who has only supervised visitation has no control over the child's environment, and the parent's conduct during that time will thus be unrelated to Subsection (D).
In this case, J.W. was hospitalized immediately after his birth, and he was removed and placed with an unrelated foster family upon his discharge from the hospital. Both Mother and Father have had only supervised visits with him since his birth and have had no say in his living conditions. Accordingly, to support the jury's Subsection (D) finding, the Department necessarily relies on Father's role in J.W.’s "environment" before he was born. Certainly, Mother's use of controlled substances while pregnant created a dangerous environment for J.W., but the extent to which Father bears responsibility for that environment is a much more difficult question.
While we have not yet addressed this issue, several courts of appeals have held that a parent's knowledge of the other parent's drug use during pregnancy and corresponding failure to attempt to protect the unborn child from the effects of that drug use can contribute to an endangering environment and thus support an endangerment finding. See, e.g., In re H.M.J. , No. 06-18-00009-CV, 2018 WL 3028980, at *5 (Tex. App.—Texarkana June 19, 2018, no pet.) (affirming Subsection (E) finding where the father was aware of the mother's drug use during pregnancy and the effects it could have on the child's well-being, and neither reported her to the Department or the police nor made an effort to ensure that she received substance-abuse treatment); In re J.W.S. , No. 06-14-00018-CV, 2014 WL 3013352, at *6 (Tex. App.—Texarkana July 2, 2014, no pet.) (holding that the evidence was sufficient for the trial court to find endangering conduct where the father knew of the mother's drug use during the pregnancy but did nothing to stop it). We agree, as holding otherwise would effectively endorse a parent's willful ignorance of the significant risk that a pregnant mother's drug use poses, which we decline to do. But neither do we endorse attributing any and all known dangers posed to a child during the mother's pregnancy to the other parent. As is often the case in parental-termination proceedings, the inquiry is necessarily dependent on the facts and circumstances.
Of course, if a parent actively participates in creating or maintaining a dangerous environment during the pregnancy, e.g., does drugs with the pregnant mother, encourages her drug use, or supplies drugs, we see no reason why such conduct would not qualify as endangerment under Subsection (D). That is not the kind of conduct at issue here.
Indeed, Father does not disclaim all responsibility for J.W.’s well-being during Mother's pregnancy; rather, he posits that the above-described cases imputing endangering conditions or conduct involving drug use by one parent to the other "involve the opposite of this case, i.e., where the parent knows that another parent's drug use might be endangering but does nothing to help." Here, Father asserts, he "did everything he could to assist pregnant Mother in her quest [to] overcome addiction."
Whether or not Father did "everything he could," he made what can only be described as a concerted effort to help Mother address her addiction under the circumstances. When Mother informed him of her problem, he searched extensively for a facility that would accept pregnant women, only for Mother to unexpectedly leave the facility before completing the program. When she returned to Texas, Father had already begun a work-related project in Houston, and she initially joined him until his hours escalated considerably. After completing the project, Father again searched for a facility for Mother and, when she was accepted to the methadone clinic, drove her from College Station to Houston every day for several weeks to receive treatment. On this record, the jurors may have reasonably concluded that Father could have better handled the difficult situation into which he was thrust by Mother's addiction, but they could not have reasonably concluded by clear and convincing evidence that Father disregarded his parental obligations to the degree that he knowingly "allowed" J.W. to be placed or remain in a dangerous environment.
Unlike the evidence relating to Subsection (O), which hinged largely on credibility determinations in the face of conflicting evidence, the evidence relating to Subsection (D) was straightforward and conclusively insufficient to justify termination on that ground. Because legally insufficient evidence supports the jury's finding that Father's rights should be terminated under Subsection (D), the trial court erred in submitting that invalid ground to the jury. We thus turn to the effect of that error on the termination judgment's viability.
D. Broad-Form Submission
Father argues that in light of his objection to the submission of all three predicate grounds in a broad-form jury question, legally insufficient evidence of any one ground requires reversal and remand for a new trial. He cites Harris County v. Smith , in which we held that the trial court erred by submitting a broad-form question on damages that included an element without any evidentiary support. 96 S.W.3d 230, 231 (Tex. 2002). Our holding in Harris County followed Crown Life Insurance Co. v. Casteel , in which we held that "[w]hen a single broad-form liability question erroneously commingles valid and invalid liability theories and the appellant's objection is timely and specific, the error is harmful when it cannot be determined whether the improperly submitted theories formed the sole basis for the jury's finding." 22 S.W.3d 378, 389 (Tex. 2000). Applying Casteel , we held that the charge error in Harris County was harmful because, under the circumstances, the appellate court was prevented "from determining ‘whether the jury based its verdict on an improperly submitted invalid’ element of damage." 96 S.W.3d at 234 (quoting Casteel , 22 S.W.3d at 388 ).
Again, the jury was instructed that in order to terminate, it had to find by clear and convincing evidence that "at least one" of the three statutory grounds was satisfied and that termination was in J.W.’s best interest.
Here, the broad-form charge erroneously, and over Father's objection, commingled a valid termination ground supported by sufficient evidence (Subsection (O)) with an invalid termination ground supported by legally insufficient evidence (Subsection (D)). We reaffirmed in Harris County that the right to a fair trial includes "a jury properly instructed on the issues ‘authorized and supported by the law governing the case.’ " Id. (quoting Casteel , 22 S.W.3d at 389 ). In a case involving termination of parental rights, the " ‘death penalty’ of civil cases," the importance of safeguarding a parent's right to a fair trial is even more pronounced. In re K.M.L. , 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring).
We held in In re A.V. that even in a parental-termination case, an objection in the trial court is required to preserve error based on broad-form submission. 113 S.W.3d at 363.
Recent revisions to our jury-charge rules in the context of parental-termination proceedings highlight these concerns. Generally, our rules require submission of broad-form questions to the jury "whenever feasible." TEX. R. CIV. P. 277. Applying this rule, we held in Texas Department of Human Services v. E.B. that a broad-form parental-termination question, rather than separate questions for each statutory termination ground, is permissible. 802 S.W.2d 647, 649 (Tex. 1990). In 2020, we amended Rule 277 to overrule E.B. and require the trial court, in a parental-termination case, to "submit separate questions for each parent and each child on (1) each individual statutory ground for termination of the parent–child relationship and (2) whether termination of the parent–child relationship is in the best interest of the child." TEX. R. CIV. P. 277. Under the amended rule, a broad-form termination question is error regardless of the evidentiary support for a particular ground.
The amended rule does not apply here because the case was tried in 2018. However, it underscores the need to ensure that a parent's rights to his child are terminated only on a valid ground supported by the evidence. Because we cannot determine here whether the jury based its verdict on an improperly submitted termination ground, we must reverse the court of appeals’ judgment and remand for a new trial. As noted, the judgment of termination is final as to Mother, so the sole focus of the new trial on remand will be whether Father's parental rights should be terminated.
We express no opinion on the sufficiency of the evidence to support the Subsection (E) ground and leave it to the trial court to determine in the first instance whether that ground should be resubmitted to the jury.
IV. Conclusion
We hold that legally sufficient evidence supports one of the statutory grounds for termination (Subsection (O)) and the jury's finding that termination was in J.W.’s best interest. Accordingly, Father is not entitled to rendition of judgment. However, we also hold that the termination question was erroneously submitted to the jury in broad form, such that the jury could have terminated Father's rights under an invalid and unsupported ground (Subsection (D)). We reverse the court of appeals’ judgment as to Father and remand the case to the trial court for a new trial.
Justice Young filed a concurring opinion.
Justice Boyd filed a dissenting opinion.
Justice Blacklock filed a dissenting opinion, in which Justice Devine and Justice Busby joined.
Justice Young, concurring.
Three vigorous opinions—the detailed opinion of the Court and two dissents—debate the resolution of Father's appeal in this parental-rights-termination case. The Court reverses the termination and remands for a new trial. One dissent argues that the Court has not gone far enough; the other contends that the Court has gone too far.
On the surface, these contending opinions suggest that the Court is hopelessly divided. My additional separate writing does not aim to deepen the seeming division with yet a fourth approach. Quite the opposite: I write to suggest that the disagreements are largely (not entirely, but largely) limited to the outcome of this single case. Thus, while I join the Court's opinion and its judgment, I also agree with much of the legal analysis in both dissents. Indeed, I see nothing in the Court's opinion that contradicts the positions that our dissenting colleagues put forth with such vigor.
