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noting that parental use of methamphetamine poses immediate danger to child’s physical health and safety
Summary of this case from In re E.D.Opinion
No. 21-0998
06-09-2023
In the INTEREST OF A.A., G.A., and K.A., Children
Brenda L. Kinsler, Austin, Anna Maria Ford, Eric T. Tai, Atty. Gen. W. Kenneth Paxton Jr., Austin, Brent Webster, Houston, William Cole, Judd E. Stone II, Vicki Kozikoujekian, for Respondent. Michael J. Sharpee, Amarillo, for Petitioner. Harry R. Ingram, Canyon, for Other interested party A.A., G.A., and K.A. Larry Adams, Corpus Christi, for Other interested party A., L.
Brenda L. Kinsler, Austin, Anna Maria Ford, Eric T. Tai, Atty. Gen. W. Kenneth Paxton Jr., Austin, Brent Webster, Houston, William Cole, Judd E. Stone II, Vicki Kozikoujekian, for Respondent.
Michael J. Sharpee, Amarillo, for Petitioner.
Harry R. Ingram, Canyon, for Other interested party A.A., G.A., and K.A.
Larry Adams, Corpus Christi, for Other interested party A., L.
Chief Justice Hecht delivered the opinion of the Court, in which Justice Lehrmann, Justice Boyd, Justice Devine, Justice Bland, and Justice Huddle joined.
By statute, a Texas court "may order termination of the parent-child relationship if ... the parent has ... failed to comply with" a service plan ordered by the court "as a result of the child's removal from the parent ... for the abuse or neglect of the child". Here, Mother challenges termination of her parental rights under this provision, asserting that her children were ordered removed to the Department of Family and Protective Services from Father's home and for his wrongdoing, not hers. But removal is not merely relocation. The court's order ended both parents’ legal custody of the children and transferred them to the Department's statutory conservatorship based on evidence of misconduct by both parents that amounted to abuse and neglect.
In In re E.C.R. , we held that a mother's rights to one child could be terminated due to her abuse and neglect of another child because her conduct toward the one placed the other's health and safety at risk. By a similar analysis, here we hold that sufficient evidence exists that Mother's misconduct in exposing her children to Father's abuse and neglect was itself abuse and neglect on her part. The evidence before the court when it signed the order of removal and the testimony subsequently presented at trial are sufficient to support the trial court's finding that Mother's acts and omissions, which render her an unfit parent, were easily within the broad statutory definition of "abuse or neglect".
402 S.W.3d 239, 240 (Tex. 2013).
We hold that the trial court's findings that Mother failed to comply with her service plan and that termination of her rights is in her children's best interest are supported by legally sufficient evidence. And we reject Mother's challenges to the trial court's jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.
Tex. Fam. Code §§ 152.101 -152.112.
We affirm the judgment of the court of appeals.
635 S.W.3d 430 (Tex. App.—Amarillo 2021).
I
Mother, age 34 at the final termination hearing, first experimented with methamphetamine in high school and became addicted around the age of 20. In her 20s and early 30s, Mother cycled through several periods of sobriety and relapse. During that time, she married Father, and their three girls, A, G, and K, were born. Father also used drugs, and the marital relationship was marked by domestic violence. When K was still an infant, all three girls went to live with their maternal grandmother, Marilyn, and they remained in her care for some seven years. Mother, Father, Marilyn, and the girls all lived in Texico, New Mexico, on the Texas–New Mexico border.
In 2017, Mother and Father were divorced in New Mexico. The stipulated divorce decree gave Father "the sole legal care and physical custody" of the children with Mother's visitation to be as "agreed upon by the parties." Mother testified at trial in this case that she agreed to give custody of the three girls to Father—knowing that he, too, used drugs and could be physically violent—because another child of hers had recently died and she "was trying to cope with that". She "figured [Father] was doing better than [she] was at the time" and so the children "would be better with him". When pressed about the impact of Father's domestic violence on her decision to give him custody, Mother reasoned:
The record does not reflect the circumstances of the child's death.