My purpose, therefore, is to enumerate several core principles that I believe emerge from this case's various opinions. These eight principles are of great importance for the many other cases that involve whether parental rights may be terminated.
First , I begin with the premise that our law recognizes the parent-child relationship as sacred: "This natural parental right [is] a basic civil right of man[ ] and far more precious than property rights." In re A.M. , 630 S.W.3d 25, 25 (Tex. 2019) (Blacklock, J., concurring in the denial of review) (quoting Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) ). No wonder, therefore, that governmental interference in that relationship faces scrutiny and limits under the U.S. Constitution and our State's Constitution and statutes. Most parents would gladly give their lives for their children; many, alas, have had to do so. Most parents would also stake their lives on what the U.S. Supreme Court has called "the right, coupled with the high duty," to oversee their children's growth and development. Pierce v. Society of Sisters , 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).
See, e.g., Troxel v. Granville , 530 U.S. 57, 72, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (holding that a fit custodial parent has a fundamental right concerning the "care, custody, and control" of her children); In re C.J.C. , 603 S.W.3d 804, 806–08, 811–14 (Tex. 2020) (describing federal and Texas authorities that address parents’ fundamental rights to direct their children's upbringing).
See, e.g. , Tex. Est. Code § 201.056 (protecting the "right of inheritance" for persons "in gestation at[ ] the time of the intestate's death"); Tex. Health & Safety Code § 171.203(b) (prohibiting physicians from knowingly "perform[ing]" or "induc[ing]" abortions if an unborn child's "fetal heartbeat" is detectable); Tex. Occ. Code § 164.052(a)(16) (authorizing disciplinary action against medical licensees who perform "criminal abortions"); Tex. Penal Code § 1.07(a)(26) (defining "Individual" as "including an unborn child at every stage of gestation from fertilization until birth").
At trial, the Department requested that it be referred to as "the Department" or "CPS," but not as "the State" or "the government." The court granted that request. I cannot imagine why calling the Department exactly what it is—the government—could be objectionable. In any event, we need not abide by that restriction. "The government" and "the Department" are used interchangeably here.
Second , however, the very sanctity of the parent-child relationship entails the need for an escape hatch if things go terribly wrong. Parents typically can be counted on to move heaven and earth to protect their children, which is a key reason that parental relationships warrant such respect. Who could better judge what serves a child's best interests than a fit parent? For this reason, breaching the ancient obligation that a parent has to a child is among the most serious breaches of trust imaginable. When such a violation is proven, the law deems a parent to have renounced his or her status as a parent. The average Texan would be shocked by the tragic volume of such cases that our courts see.
It is not easy to prove such a breach. See ante at 742 (describing the heightened burden of proof and standard of review required to terminate parental rights). Every benefit goes to the accused parent, which risks subjecting a child to someone unfit to care for her. But it also protects her by ensuring that she will not wrongly be deprived of a relationship with a fit parent. Thus, only the truly unfit will be subject to what Justice Lehrmann has aptly called "the ‘death penalty’ of civil cases." In re K.M.L. , 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring).
See, e.g. , Tex. Fam. Code § 160.756(b)(2) (requiring that surrogate gestational agreements include medical evidence showing the intended mother can carry the pregnancy to term "without unreasonable risk ... to the unborn child").
The service plan became effective when entered by court order on July 12, 2017. A second service plan was filed on August 3, 2017. Father was required under the service plan to submit to random drug testing, establish paternity, maintain a steady income, sign releases of records, attend supervised visits, undergo a parenting assessment, and maintain a crime-free lifestyle. There is no dispute that Father fulfilled every single one of these requirements. The Department waived various other requirements that it found were unnecessary.
Said another way, parents are immeasurably better equipped than any bureaucracy to order their children's affairs. But when a parent crosses a line—defined through legislative enactments pursuant to constitutional limitations and upon a jury's finding—the courts will recognize that a parent has relinquished his entitlement to the honor of the rights of parenthood. Such a change in status is never anything less than a tragedy, but our society recognizes that it is sometimes necessary.
Third , one parent's rights may not be terminated for another's failure. In this case, the joint trial of Father and Mother may well have made it difficult for the jury to fully distinguish between the two parents. On remand, Mother will not be a co-defendant; she has allowed the judgment that terminated her parental rights to become final. Mother's problems will be refracted through a far different lens this time around—not whether those problems exist, but whether Father can adequately protect J.W. from any threat posed by Mother. The focus will be on Father. It is one thing if Father cannot protect J.W. from Mother; but Mother ’s inability to protect J.W. will no longer be a central question.
To be clear, the joint trial was not itself a ground for a reversal—other errors provide the basis for today's decision. But the remand for a trial of Father alone will have the salutary consequence of ensuring that he is judged on his own, and not tarred with Mother's sins.
See id. § 161.001(b)(1)(H) (authorizing termination where a father knowingly abandons a pregnant mother), (R) (authorizing termination where a parent causes their child to be "born addicted to alcohol or a controlled substance").
The Court notes that Father did not refute the evidence regarding the cluttered state of his home and that Father stated it was "irrelevant" because he had an alternative home available. Ante at 742. I would not construe this as a waiver of the argument that Father's primary residence was safe and stable. If the evidence put on by the Department was inadequate to show it was unsafe, then Father need not have put on additional evidence or refute that of the Department to show its safety and stability. Because I would hold that the service plan was satisfied by a safe, stable, and presently available alternative home, I do not assess the legal sufficiency of the evidence regarding Father's "cluttered" primary residence.
Thus, Mother will hardly be irrelevant in the new trial, but neither will her inadequacies dominate it. The trial court should be careful to ensure that Father's rights—and his duty to J.W.—are not invaded on account of Mother's failings. As Justice Blacklock puts it, Father "should not lose his son because of his wife's failings," and "it is Father's rights at stake, and he must be judged by his actions, not hers. " Post at 760, 771.
Fourth , neither the State nor the courts may penalize one spouse for assisting the other or taking the other's side, as long as such otherwise-praiseworthy conduct does not harm the child. In this case, Father clearly went to great lengths to help Mother. He appears to have repeatedly turned the other cheek and seems desperately to have wanted the best for Mother, including her restoration to full physical and mental health. Even if his choices were not always wise, they seem largely to have flowed from a genuine desire to maintain a united family and to serve his wife as any husband should. Surely it would be better, as a general matter, if more spouses sought to honor their promises to each other, even in arduous circumstances that present dilemmas that none of us would wish to face.
In any event, it is not for the government to instruct married couples about their relationships. Our law also regards the matrimonial bond as sacred. One spouse generally cannot be compelled to testify against the other even in aid of criminal prosecution. Tex. R. Evid. 504. But this principle, too, has its legal limits—and not just in Rule 504 ’s exceptions. As relevant here, some probative evidence could have allowed the jury to conclude that Father's support for his wife—a virtuous intention—nonetheless trespassed into his duties to J.W.
The only relevant question, though, remains whether Father could (and did) protect J.W. , not whether Father was more pliant in his attempts to aid his wife than the government might like. It is crucial that these questions remain wholly distinct. On remand, I am confident that the court will not allow confusion of the two points, and indeed will ensure that the focus remains on the former, not the latter.
Fifth , and relatedly, the government does not and may not advocate, seek, prefer, or reward divorce. Some testimony in the record may suggest, at least when read in isolation, that the State's agents were disappointed at the thought of the marriage surviving. It is worth restating another ancient principle: Divorce is an evil—one that our law allows in recognition of adults’ freedom to make their own choices, and one that sometimes may be inevitable in light of the frailties of human nature. Occasionally it may even be the far lesser evil. But it is never something to celebrate or encourage. Justice Blacklock reads the record as reflecting that the government sometimes "expects people to sever their bonds of marriage in order to prove their ‘protectiveness.’ " Post at 768. His reading of the record is by no means baseless. One true benefit of a new trial is the assurance that no whiff of such an attitude will be repeated. The Court in no way endorses any such position, here or elsewhere.
Even aside from the historic respect that the institution of marriage generally warrants under our law, in the child-protection context, there are reasons to think (with full recognition of unfortunate exceptions) that successful outcomes for children are more likely to follow from preserving their parents’ marriages when possible. See, e.g. , Bram Hogendoorn, et al., Divorce and Diverging Poverty Rates: A Risk-and-Vulnerability Approach , 82 J. Marriage & Family 1089 (2020).
See, e.g., In re H.R. , 87 S.W.3d 691, 699 (Tex. App.—San Antonio 2002, no pet.) (concluding sufficient evidence supported termination under subsection (P) because mother used a controlled substance in a manner that endangered her unborn child).
In fact, when counsel for Father represented at argument that CPS had approved Taylor's home for the child to live in, counsel for the Department did not contest that assertion, even when expressly asked if the Department disagreed. Counsel for the Department then said he may need to "step back" and said he was "not sure." He never followed up with the Court about the matter.
I conclude that the government's position—despite some unfortunate articulations of it—did not cross the line. As I understand the record, there is some confusion about whether the divorce between Father and Mother was genuine. The parents’ purported divorce was at least arguably an effort to distract from what the State should legitimately address—the obligation to keep J.W. safe. Any doubt about what the government may legitimately target should be dispelled. Father has never had any obligation to divorce Mother. His obligation, in defending himself in a parental-rights-termination case, is to show that his child will be safe. If Father cannot show his ability to ensure J.W.’s safety while being married to (or otherwise associated with) Mother, and if Father then uses a purported divorce to persuade the government and the courts that the risk to J.W. has disappeared, then his lie about divorce is quite relevant to the true issue—J.W.’s safety. See ante at 743-44, 743 n.10.
Here, the concern was that Father would be unable "to tell [Mother] no" and thus prevent J.W.’s exposure to all the things that follow from that inability. Demanding divorce exceeds the government's authority—but if there was a lie about divorce that sought to cover such an inability, the lie is not something that a jury would have to ignore or that we should excuse.
Sixth , as the Court properly acknowledges, the courts must hold the bureaucracy in check. Bureaucratic decisions premised on arbitrary or improper considerations always pose risks. But the stakes here—the future of small children and of families—are dramatically higher than in most administrative cases, and the courts must subject the State's contentions to genuine scrutiny rather than the scrutiny of the rubber stamp. Nothing in any opinion today retreats from our longstanding commitment to elevated thresholds of proof and judicial review.
See, e.g., ante at 748 ("We certainly do not condone or make light of the potential ... for the Department to summarily dismiss all kinship placement options in a ‘quest to punish a parent’ rather than serve the best interest of the child. Such behavior threatens to unjustifiably invade a parent's due process rights and would violate both federal and state law.").
Section 161.001 allows termination if clear and convincing evidence establishes at least one of twenty-one predicate grounds and that termination of the parent-child relationship is in the child's best interest. Tex. Fam. Code § 161.001(b). When addressing section 161.001(b)(1), we have generally avoided navigating the imprecision between subsection (D)’s endangering "conditions" and subsection (E)’s endangering "conduct" by tacitly conflating the two and finding generic "endangerment" without specifying the statutory ground. See, e.g., In re S.M.R. , 434 S.W.3d 576, 585–86 (Tex. 2014) (simultaneously analyzing (D) and (E)—"the endangerment grounds"—and affirming termination order without stating which ground applied); In re M.C. , 917 S.W.2d 268, 269–70 (Tex. 1996) (per curiam) (quoting both (D) and (E) before holding evidence of endangerment was legally sufficient without specifying whether (D), (E), or both applied). We have previously held that subsection (E) protects unborn children from dangerous conduct, whether by their fathers or their mothers. See In re J.O.A. , 283 S.W.3d 336, 345–46 (Tex. 2009) (affirming subsection (E) termination of rights of father who used drugs daily and committed domestic violence against mother during her pregnancy because "endangering conduct may include the parent's actions before the child's birth"). We may need to distinguish the two subsections in some future case, but we need not do so to decide this case. Any statutory imprecision that blurs the line between (D) and (E) does not foreclose the conclusion that a father may "place" an unborn child in dangerous conditions through his dangerous conduct. See In re R.S.-T. , 522 S.W.3d 92, 109 (Tex. App.—San Antonio 2017, no pet.) ("[P]arental conduct can be a factor that contributes to environment."); see also In re R.S. , No. 12-21-00029-CV, 2021 WL 2816403, at *5–6 (Tex. App.—Tyler June 30, 2021, no pet.) (affirming termination of father's rights under both (D) and (E) based, in part, on father's drug use with mother during mother's pregnancy).
The caseworker spoke with Father, not Taylor. According to the caseworker, Father said that Taylor might not be answering because she was not finished preparing the home yet. But the caseworker also recounted in that same conversation that Father had been at Taylor's home cleaning it up, and that he thought it would be ready within the next week. Thus, while there is some possibility that the home was not move-in ready, that does not mean that it was unsafe. And the caseworker's testimony undermines the Court's assertion that Father "had not taken practical steps to bring any such plan to fruition." Ante at 744.
See also, e.g., In re A.M. , 630 S.W.3d 25, 26 (Tex. 2019) (Blacklock., J.) (concurring in denial of review) (cautioning against use of improper evidence as basis to interfere with parental rights); In re E.R. , 385 S.W.3d 552, 555 (Tex. 2012) (reversing court of appeals’ judgment for failing to show that parent had constitutionally adequate notice of proceedings).
For the reasons the Court explains, see ante at ––––, I agree the evidence here sufficiently supports the jury's findings that Father failed to comply with his service plan under subsection 161.001(1)(b)(O) and that termination is in the child's best interest.
Some variant of the word "clutter" makes twenty-nine appearances in the Department's brief. This pales in comparison to the testimony at trial, wherein it makes well over sixty appearances—the apotheosis of which is captured in the exchange between counsel for Father and the Department's investigator about Father's home:
Q: And you said that this home was different because it was -- the clutter. You didn't find any feces laying around?
A: That's correct.
Q: You didn't find any spots you thought might be urine?
A: That's correct.
Q: You didn't find cockroaches, ants, black beetles, none of that?
A: That's correct.
Q: You didn't find any drug paraphernalia laying around?
A: As I stated, it was different due to the amount of clutter.
Q: Okay. No knives or guns laying around?
A: As I stated, it was different due to the amount of clutter.
Q: Okay. So it was just the clutter?
A: Correct.
Seventh , jury verdicts are entitled to basic respect because they provide another check on improper terminations. The use of the jury, which is instructed to follow stringent requirements of proof, is yet another protection for the parent. But the jury's authority requires us also to accept the standard of review in which the evidence must be seen in a light favorable to the verdict. Thus, while I again agree with much of Justice Blacklock's eloquent dissent and find his presentation of the record to be very persuasive, I cannot agree that the evidence summarized by the Court is utterly incapable of supporting the verdict.
But the Court's disposition favors Father—it properly insists that Father have a chance to make his case to a new jury in a proceeding shorn of the errors that infected his first trial. This is part of why I believe that the distance between the Court and Justice Blacklock—while certainly real—is not as great as it might first seem. Indeed, Justice Blacklock recognizes today's decision as "a victory of sorts for Father," even as he concludes that Father "is entitled to more." Post at 760. Perhaps even the government will conclude that a new trial is not needed. Either way, though, in light of the evidence presented at trial, the "victory" that Father has won is as much as we are authorized to afford him.
Eighth , the law is not blind to how a father treats the unborn, and a father's conduct before a child's birth may well justify (or help in justifying) the termination of his parental rights. I thus largely agree with the premise of Justice Boyd's dissent. But at the same time, to subject Father to the loss of his parental rights based on what happened during the pregnancy would require far more than the record here shows. Father's unwillingness or inability to control Mother during her pregnancy is different in kind from the sort of affirmative acts of harm toward either a mother or child during pregnancy that would justify terminating his rights on that ground. I agree with the Court, ante at 745, and Justice Blacklock, post at 772 n.22, that Justice Boyd's bottom-line conclusion is mistaken in this case, even if there is general agreement that the law may and indeed should hold a father accountable for conduct before his child's birth. Indeed, Father seems to have genuinely desired his wife to be free of the scourge of drugs and appears to have done everything he could, following his best lights, to help her. But it was Mother, and not Father, who made the relevant choices.
Justice Boyd does not stand alone in seeing the law's protection of children—or its demands on the obligations of parents—to reach the period before a child's birth, in other words. He only stands alone (as far as I can see) in thinking that in this case a reasonable juror could have concluded that Father's conduct during the pregnancy rose to the extreme level warranting termination under both grounds D and E (the latter of which the Court need not even reach). But a disagreement on the legal sufficiency of the evidence in a given case does not equate to a disagreement on the core legal principle that governs all cases.