Well, he had taken anger management classes and he had been in a -- what is it, halfway house kind of -- after he got out of prison and I -- I had seen a noticeable change in his anger so I thought they would be okay. Plus his mother was with him also to help. So ... I figured they would be okay.
After the divorce, Father and the children moved across the border to Amarillo, Texas. The next year, Mother had another child in New Mexico. That child lives with her father. Mother's testimony indicates that because of an open CPS investigation in New Mexico, she is permitted only supervised visits with that child.
The record does not show how much contact Mother had with A, G, and K after they moved to Texas with Father. Mother testified, however, that one September, G told her that Father had "lost his temper and held her down on the bed and hit her [on] her side." Mother testified that she reported the incident to the police. The incident led to Father's indictment in 2021 for causing intentional bodily injury to a child. The indictment states that the incident occurred on September 21, 2019, shortly before the Department became involved with the family.
Mother testified that she thought the incident occurred in September 2018. But as explained above, the record reflects that the incident occurred in September 2019.
Investigator Ashley Francis testified that in October 2019, DFPS received a tip that A, G, and K—then 10, 9, and 7, respectively—were being left alone, unsupervised. When Francis met with Father, he admitted that he had used methamphetamine and marijuana a few days before. DFPS formed a safety plan that required Father's mother, Lanetta, to either keep the girls herself or move into Father's home and supervise all interactions between Father and the girls. The plan lasted only about five months. In early April 2020, Francis stopped by Father's home and found him home with the children, unsupervised. The trial court granted the Department's petition for removal of the children from both parents, and they were immediately moved into a foster home.
In the affidavit supporting removal, Francis alleges that when she contacted Father in October 2019, he did not have contact information for Mother and said that he believed her to be incarcerated. The Department was unable to locate her on its own. In early 2020, Father reported that Mother was in a rehabilitation facility in New Mexico but could not provide any information about it. A few weeks later, he said that Mother was no longer there. Father still could not provide a phone number for Mother but offered to contact her through social media to give her Francis’ contact information.
Francis finally made contact with Mother in February 2020—four months after the Department initiated its investigation. In that phone call, Mother told Francis that she and Father "cannot get along, that there had been domestic violence in their relationship, and that she had concerns regarding his drug use." Francis spoke to Mother again in April after the children were moved into foster care. Francis asked Mother to take a drug test, which was positive for methamphetamine.
Termination proceedings ensued, which we detail below. The trial court ultimately terminated Mother's rights under Section 161.001(b)(1)(O) for failure to comply with her service plan. The court terminated Father's rights too, but he did not appeal.
II
Before turning to the main issue, we address Mother's argument that the trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act to terminate her parental rights. Texas and New Mexico have both adopted the UCCJEA. In Texas, the Act is codified in Chapter 152 of the Family Code.
Tex. Fam. Code §§ 152.001 -152.317 ; cf. N.M. Stat. Ann. §§ 40-10A-101 to 40-10A-403.
Under Section 202 of the Act, the court that has made an initial child-custody determination "has exclusive[,] continuing jurisdiction over the determination until" that court declines or loses jurisdiction in accordance with the Act. Under Section 203, a second court "may not modify a child custody determination made by a court of another state unless" the second court would have original jurisdiction under the Act and:
Tex. Fam. Code § 152.202(a) ; see N.M. Stat. Ann . § 40-10A-202(a).
(1) the initial court determines it no longer has exclusive, continuing jurisdiction under Section 202 or that the state of the second court would be a more convenient forum under Section 207; or
(2) the initial court or the second court determines that the child and the child's parents no longer reside in the state of the initial court.
Both sections authorize a court to exercise emergency temporary jurisdiction over a child within its borders when it is necessary to protect the child. Once a court has done so, that court assumes a duty to communicate with any court that made an initial custody determination involving the child to determine whether the initial court will retain or relinquish jurisdiction. A record must be made of the communication, and the parties must be notified and given access to it.