* * *
Father should take "yes" for an answer. He is getting everything he ought to get—a trial that is free from unfair taint (he will be tried alone, as Mother's termination is final); a trial that is free from legal error (he will receive granulated questions so that the courts may ensure that a verdict relies on sufficient evidence); and a trial in which he may freely put forth (or rebut) evidence to defeat the State's case. Ante at 751-52.
With these observations, I join the Court's opinion and judgment, confident that the law is simultaneously protecting parental relationships and ensuring that the courts may act if the obligation that a parent has to a child falls below what the law requires.
Justice Boyd, dissenting.
Texas law protects unborn children through a diverse array of statutes, ranging from the Estates Code to the Penal Code.1 The Family Code is no exception,2 including—as the Court affirms today, ante at ––––— section 161.001, which authorizes courts to terminate a parent-child relationship. Of the twenty-one predicate grounds that section 161.001(b)(1) provides for termination, two explicitly protect children from harm they may face before they are born,3 and others at least implicitly do the same.4 What should not get lost in today's decision is the Court's important holding that Family Code section 161.001(b)(1)(D) protects unborn children from dangerous conditions caused by their parents. Ante at ––––.5
Unfortunately, the Court then guts that protection in this case by ignoring evidence of such endangerment.6 As the Court acknowledges, the inquiry into whether a parent endangered his unborn child "is necessarily dependent on the facts and circumstances" in each case. Ante at 750. And in this case, at least some evidence established that Father repeatedly minimized, denied, and enabled Mother's conspicuous and continuous drug use throughout her pregnancy, which undoubtedly made her womb a dangerous environment for the child. See In re J.W.S. , No. 06-14-00018-CV, 2014 WL 3013352, at *6 (Tex. App.—Texarkana 2014, no pet.) ("Endangerment can ... include knowledge that a child's mother abused drugs," such as when father "was aware" of mother's drug use and "chose to look the other way instead of forcing [her] to seek help." (citation omitted)). As the court of appeals noted, at least some evidence established that Father "was aware of [Mother's] problems with illegal substances" during her pregnancy and "was untruthful" with the Department about her addiction, "exhibit[ing] a pattern of ... denial about the extent" of her addiction and "minimiz[ing] her substance abuse problems." 627 S.W.3d 662, 670, 672 (Tex. App.—Waco 2019).
For example, some evidence established that Father permitted Mother's "friend," who was recently released from prison, to stay in their home while Mother (who herself was, at that time, a recovering drug addict at best) was eight months pregnant with the child, and that this friend "overdosed on something" and required emergency medical care while staying in their home. See In re B.R. , 822 S.W.2d 103, 107 (Tex. App.—Tyler 1992, writ denied) (holding that inappropriate or unlawful conduct by persons living in a home with the child is part of the child's "conditions or surroundings" within the ambit of (D)). Father explained that he didn't want Mother's "friend" to stay in their home but allowed him to stay because Father "didn't have the heart to tell [Mother] no."
And as Father acknowledged, Mother left a drug-rehab facility around her fourth month of pregnancy, before she completed the program, because the facility "wouldn't let her take" promethazine with codeine, an opiate. Yet Father left Mother alone for much of the next three months—most of the child's second trimester—knowing that she rejected further treatment and did so for that reason.
To be sure, Father testified that he was away from Mother during that time due to necessary work-related travel, and generally claimed that he did all he could reasonably do to protect the child. And in determining whether legally sufficient evidence supports the jury's finding, we must consider that (and any other) contrary evidence along with the evidence that supports the jury's verdict. In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005) (citing City of Keller v. Wilson , 168 S.W.3d 802, 817 (Tex. 2005) ). But the jury was free to disbelieve Father's testimony, and we must defer to the jury's credibility determinations so long as those determinations are not unreasonable. Id. (quoting Sw. Bell Tel. Co. v. Garza , 164 S.W.3d 607, 625 (Tex. 2004) ). Considering the evidence that, after the child was born, Father helped Mother fake the results of a drug test by providing her with his urine sample to use in lieu of her own, the jury could have reasonably found Father lacked credibility and doubted his entire testimony. Id. at 574 ("It was within the jury's province to judge [father]’s demeanor and to disbelieve his testimony...."). We might not have doubted his testimony had we been on the jury, but that does not establish that no reasonable juror could have done so.
Sadly, the Court completely nullifies the Family Code's protection for unborn children by substituting its own view for that of the jury. While considering all the evidence, we must review it not to decide whether we are convinced that Father placed his child in dangerous conditions or surroundings under subsection (D) or exposed him to dangerous conduct under subsection (E), but simply to "determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). And to make that determination, we must review the evidence "in the light most favorable" to the jury's findings and assume the jury resolved any disputed facts in favor of its finding if a reasonable juror could have done so. Id. In the end, we must uphold the jury's finding unless we conclude that no reasonable juror could have formed a firm belief or conviction that Father subjected his child to dangerous conditions or conduct. Id. On this record, and because subsections (D) and (E) protect unborn children as well as children after their birth, I cannot reach that conclusion.
The Legislature did not choose to enumerate what obligations fathers owe to prevent endangerment of their unborn children, and we cannot speak into that silence to invent such a list. The Court offers examples of how a father might "actively participate[ ]" in endangering his unborn child, ante at ––––, but fails to recognize that pre-birth endangerment need not be active at all. Subsections (D) and (E) authorize termination not just when a parent places the child in dangerous conditions or engages in conduct that endangers the child, but also when a parent knowingly allows the child to remain in dangerous conditions or places the child with others who engage in conduct that endangers the child. TEX. FAM. CODE § 161.001(b)(1)(D), (E). Even when a father is not himself creating danger for his unborn child, subsections (D) and (E) require that he do something. Here, at least some evidence supports a finding that when Father should have intervened, he enabled; that when he should have acted, he allowed.
See, e.g., In re M.J.F. , No. 06-05-00113-CV, 2006 WL 2522200, at *10 (Tex. App.—Texarkana 2006, no pet.) (affirming termination of father's rights under subsection (D) where he allowed child to remain with mother despite knowledge of her drug use); In re S.K. , 198 S.W.3d 899, 906–07 (Tex. App.—Dallas 2006, pet. denied) (affirming termination of rights of father who left his children with mother despite knowing her conduct was endangering them); Castaneda v. Tex. Dep't of Protective & Regul. Servs. , 148 S.W.3d 509, 524–26 (Tex. App.—El Paso 2004, pet. denied) (affirming termination of mother's rights under (D) because she left child with father knowing he was dangerous and refused to separate in an effort to regain custody of her son).
The trial began the following Monday, October 8, 2018. There was no other testimony regarding an attempted inspection after Taylor's purported withdrawal from the placement process beyond the attempt on the Friday before trial.
I join the Court's refusal to "attribute[ ] any and all known danger" an unborn child faces to the father, ante at 750, but I cannot join the Court in second-guessing the jury's findings. Regardless of what we might have concluded, a reasonable juror could have concluded that Father's actions and inaction were sufficient to establish that he knowingly placed or allowed his unborn child to remain in dangerous conditions or surroundings and exposed him to dangerous conduct.
The Court recognizes the dangerous conditions and conduct the child faced before he was born, and even acknowledges that the jury "may have reasonably concluded that Father could have better handled the difficult situation." Ante at 750. Yet the Court rejects the jury's finding that termination was appropriate under subsection (D) and chooses not to reach the issue of whether termination was appropriate under subsection (E). Ante at ––––. Instead, it holds that because the jury was asked about subsections (D), (E), and (O) in a single, broad-form question, we must remand for a new trial under Crown Life Insurance Co. v. Casteel , 22 S.W.3d 378 (Tex. 2000). Ante at ––––. Because I conclude that legally sufficient evidence supports the jury's findings under all three subsections, I would affirm. I therefore respectfully dissent.
Justice Blacklock, joined by Justice Devine and Justice Busby, dissenting.
Each week, during the pendency of this case, Father drove to the offices of the Department of Family and Protective Services to visit his son. He took pictures with him, heard him learn to speak, watched him play, and held him. Each week, Father had to leave the office without his son. After years in litigation defending his natural and legal right to raise his son, Father should finally be able to walk away with his son.
Because of Mother's endangering actions, not Father's, Father has never had a chance to live together with his son as a family. If the Department's fear that Father will endanger the son he loves comes to pass, the Department can get involved just like it does with other parents who fail in their sacred responsibility for their children. But in a trial focused on Mother's misdeeds, the Department's case against Father amounted primarily to speculation that he might not provide a safe home for his son in the future. That is not a predicate ground for termination.
The case against Father includes no clear and convincing evidence that he endangered his son or that he violated his service plan. Only by mistakenly using the service plan as a basis to speculate about future endangering conduct Father might some day commit can the Court reach its conclusion that sufficient evidence supports the subsection (O) finding. But Texas law requires more. Parents who have already endangered their children are eligible for termination of their rights under subsections (D) and (E). Parents whom the Department fears will do so in the future are not—and we should not allow service plans under subsection (O) to surreptitiously relax the endangerment thresholds chosen by the Legislature in (D) and (E). The law—both Texas statutory law and higher sources of authority with which we should be loathe to interfere—entitles Father to be given a chance to raise his son. He should not lose his son because of his wife's failings. And he should not lose his son due to untested speculation about whether he can raise his son well. He deserves a chance to be the Father he claims he wants to be, a chance he has never had.
The Court sends the case back down to be tried again. Ante at 731-32. Although this is a victory of sorts for Father, in my view he is entitled to more. We should reverse the judgments below and render judgment for Father. I therefore respectfully dissent.
* * *
The Court holds that legally sufficient evidence supports termination of Father's rights under section 161.001(b)(1)(O) of the Family Code. Ante at 744-45. I cannot agree that the record here comes close to demonstrating the sort of violations of a court-ordered service plan for which a father can lose his fundamental right to his child—or a child lose his fundamental right to his father.
Start with the statute. Subsection (O) serves as a predicate for termination of parental rights only when the parent "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child." TEX. FAM. CODE § 161.001(b)(1)(O) (emphases added). The court-ordered service plan must be "specific" and must state "the actions and responsibilities that are necessary for the child's parents to take to achieve the plan goal" as well as "the assistance to be provided to the parents by the department ... toward meeting that goal." Id. § 263.102(a)(1), (7). In every case, the Department "must write the service plan in a manner that is clear and understandable to the parent in order to facilitate the parent's ability to follow the requirements of the service plan." Id. § 263.102(d).
The words of subsection (O) matter. A parent must comply with the provisions of the order, not the spirit of it or the Department's1 understanding of a provision's purpose. The order must establish the actions the parent must take to get his child back. The service plan's requirements must therefore be achievable by the parent's actions —not by the parent's mental state, or the Department's assessment of the parent's mental state. Finally, the required actions must be stated specifically. The specificity requirement reinforces that the Department cannot impose requirements on the parent that are not explicitly stated in the plan. The specificity requirement should also prevent the Department and the courts from reading unstated caveats into the explicitly stated elements of the plan.
At bottom, compliance with subsection (O) is about checking boxes on a checklist. Whether a service plan has been complied with should be objectively determinable from the actions taken by the parent. It cannot turn on the subjective opinion of the Department about whether the parent really meant it , or what the parent is likely to do in the future. If the parent took the action required by the plan, that is enough.
My dispute with the Court concerns its treatment of the requirement in Father's service plan that he "maintain a safe and stable home environment."2 The Court's principal error is using subsection (O) to smuggle in the Department's concern that Father would not, in the future , be sufficiently "protective" of his child. For the Court, this suspicion about Father's future actions and intentions means that Father did not "maintain a safe and stable home environment" for his son. Ante at 744. This approach to the service plan converts what should be an objectively verifiable box-checking exercise into a completely subjective, open-ended, forward-looking invitation to speculate about all the ways in which Father might not make good on his earnestly stated intention to take good care of the child he loves. But the question is not "Will the child's life be safe and stable if Father has custody?" The question is, as I understand it, "Does Father have a reasonably safe and stable physical location where he can live with the child?"
In assessing compliance with this service-plan provision, the Court's focus should be on the physical suitability of the place Father designated as the child's home. Otherwise, subsection (O) swallows the other termination grounds involving endangerment of children. Subsections (D) and (E) are specifically focused on parental conduct or decisions that endanger children—just the kind of thing the Department suspects Father will do in the future, which it fears will create an unsafe and unstable home environment (all because of predictions about Mother's future misbehavior, not Father's). Both (D) and (E) are explicitly backward looking. Broadly speaking, they require a showing that, in the past, the parent "engaged in conduct" that endangered the child or "knowingly placed" the child with someone who did. TEX. FAM. CODE § 161.001(b)(1)(D), (E). Fear that a parent will do those things in the future is not enough to satisfy (D) or (E). See In re J.R. , 171 S.W.3d 558, 570 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ("The unambiguous language of subsection [161.001(b)(1)(D)] requires proof of Crystal's knowing exposure of the children to an endangering environment in the past. Any alleged likelihood that Crystal will knowingly expose the children to a dangerous environment in the future is not sufficient to prove a violation of subsection [161.001(b)(1)(D)]."); In re R.S.-T. , 522 S.W.3d 92, 109 (Tex. App.—San Antonio 2017, no pet.) ("The relevant period for review of conduct and environment supporting termination under statutory ground D is before the Department removes the child."); see also In re J.F.-G. , 627 S.W.3d 304, 323 n.4 (Tex. 2021) (Blacklock, J., dissenting) ("Subsection (E) is explicitly backward-looking.... A parent's future plan to place his children with people the court deems dangerous is not a violation of subsection (E).").
But the Court relies on exactly that—the fear of the Department's witnesses about how Father will take care of his son in the future—to find that Father violated his service plan by failing to "maintain a safe and stable home environment." Ante at 742-43. A service plan that essentially rewrites other statutory termination grounds in a way that is less protective of a parent's rights surely cannot be enforceable. In any event, when there are two ways of understanding a service-plan requirement—one that amounts to an objective box-checking exercise and another that authorizes the factfinder to engage in forward-looking speculation about a parent's future behavior that would not be allowed by subsections (D) and (E)—surely courts must apply the former.
The burden of proof is important as well. The Department bears the burden of proof in establishing the predicate grounds for termination. See In re A.B. , 437 S.W.3d 498, 502 (Tex. 2014). That burden does not shift to the parent simply because the Department puts an affirmative requirement in a service plan. Rather than require parents to prove compliance , the law requires the Department to prove non-compliance. In other words, parental rights can only be terminated under subsection (O) when the Department carries its burden of proof in showing that a parent failed to take the actions required specifically by the provisions stated in a court-ordered service plan. Speculation about whether a parent will continue, after trial, to take the action required by the service plan should be irrelevant. Father's obligation was to have followed the service plan as of the time of trial—not to convince the Department that he intended to follow it forever.
The standard of review likewise matters. "[W]hether a parent has done enough under the family-service plan to defeat termination under subpart (O) is ordinarily a fact question." In re S.M.R. , 434 S.W.3d 576, 584 (Tex. 2014). But because "parent and child share a ‘commanding’ and ‘fundamental’ interest preventing an erroneous termination of their relationship," we require clear and convincing evidence to establish the statutory predicates. In re A.C. , 560 S.W.3d 624, 630 (Tex. 2018) (quoting Santosky v. Kramer , 455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). Thus, a court cannot "involuntarily sever that relationship absent evidence sufficient to ‘produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.’ " Id. (quoting TEX. FAM. CODE § 101.007 ). And "[a] correspondingly searching standard of appellate review is an essential procedural adjunct." Id. We "honor ... the elevated burden of proof" by raising the legal-sufficiency standard above its ordinarily deferential posture. Id. ; see also In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002) ("As a matter of logic, a finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.").
We have often cautioned that when conducting such review, courts should disregard evidence that "a reasonable factfinder could have disbelieved or found incredible" but not "all evidence that does not support the finding" because "[d]isregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence." In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). As we have always insisted, "conjecture is not enough." In re E.N.C. , 384 S.W.3d 796, 810 (Tex. 2012). Thus, the standard for disregarding evidence depends on whether a reasonable factfinder faced with competing accounts substantiated by pieces of evidence at crossways from one another could have reasonably chosen to believe the version of events that supports the finding.
* * *
With these standards in mind, turn to the evidence. The Court holds that the Department put before the jury legally sufficient evidence to show Father failed to satisfy the service plan's requirement that he "maintain a safe and stable home environment." Ante at 744. The Court first decides that sufficient evidence existed for the jury to conclude that Father did not actually have a separate, presently available home for his son. Ante at 742-43. The Court further concludes that sufficient evidence supported the conclusion that any such home would be unsafe, primarily because Father has not demonstrated sufficient willingness to keep Mother away from the child. Ante at 743-44. I disagree on both counts.