In 2017, the Ninth Judicial District Court of Curry County, New Mexico, made an initial child-custody determination under the UCCJEA with respect to A, G, and K when it gave Father sole legal care of the girls in the divorce decree. Prior to the termination trial, the Department filed a motion asking the trial court to confer with the New Mexico district court about jurisdiction. At the April 5, 2021 trial, before testimony commenced, counsel for the Department raised its request to confer orally, and the court responded that it would do so after taking testimony.
The record contains this April 27, 2021 email from the New Mexico court declining jurisdiction:
Judge Graham,
As per our conversation, New Mexico will decline to exercise jurisdiction over this case since the children have resided in Texas for more than the last 6 months, and Texas is a more convenient forum.
Regards,Dave Reeb
The trial court's termination order was signed a week later. It recites findings that the New Mexico court declined to exercise continuing jurisdiction under the UCCJEA and that the courts of Texas have jurisdiction under the Act to modify the child-custody determination with respect to A, G, and K.
Mother acknowledges that the statutory criteria in Section 203 for modifying a child-custody determination made in another state were satisfied before the trial court signed the termination order. But she argues that the order is void because the entire trial was held before the court received notice that the New Mexico court would decline jurisdiction. She points us to no section of the UCCJEA, nor any caselaw, prohibiting the commencement of trial before the interstate conference occurs or the initial court's declination of jurisdiction is made part of the record.
In fact, the text of Section 203 cuts against Mother's argument. It says that "a court of this state may not modify a child custody determination made by a court of another state unless" the statutory criteria are met. The modification occurs in the order, not in the taking of testimony. We reject Mother's challenge to the trial court's jurisdiction. III
Tex. Fam. Code § 152.203 (emphasis added).
DFPS characterizes Mother's complaint as procedural , rather than jurisdictional, and argues that Mother waived it by failing to object at trial. The Department points to caselaw holding that provisions in the UCCJEA relating to communications between the initial court and the modifying court are procedural and need only be substantially complied with. See In re J.P. , 598 S.W.3d 789, 799 (Tex. App.—Fort Worth 2020, pet. denied) ("Section 152.110 is a procedural rather than a jurisdictional statute." (citing Texas and California cases)); id. at 800-801 ("[A]lthough we reiterate that it is not jurisdictional, we conclude that the trial court substantially complied with Section 152.110."). Because we reject Mother's complaint on its merits, we need not decide if it is really a procedural one that she was required to preserve.
Mother's primary argument is that her rights cannot be terminated under Section 161.001(b)(1)(O) for failure to comply with her service plan because she "was the non-offending parent". In Mother's view, the children were not removed from her care or due to her abuse or neglect, but from Father's care due to his abuse. The statute provides:
(b) The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
....
(O) 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 of Family and Protective Services 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) (emphasis added).
A
Mother relies on the statute's reference to "the child's removal from the parent ... for ... abuse or neglect", which she reads as limiting (O)’s reach to a parent whose wrongdoing caused a child to be physically taken from that parent. We disagree. Mother's argument turns on the meaning of two terms in (O): removal and abuse or neglect. When these terms are viewed in the context of the statute as a whole and against the backdrop of our analysis in In re E.C.R. , the record contains sufficient evidence that A, G, and K were indeed "remov[ed] from [Mother] under Chapter 262 for ... abuse or neglect".
See, e.g., Miles v. Tex. Cent. R.R. & Infrastructure, Inc. , 647 S.W.3d 613, 619 (Tex. 2022) ("In interpreting statutes, we must look to the plain language, construing the text in light of the statute as a whole.... The statutory words must be determined considering the context in which they are used, not in isolation." (quoting Silguero v. CSL Plasma, Inc. , 579 S.W.3d 53, 59 (Tex. 2019) )).
1
Neither party points to a definition of removal in the Family Code, but Mother assumes that the term is limited to the Department's taking physical possession of a child from a specific person or place. But Paragraph (O) tells us that removal happens "under Chapter 262", and in Chapter 262, the concept of removal is far broader. Removal is effectuated by a temporary court order that transfers not just the right to physical possession from a parent to DFPS but an entire bundle of conservatorship rights from one or both parents to DFPS.
Subchapter B of Chapter 262 is titled "Taking Possession of Child". As a general rule, before DFPS can "take possession of a child", the Department must do two things: (1) file a suit affecting the parent–child relationship that is supported by an affidavit; and (2) obtain an emergency order. Ordinarily, the order is signed without a hearing, based on the allegations in DFPS’ petition and affidavit. But the order is only temporary, expiring 14 days after its signing. Then a full adversary hearing is held.
Tex. Fam. Code §§ 262.101 -262.116.
Id. § 262.101. In emergency circumstances, DFPS can take possession of the child before obtaining the court order, id. § 262.104, but the Department must then file its conservatorship petition "without unnecessary delay," id. § 262.105(a), and the court must hold a hearing "on or before the first business day after the date the child is taken into possession." Id. § 262.106(a).
Id. § 262.102.
See id. § 262.102(a). But see id. § 262.106 (requiring a hearing after a child is taken into possession without a court order under Section 262.104).
Id. § 262.103.
Id. § 262.201(a).
The emergency order does not just address physical possession. Chapter 262 equates it to "a temporary order for the conservatorship of a child under Section 105.001(a)(1)", which is the provision authorizing temporary conservatorship orders in other settings, such as divorce. Section 151.001 of the Family Code lists legal rights and duties that a parent has by default:
Id. § 262.102(a).
(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;
(2) the duty of care, control, protection, and reasonable discipline of the child;
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
(4) the duty ... to manage the estate of the child ...;
(5) [with exceptions], the right to the services and earnings of the child;
(6) the right to consent to the child's marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;
(7) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(8) the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
(9) the right to inherit from and through the child;
(10) the right to make decisions concerning the child's education; and
(11) any other right or duty existing between a parent and child by virtue of law.
Id. § 151.001(a).
Section 153.371 lists rights and duties that, "[u]nless limited by court order", attach to DFPS when it is appointed as the managing conservator of a child. The list in Section 153.371 is almost verbatim of that in Section 151.001. In an emergency order issued under Chapter 262, the court appoints DFPS as the temporary sole managing conservator of the child at issue and addresses what rights of conservatorship are transferred from the parent to DFPS as a result of that appointment. Therefore, the removal of a child under Chapter 262 is not just a physical act. It also includes the transfer by court order of the bundle of rights that the law gives a parent by default from the parent to DFPS.
Id. § 153.371(1)-(12).
A parent does not lose "the right to inherit from and through the child" when DFPS is appointed as the child's managing conservator. Compare id. § 151.001(a)(9), with id. § 153.371. There may be other minor differences.
2
Our decision in In re E.C.R. adds to our analysis. In that case, mother's rights to infant ECR were terminated after she abused an older child. The question before us was whether the reference to "abuse or neglect" in (O) requires a showing of actual, past-tense abuse or neglect or whether the reference can encompass circumstances that would "plac[e] the child's physical health or safety at substantial risk". We held that abuse or neglect is "used broadly" in (O) and "necessarily includes the risks or threats of the environment in which the child is placed." Two parts of our analysis are important to this case.
E.C.R. , 402 S.W.3d at 240.
Id. at 248.
The first is that we linked the phrase abuse or neglect in (O) with "[t]he standard used repeatedly throughout chapter 262", which is "danger to the physical health or safety of the child." The petition and affidavit that DFPS file before removal must "stat[e] facts sufficient to satisfy a person of ordinary prudence and caution that[ ] ... there is an immediate danger to the physical health or safety of the child". The trial court must make the same finding in an emergency order authorizing removal. After the full adversary hearing held a few weeks later, "the court shall order the return of the child to the parent ... unless the court finds ... [that] there was a danger to the physical health or safety of the child, ... which was caused by an act or failure to act of the person entitled to possession" and that the danger continues. In E.C.R. , we explained that the "danger" standard in Chapter 262 is "centered on risk, rather than just a history of actual abuse or neglect".