Begin with the allegation that no safe, stable home was truly maintained by Father. To be sure, there is evidence that Father's primary residence was potentially an unsafe or unstable home environment.3 His house was very dirty when caseworkers visited it on May 31, 2017 (about a month and a half before the service plan was first put in place). But since the service plan was put in place, Father has consistently maintained that he has access to a separate, clean, and safe home belonging to his sister-in-law, Nicole Taylor, to which he could take the child if he were given custody. The availability of that separate home—not the present state of his primary residence—should be the crux of this dispute.
For the proposition that the separate home was not presently available, the Court points to four different pieces of evidence. First, Father at one point claimed that he and Mother always intended to move in with Taylor to raise their son, but other testimony indicated that the plan to live with Taylor did not arise until after the Department removed the child. Second, there was evidence that Taylor had withdrawn from consideration as a placement home for the child earlier in the process. Third, the Department had not had a chance to inspect her home to determine its suitability. Fourth, Father has lived in his present home for forty years and has maintained it very poorly, and his car is likewise too full of trash to safely transport a child, so he has "provided no indication that he could maintain any future residence in a manner safe for a child." Ante at 743.
None of that evidence comes close to demonstrating that Taylor's home was unsafe, unstable, or unavailable. To start, why should it matter if Father did not always intend to take the child to another home, even before removal proceedings began? He was under no legal obligation to maintain a home environment that lived up to the Department's standards until the service plan was put in place. Once that obligation arose, he secured permission from Taylor to move into her home. And he also made future plans to sell his current residence in order to move to Fort Worth, where his family lives.
Nonetheless, the Department argues that the jury could have simply disbelieved Father's stated intent to move in with Taylor. The Department seems sure that Father's plans were baffling and unstable—a constantly shuffling array of infirm options. But his plan was straightforward and consistent: Once removal happened and the service plan was implemented, Father could no longer take the child to his primary residence, so he wanted to move in with Taylor, at least for a time, and then explore moving to Fort Worth in the future, which would bring him closer to his family and support systems. The Department points to no evidence that this sequence ever changed or that Father ever faltered in his intent. While the second step of moving to Fort Worth, like all future plans, has some level of uncertainty and contingency, Taylor's home satisfies the service-plan requirement by itself. Surely the requirement to maintain a safe and stable home does not preclude having future plans to relocate to an even better one.
Next, why should it matter if Taylor withdrew from consideration as a placement home? There is a big difference between (1) taking custody —legal responsibility—of a child who has been removed from his parents, and (2) allowing the child and his father to live in one's home. Taylor may have had various reasons, including her own health, to prefer opening her home rather than taking custody of the child. She denied ever having withdrawn from consideration as a placement. But in any case, her uncontroverted testimony was that she had always been and still remained ready to allow Father and the child to live with her. No reasonable juror could infer from Taylor's alleged withdrawal as a custody placement that her willingness to host a reunited Father and son in her home was a bald-faced lie. When it became possible that the child could both stay with his Father and live in her home, Taylor evidently preferred that pathway. The Department presented no evidence to call that into question.
The Court further notes that the Department had not had the chance to inspect Taylor's home. Ante at 742-43. But that is not evidence the home is unsafe, unstable, or unavailable. It is a lack of evidence, and the Department bore the burden of proof. The Department has not argued anywhere in the briefing here that Taylor's home was unsafe, and witness testimony to that effect below was conclusory. To the contrary, the Department's witnesses complained only that there was some clutter to be cleared out before a child could be placed there, but it found no unsafe or unsanitary conditions that would fail under the service plan.4
True, the Department wanted to inspect Taylor's home back at the very beginning of the investigation when Taylor was being considered as a potential foster parent. And when a home study was conducted, the Department had concerns about the readiness of the home at that time due to "clutter." But the Department has not shown that it pressed for an inspection of Taylor's home during the many months after Father suggested it in satisfaction of the service-plan requirement—that is, until the Department called Father the Friday before trial. The Department did not reach Taylor to discuss the matter. It merely speculated that the home was unsafe because it was not entirely ready.5 But as any parent who has waited, for instance, to assemble a crib knows, there is a large gulf between an unsafe home and an unready home. Proof of the latter is not proof of the former. The talismanic invocation of the word "clutter" in the Department's testimony and briefing does not change that fact.6 While a parent may not simply refuse a home inspection and thereby defeat termination, the Department's last-minute request falls well short of providing clear and convincing evidence the home was either unavailable or unsafe.7
Finally, why should it matter that Father has lived in an untidy home or that his vehicle has trash in it? The service plan's requirement was a presently available, safe, stable home, not a record of good behavior for cleanliness that proves one's capacity to keep house well. The condition of Father's home has nothing to do with the condition of Taylor's home, which is the one Father proffered in satisfaction of his service plan. And even if the condition of Father's home mattered, Father had lived in his home for forty years without children. His child never lived in the home. We have no evidence at all of how Father would maintain a home in which a child lived. He was never given a chance to try. It cannot be the case that the difference between keeping and losing a fundamental right turns on whether Father cleaned up a house he did not intend his son to live in. Rather than spend his limited time in the midst of overlapping personal crises cleaning up an old home that he planned to leave behind, Father focused first on locating a safe home for the child. Isn't that what the Department wanted?
Of course, we have zero evidence as to how Father maintained his home at any point during those forty years before the Department investigated on May 31, 2017—after Father had spent twenty-six nights of the previous month at the hospital with his child.
The Court also refers in passing to evidence of a deficiency in Father's "ability to independently parent" the child. Ante at 742-43. The only evidence referenced to support Father's lacking that ability was testimony that "during the early parts of the investigation" Father said he "would like to have somebody else there with him to help him care for his child." Of course, that is exactly how most parents feel. In context, Father said this in response to the proposed plan by the Department that he care for the child without Mother —who still had her parental rights at the time. Understandably, Father expressed some hesitation about caring for the child without his wife, the child's mother. But he also sought help from the nurses during the child's hospitalization to learn about parenting and spent time taking care of the child. And in the early months of the investigation he was avid about learning from the Department as well. There was no evidence at any time later in the case that Father would lack the ability to care for the child. Instead, Father's counselor, who was called to testify by the Department, stated that she thought Father could be a good parent independently.
In sum, unrebutted testimony established the availability of Taylor's home, the safety and fitness of which has never been seriously called into question. Nevertheless, the Department's consistent position has been that Father's future plans to move into another home, such as Taylor's, cannot satisfy the requirement to maintain a safe and stable home environment. As detailed above, however, the evidence established that Father had this alternative home available to him, and there was no requirement in the service plan that he presently reside in the home he offers in satisfaction of its requirements—imposing such a "present residence" requirement would impermissibly add words to the service plan.
Likewise, imposing an "intent to reside" requirement would add words to the service plan, converting a requirement that Father take the action of maintaining a suitable home into a requirement that Father possess the mental state of intending to live there (for how long?). The former is provable or disprovable with objective facts. The latter is a matter of opinion about another person's intentions. And if juries are as free to disregard a parent's testimony as the Court suggests they are, no parent can ever be confident he has sufficiently proven his intentions. If this is how it works, and if the Department decides not to believe you, then there is no action you can take to conclusively comply with your service plan. Father's service plan could have been written to require him to "convince the Department that he intends to live in a safe and stable home environment with his son." It does not say that. It just says Father must "maintain" such an environment. He did that, by arranging with his sister-in-law to live with her. She testified to her willingness to take them in. There was no evidence her home was unsafe or unstable. That checked the box. Case closed.
Even if Father's intentions mattered, testimony from the Department affirmatively showed that Father worked to prepare Taylor's home for his son and had plans to continue doing so in the coming week. And Taylor testified that the child's room had been cleared out and was presently ready.
Such a provision would likely be unenforceable for various reasons, but the point is that Father's plan did not even try to impose such a provision.
Again, the Department bore the burden of proof to show by clear and convincing evidence that Father did not have a safe and stable home environment lined up for his son. Taylor's residence satisfied the service plan's requirement, and none of the Department's evidence clearly and convincingly undermined the availability, safety, or stability of her home.