Id. at 247.
Id. § 262.102(a)(1).
Id. § 262.201(g)(1).
Id. § 262.201(g)(3).
E.C.R. , 402 S.W.3d at 247.
The second salient point from E.C.R. is how we determined that the predicate to (O)’s application had been met in that case: We looked to the record. We noted that the Department had followed the procedures in Chapter 262 by filing a conservatorship petition and removal affidavit that recounted mother's physical abuse of ECR's sister, for which she was arrested and charged; mother's prior involvement with authorities for abusing an older son; mother's history of leaving ECR with her boyfriend, a known criminal who is not ECR's father; and mother's incarceration. Though we acknowledged that the affidavit was "not evidence for all purposes", we said that it "show[ed] what the trial court relied on in determining whether removal was justified."
Id. at 248.
Id.
After the petition and affidavit were filed, the court issued an emergency temporary order that "found sufficient evidence ... that E.C.R. faced an immediate danger to his physical health or safety, that the urgent need to protect him required his immediate removal, and that he faced a substantial risk of a continuing danger if he were returned home". Finally, we pointed out that mother had not challenged those findings, and we cited authority that temporary orders in suits affecting the parent–child relationship are reviewable by mandamus. We held that this record "conclusively establishe[d] that E.C.R. was removed from [mother] under Chapter 262 of the Family Code for abuse or neglect".
Id.
Id. at 248 & n.8.
Id. at 249.
3
Here, too, the record contains sufficient evidence that the factual predicate to the application of (O) has been met. After DFPS filed its conservatorship petition and affidavit, the trial court signed a temporary emergency order under Chapter 262. This removal order expressly affects Mother's rights. It identifies her by name as a "parent" and a "Respondent". It orders her to take certain actions and notifies her of certain actions the court may take against her at the adversary hearing, including requiring her to comply with the Department's service plan. It specifically grants the Department "the right of physical possession" based on express findings that the Department made reasonable efforts to avoid "removal of the children ... from the home" and to make it possible for the children "to return home", but that "continuation in the home of [Mother] or [Father] would be contrary to the children's welfare".
Consistent with the removal order, the temporary order following the adversary hearing also identified Mother by name and found sufficient evidence that it was contrary to the welfare of the children to remain in the home of either Mother or Father; that reasonable efforts were made to prevent the children's removal and to enable them to return to the home of Mother or Father; and that a substantial risk of continuing danger existed if the children were returned to the home of Mother or Father. The order also directed Mother to comply with the Department's service plan.
By their clear language, these orders confirm that the removal order legally removed the children from both Mother and Father, regardless of who had legal or physical possession of the children at the time.
The Department's affidavit shows what the trial court relied on to find that continuation in the home of Mother would be contrary to the children's welfare. The affidavit recounts investigator Francis’ efforts in October 2019 to find Mother through "an [A]ccurint search" and Father's statement to Francis around the same time that he believed Mother to be incarcerated. Later, it contains this paragraph about Francis’ communications with Mother in February 2020:
LexisNexis Accurint "is a direct connection to public records to help verify identities, conduct investigations and detect fraud." Accurint , https://www.accurint.com (last visited May 25, 2023).
On February 18, 2020 I was able to make contact with [Mother]. The girls were in her custody and care for a long time. She had a daughter pass away, and she lost her mind about it. She signed the girls over to him during the divorce due to her issues after her daughter passed away. She moved here 5 to 6 months ago to be near the girls. She and [Father] cannot get along, they had a rough marriage with domestic violence involved. She has in the past had concerns regarding his aggression. She does have concerns with [Father] regarding drug and alcohol use. His anger is a lot
worse when he is using. She has been there in Clovis, going through a divorce with her now ex. She went to [Messila Valley] for a bit, to get her mind right and back on her meds. She has a job interview on the 20th. She is staying at the Hartley house, which is a domestic violence shelter there. She does intend to go back to court and fight for custody for the girls....