* * *
The Department places great emphasis on Father's alleged lack of "protectiveness," despite that word's absence from the service plan or the relevant statutes. No one has made any argument that Father himself engages in dangerous behaviors or would expose the child to drugs or crime. Instead, the assertion is that the evidence demonstrates his inability to say no to Mother, and she will make the home unsafe by bringing drugs or criminals into it. Ante at 743-44. The Court agrees with the Department that Father's "lack of protectiveness"—that is, his inability to guarantee that Mother would not reinsert herself into the life of the child—undercuts his claim to be able to maintain a safe and stable home. The Court finds in various events "context for a pattern that continued throughout the termination proceedings." Ante at 744. That pattern allegedly shows that Father cannot protect the child from Mother's dangerous behavior.
"Protectiveness" is a bit of Department jargon that appears to function as a catch-all justification for the Department's reservations about returning a child to his parents. The Court today notes its use by Department witnesses but does not determine whether a conclusory assertion of "lack of protectiveness" counts for anything at all. Ante at 746-47. I do not think it should. The factual details of the parental deficiencies alleged—not the labels used by the Department's witnesses—is what should matter in a sufficiency-of-the-evidence review.
This entire line of thinking is a red herring. The focus here should be on confirming compliance with a provision in a service plan, asking whether a box was checked. Yet the Department uses the words "safe" and "stable" in Father's service plan as a way of smuggling in its multifaceted concerns about Mother's behavior and Father's relationship with her. Asking whether the child's life will be safe and stable in the future —instead of whether the child's proposed living quarters is suitable for children at the time of trial—converts the subsection (O) inquiry into a free-wheeling best-interests analysis. In this scenario, any speculation about things third parties might do in the future to make the home unsafe or unstable is fair game. But that is not how this works. The correct question is whether the child will have a reasonably well-maintained place to live if he is returned to his parent. Here, the answer to that question was plainly yes.
Reading this service plan the way the Department does raises serious concerns about the plan's validity. The Department's approach, which the Court seems to adopt, is that a safe, stable home presently available to Father is not enough. For the Court, if the Department has reason to believe that the home may not remain safe and stable in the future, there is sufficient evidence to find non-compliance with the service plan. But very few parents in troubled circumstances can guarantee to the Department or a jury that potentially dangerous influences will not re-enter their lives at some point. And the law does not require it of them. If speculation that Father's decisions in the future will endanger his son is enough to establish a violation of his service plan, then the Department has manufactured a new substantive termination ground—future likelihood of endangerment. Never mind that subsections (D) and (E) are explicitly backward looking—that the Family Code is written to impose consequences on parents who have endangered their children, not on parents whom the Department thinks might do so if given the chance. Apparently, by means of a service plan, the Department can require a parent who has not endangered his child to assure a jury that bad influences will not make their way into the child's life in the future. That is not the law. The Department cannot use service plans to expand the statutory grounds for termination in areas—such as endangerment—where the statute already speaks quite clearly.
Thus, none of what follows should have to be said. The Court's concern about Father's relationship with Mother and her problematic influence on the child should have nothing to do with Father's service plan, which does not mention Mother. Nevertheless, because the Court's analysis of the evidence about Mother and about Father's relationship with her falls short even on its own terms, I offer the following response.
The Court starts by noting that one caseworker believed Father and Mother were still in a close relationship even after they filed for divorce. Ante at 742-43. Father had even expressed his desire to help Mother after the divorce. This is not shocking, since they were, well, married. And it can hardly be the case that Mother was expected to vanish upon divorce or upon her parental rights being terminated. Even the current foster mother—whose adoption of the child the Department supports—has said that she plans to allow Mother to keep in contact with the child. But Father is faulted here because he might still love Mother, might wish to see her on occasion, and might even hope to be reconciled to her someday. It is bad enough that the Department expects people to sever their bonds of marriage in order to prove their "protectiveness." It is inconceivable that it should demand spouses who get divorced at its suggestion to also gin up enough distaste for one another's company to satisfy the level of theatricality they expect from a "real" divorce.
One key piece of evidence that the divorce was "in name only" appears to be that a courtesy worker for the Department visited Mother's apartment and found Father there after they had initially announced their intent to divorce several months before trial and before the couple filed for divorce. Father appeared to have been sleeping on Mother's couch that Friday afternoon. This was at Mother's apartment in Houston, where testimony elsewhere established that Father had been visiting that summer. It is relevant to note that the apartment was owned and lived in by the Salas family, whom Father and Mother knew well, and that Ms. Salas testified that she would invite him over to stay on the couch when he was in town.
The other key piece of evidence was that Father and Mother allegedly discussed waiting until after the trial was over to discuss having more children. But Father said that was a mischaracterization of his statement, which was that one cause for the divorce was that Mother wanted more children. He disclaimed any such intent, stating that he would not have children outside of marriage, that he had moral objections to doing so, and that after the divorce was final, he would not have children with Mother.
The Court then turns to incidents before the birth of the child when Father twice called the police to remove an evidently dangerous man from his wife's presence. Ante at 743-44. For his troubles, Father spent a night in jail after that man falsely accused him of domestic violence. It is hard to see how this illustrates Father's inability to maintain a safe home. Calling the police to protect his home and prevent wrongdoing would seem to indicate the opposite.
Much of the Court's analysis is then spent showing that Father downplays Mother's drug problems or fails to refuse her requests for help. Father once allegedly attempted to help Mother fake a drug test. And he supposedly minimized her drug problems by disagreeing with the State about their severity. But it is undisputed that Father went to extreme lengths to ensure that Mother received drug treatment. Downplaying a spouse's drug problems while talking to a counselor (who would testify for the government in ongoing proceedings against that spouse) seems rather to be expected. And trying to shield one's spouse from the consequences of a positive drug test, is a far cry from allowing drug use around a child. Even if Father did the former, any suggestion he would do the latter was sheer speculation.
This took place after the birth of the child, when Mother was taking drug tests as part of her service-plan requirements.
Importantly, the Department itself may have been misinformed about the severity of Mother's drug problems, as evidence shows some of its staff believed the child had tested positive for methamphetamines —a street drug—where he actually tested positive for amphetamines , a component of some common, legal drugs. Moreover, the Department's concern about Father downplaying the impact of Mother's drug use on the child, ante at 743, seems undercut by the Department's first witness, a pediatrician, who testified that MRI screening for after-effects of the withdrawal the child suffered after birth came back normal, with no observable effects upon the brain. The child undoubtedly suffered from difficult withdrawal symptoms such as jitters and poor weight gain, which, had Father not ensured that the child received medical care, could have been life threatening. But Father's testimony was that he was told by the doctors that the symptoms were "moderate," and the pediatrician did not directly contradict that testimony, instead insisting that it was "mostly subjective." Father expressly disclaimed ever saying this was a "slight issue" and instead stated that it was "serious." And his past behavior of extensively researching drug treatment options and going to great lengths to ensure his wife received drug treatment would indicate that he took the drug usage seriously. He testified that Mother was addicted to drugs during the pregnancy and that he helped her attend rehab. When asked who was responsible for the child undergoing withdrawal, he said it was "obviously [Mother]." The witness who testified that Father seemed to be downplaying the severity of the drug's effects on the child was a Department caseworker, not a physician. The notes from the counselor on which the caseworker relied do not actually say that he downplayed her drug problem. At trial, the counselor said she believed Father was minimizing Mother's drug problems, but she did not elaborate.
Much could be said about the Department's apparent process of mandating counseling, choosing the counselor for the parent, requiring the parent to sign releases of records from the counselor, and then having the counselor testify against the parent at trial. The Department even prevailed below on the argument that Father was not sufficiently "open" in these "counseling sessions"—or were they depositions? The court of appeals relied on the Department's testimony that it "considered [the counseling] requirement inconclusive or incomplete" because it determined that counseling had been "unsuccessful," even though Father literally complied with the terms of the service plan by completing his required counseling sessions. 627 S.W.3d 662, 670 (Tex. App.—Waco 2019). The Department has abandoned that argument here, and wisely so, as it would mean that parents are forced to be forthcoming with a counselor to the Department's satisfaction, even though anything they say can and will be used against them. Parents too unsophisticated to understand the legal process might freely tell the counselor all kinds of things any lawyer would beg them not to say to a potentially hostile witness. The more savvy parent may clam up, knowing their words can be used against them. But that only causes the Department to call the counseling "unsuccessful." I would have thought that "successful" counseling is much more likely if the parent can trust the counselor to maintain confidentiality. If, however, the Department's desire is to get another set of eyes and ears on the parent in an atmosphere where the parent is more likely to let his guard down, then its approach to "counseling" makes perfect sense.