Though not a model of clarity or thoroughness, the affidavit reflects that Mother voluntarily relinquished custody of the children to Father despite a history of domestic violence and concerns over his aggression and substance abuse and that she lacked stable housing or employment. The trial court could have believed that the affidavit demonstrated "an immediate danger" to the children if they were placed in Mother's care.
Mother was represented by counsel at the full adversary hearing, held a few weeks after the temporary emergency order was signed. The transcript of that hearing is not in the record, but the hearing resulted in the trial court's signing another temporary order that makes the required "danger" finding and directs that A, G, and K remain in the temporary managing conservatorship of the Department. As in E.C.R. , there is no indication in the record of this case that Mother's counsel challenged the order by mandamus. In fact, there is no indication that Mother argued at any stage of the trial court proceedings that the factual predicate to (O) had not been met.
See E.C.R. , 402 S.W.3d at 248 & n.8.
Perhaps that is because of the uncontroverted trial testimony that DFPS refused to give the children to Mother because she tested positive for methamphetamine at the outset of the case. Here is the exchange between DFPS and Investigator Francis:
Q. Okay. After removal of the children, did you make contact again with [Mother]?
A. Yes, I did.
Q. Okay. And what did you and [Mother] discuss?
A. I explained to her that we had removed the children and why.
Q. Okay. Did you also ask her to drug screen?
A. Yes, ma'am, I did.
Q. Okay. And did that drug screen come out positive?
A. Yes, ma'am.
Q. Okay. And was that for methamphetamine?
A. Yes, ma'am.
Q. Okay. So at that point [Mother] was not appropriate for the children to reside with. Correct?
A. Correct.
Drug use is included in the list of behaviors constituting abuse under Chapter 261. And though Mother's positive test was not mentioned in the Department's removal affidavit, a parent's methamphetamine use surely poses "an immediate danger to the physical health or safety of [a] child" within the meaning of Chapter 262. Indeed, Mother's appellate counsel conceded as much at oral argument when he said: "But you know, she's using drugs. She can't keep a job. She don't have a home. She hasn't done anything to harm these kids yet, but in all likelihood, if we put those children back with her, something bad is going to happen". 4
Most, if not all, of the intermediate courts of appeals have rejected the argument that Mother makes here. Mother cites only a single case, In re J.E.H. , but it is inapposite. The child there was removed from father's care after the Department received a tip that father was driving while under the influence of marijuana with the child in the car. DFPS called father to testify on the opening day of trial, but then the court called a recess, and the trial did not resume until two months later. When it did, the Department rested without calling the caseworker to testify. The only testimony presented at trial was that of father and his sister. Not surprisingly, the court of appeals held that the Department had failed to carry its burden of proof on (O).
See In re S.N. , 287 S.W.3d 183, 188 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ("[W]e conclude that subsection (O) does not require that the parent who failed to comply with a court order be the same parent whose abuse or neglect of the child warranted the child's removal. Had the legislature intended such a requirement, it could have easily provided that conservatorship be ‘as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child by the parent. ’ "); see also 635 S.W.3d at 440 ("[T]he Department is not required to show that the parent who failed to comply with a court order is the same parent whose abuse or neglect of the children warranted the children's removal."); In re J.R.H. , No. 06-18-00052-CV, 2018 WL 6625886, at *4 (Tex. App.—Texarkana Dec. 19, 2018, pet. denied) (same); In re D.R.J. , 395 S.W.3d 316, 320 (Tex. App.—Fort Worth 2013, no pet.) (same); In re M.D. , No. 10-13-00005-CV, 2013 WL 1558012, at *2 (Tex. App.—Waco Apr. 11, 2013, pet. denied) (same); In re M.N. , No. 11-10-00129-CV, 2011 WL 917837, at *3 (Tex. App.—Eastland Mar. 17, 2011, no pet.) (same).