Father also allowed friends of Mother on two occasions to stay in the couple's home after the friends had been released from jail. One stayed in the home before the child was born and overdosed while staying there. Another pair stayed for the summer after the child was born and was no longer in the custody of the family. These acts of hospitality seem to have involved no wrongdoing on the part of Father, nor was there any evidence that any crimes were committed at his home, but this testimony led the Department to leap to the conclusion that Father could not protect a child from a "criminal element." Again, the evidence shows only that he opened his home to others—once at Mother's request while she was pregnant and once jointly with Mother for two guests after the child had been removed. That is all. Such hospitality was consistent with his character for assisting individuals who needed it. But it is hardly the den of thieves lurking in the recesses of the Department's imagination.
The evidence of two of the visitor's alleged criminal status is murky at best, coming as it did through second-hand testimony of the Department about what Father said he thought might have been the case.
"Mike" stayed in the home in March 2017. He was a friend of Mother who had known her for a long while and had been recently released from prison. While at the home, late one afternoon, he passed out while standing on the front lawn. Father took him to the emergency room. Testimony showed that he likely overdosed on Dilaudid, but it is not clear if the drugs were legally or illegally obtained. He survived.
The pair—identified as John and Lorenzo—stayed from June to August in 2018. Father was evidently not present for much of this stay, as he was away in Houston. And while Lorenzo was a friend of Mother whom Father did not know well, John was identified as "his friend" whom he helped because he had no place else to go. Father had known John for years and helped him considerably in the past. So while the Department presented this as evidence of his inability to "tell her no," at least one of the three guests was there on Father's invitation.
The Court is concerned with the statement of Father's counselor that Father trusted Mother and refused, at Mother's request, to speak with caseworkers. Ante at 743. That is to say, after the Department made clear that its primary goal was not reunification of the family, Father and Mother no longer wanted to make small talk with the Department. In short, he sided with his wife when they were in adversarial proceedings against the government—and for this he may lose his child.
The Department's "primary" (or, "permanency") goal was unrelated adoption, but its "concurrent" goal was family reunification. Ante at 736 n.7. This apparently means the Department pursued both goals simultaneously. The service plan listed only the Department's primary goal. It did not state the concurrent goal. Whatever the merits of the officially required terminology, it is reasonable to assume that parents unversed in bureaucratic jargon could take the "primary goal" of unrelated adoption to mean that family reunification was disfavored, if not entirely off the table.
But even if he trusted Mother to an excessive degree and allowed her to manipulate him, that still falls short of proving that Father would not make the home safe for the child. Not once has the Department shown that Father placed Mother's interests ahead of the interests of the child. In not one of these examples does Father allow harm to come to the child so that Mother can have her way. There is no proof that he ranks the wellbeing of his child below hers. There is no evidence at all of how Father balances his love for his child with his feelings for his wife, because he has never had the chance. The Department's fear that he will strike that balance poorly is pure speculation, based entirely on episodes not involving the child. Calling the police on dangerous men, taking your wife's side against that of the government, and opening your home to friends of the family. These are not the sort of things for which one expects punishment in our legal system. But even accepting the Department's preferred spin on the above events, what does all that have to do with satisfying the service plan's requirement that Father have a safe and stable home available? Father testified that he would abide by any restrictions on Mother's visiting the child. He said he would divorce her to show he put his child first. Mother testified that she would stay away from the child if need be and that she would never again put Father in a position where he would have to contend for the right to raise their child. No protective orders are in place. No legal restrictions on her ability to visit the child with the consent of the child's custodian are in place. So how can it be that the bare possibility of her wielding influence over Father to gain access to the child for unspecified malicious purposes makes this home—really, any home—unsafe?
A supervisor for the Department stated its position bluntly: "[T]he Department considers [Mother] to not be safe and appropriate. Her presence in that household is enough for the Department to determine that that is not a safe or appropriate home for the child." In short, it was not enough for Father to provide a safe and stable living space. The Department wanted Mother gone. It deemed Father incapable of cutting his child's Mother out of the picture (one might have thought this a virtue, not a vice). And so the Department's position is that no home Father and child live in will ever be safe—because of Mother. The problem, therefore, is not that Father has not complied with his service plan. Father cannot comply with his service plan, not because he cannot take the action it requires (he has done so), but because the Department has examined his character and found him insufficiently "protective." The Court blesses this approach, but in so doing it strays far afield from the actual requirements of the service plan, and it allows the Department to use the service plan to construct a substantive, forward-looking, likelihood-of-future-endangerment ground for termination.
At bottom, the Court takes aim at the wrong target. The actions of Mother—not Father—litter the pages of the majority's opinion. But it is Father's rights at stake, and he must be judged by his actions, not hers. We cannot demand that a father and husband do more than he has done to balance the needs of his child with the needs of his troubled wife. Reading the Court's opinion, one could walk away wondering how far a man must go to distance, disclaim, and deny any attachment to or affection for his wife in order to satisfy the Department's subjective determination of what qualifies as a stable home. Should he have divorced her immediately? Should he have sworn to never speak to her again? Should he have turned her into the police? How far, exactly, will the Court allow the Department to go in forcing a choice between the two most fundamental obligations in a man's life?
The Department's position would require that a parent be completely forthcoming with the State about his spouse's drug use while her rights are still at stake in order to demonstrate a "protective" capacity sufficient to satisfy the Department's sense of what a "safe and stable home" means. In other words, here's your choice: throw your spouse under the bus, or lose your child instead. Whatever the merits of requiring spouses to protect their children from the dangerous and erratic behavior of the other parent, this far is too far. And not a word on Father's obligation to dispossess his son's mother is to be found anywhere in the service plan.
If the words "safe and stable home environment" are broad enough to encompass all that the Department insists they do, then that raises the question whether they are not specific enough to be statutorily authorized—and are consequently unlawful. Tex. Fam. Code § 263.102(a)(1) (requiring that terms in the service plan "be specific").
* * *
The reader can scour the Court's opinion looking for the sin so egregious that Father should be eligible to lose his rights to his child. I cannot find it. The sins are all Mother's. Father's problem, we are told, is that he cares too much for his wayward wife. And he does not take out the trash. Neither is a predicate ground for termination of parental rights. Because no predicate grounds were supported by clear and convincing evidence, I would render judgment for Father.
The Court does not reach the question of whether Father violated the second service-plan requirement at issue here—the requirement to contact the Department at least twice a month. Ante at 742 n.8. I would hold that Father satisfied the requirement. Father attended almost all weekly visits, which took place at the Department's office. Id. at 735-36. This was contact. The Department argues that his contact was not meaningful enough to satisfy the requirement. But contact is contact. If the Department wants something more, it can put the requirement in the service plan. Father was within his rights to do only what the service plan specifically required of him. He was not obligated to do it the way the Department wanted him to do it, unless the service plan made that obligation clear.
I agree with the Court's reversal of the judgment below on the subsection (D) ground. Ante at 750-51. The Court does not reach the subsection (E) endangerment ground, id. at 751-52 n.16, which requires clear and convincing evidence that Father "engaged in conduct" that "endanger[ed]" the child. Tex. Fam. Code § 161.001(b)(1)(E). The only danger alleged to the child was from Mother's drug use in utero. I would hold that Father did not endanger his child by failing to do everything the Department in hindsight imagines he should have done to make his wife seek additional treatment for her drug problem. The endangering "conduct" was all Mother's. It is undisputed that Father encouraged his wife to seek treatment, drove her to treatment, and spent a considerable amount of time and effort helping her seek it early in the pregnancy. She eventually rejected treatment, and Father could not force her to seek more. Father's inability to compel his erratic, addicted wife to undergo medical treatment she did not want is not "conduct" by Father at all, much less conduct that endangered his unborn child in any measurable way apart from Mother's endangering conduct. Only by side-stepping the words of the Family Code and the service plan and collapsing everything into the Department's free-ranging allegation of "lack of protectiveness" can Father's inability to compel his wife's medical treatment be used as the predicate for termination of his parental rights.
In Memoriam Holden Thomas Tanner (1995–2022).
That God, which ever lives and loves,
One God, one law, one element,
And one far-off divine event,
To which the whole creation moves.
Alfred , Lord Tennyson , In Memoriam A.H.H. 131 (London, The Bankside Press 1900).