384 S.W.3d 864 (Tex. App.—San Antonio 2012, no pet.).
See id. at 870-871.
B
Concerns were raised at oral argument that DFPS may pursue termination under (O) rather than the endangerment grounds in (D) and (E) where (O) is easier to prove. Court-ordered service plans can be long and detailed. Some of the requirements are very specific, such as a counseling course with a specific counselor that must be completed by a specific date. Some of the requirements are vague and subjective, such as maintaining "regular contact" with the caseworker. These plans can be difficult—perhaps impossible—to comply with fully, especially if the parent has limited English proficiency or lacks reliable transportation, reliable internet access, or the ability to take time off work. At trial, DFPS typically demonstrates a parent's failure to comply with the service plan through the testimony of the parent's caseworker. In some cases, that could be a more straightforward path to a termination judgment for DFPS than putting on witnesses to make a case of endangerment would be. The more straightforward path is not always the right one, and our judicial antennae are raised and attuned to potential misuses of (O).
Tex. Fam. Code § 161.001(b)(1)(D) (placing the child in endangering conditions).
Id. § 161.001(b)(1)(E) (engaging in endangering conduct).
But we are satisfied that is not what happened here. To the contrary, this is exactly the kind of case that (O) is for. DFPS cannot leave a child with a parent whose conduct or home environment would endanger the child; several policy statements in the Family Code make that clear. DFPS had to pursue removal of A, G, and K from Mother once it determined that Mother could not provide a stable home environment for them. In a case like this one where the other parent's conduct directly caused DFPS’ involvement, none of the other Section 161.001(b)(1) grounds may provide a pathway to either reunification or termination. That is the work that (O) does. It gives a parent like Mother an opportunity to have the child returned to her by demonstrating her parenting ability through compliance with the service plan. But at the same time, if the parent in Mother's position cannot demonstrate her ability to provide a stable home for the child, then her rights to the child can be terminated, thereby clearing the path for the child's adoption.
The dissent proposes the hypothetical possibility of DFPS initiating termination proceedings against a mother who returns home from deployment to discover abuse of the children by the father. See post at 543–44 (Young, J., dissenting). Notably, the mother in the hypothetical does not have a long history of methamphetamine use and instability, and she did not test positive for methamphetamine at the outset of proceedings.
See Tex. Fam. Code § 262.001(b) ("In determining the reasonable efforts that are required to be made with respect to preventing or eliminating the need to remove a child from the child's home or to make it possible to return a child to the child's home, the child's health and safety is the paramount concern."); see also id. § 153.001(a) ("The public policy of this state is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; [and] (2) provide a safe, stable, and nonviolent environment for the child....").
See id. § 153.371(11) (providing that DFPS can consent to the adoption of a child for whom it has been appointed managing conservator "if the parent-child relationship has been terminated with respect to the parents").
C
The dissent seems to agree that removal of a child from a parent under Chapter 262 is a legal change and not merely a physical one, though it repeats that DFPS took possession of the children at Father's home, suggesting that the relocation was more important than it is. But the dissent asks: "[W]hat right was removed from Mother and transferred to the State?" As shown by the trial court's orders set out above, the children were transferred to DFPS as their conservator, temporarily ending both Mother's and Father's exercise of control of them without DFPS approval. The dissent seems to believe that the New Mexico divorce decree terminated all Mother's legal rights in her children, when it did not and could not do so. Mother's parental rights to her children were not at issue in her divorce as they are here. The divorce decree, based solely on Father's and Mother's stipulation, made Father the children's custodian, but it left Mother with the right to visitation as agreed by Father. The dissent argues that it was the extent of the divorce decree that left Mother with nothing for DFPS to remove. "[T]hings might be different", the dissent argues, if Mother had retained more custodial rights under the divorce decree than she did. So if Mother had been left with visitation one day a quarter, or a month, or maybe a week, instead of with Father's agreement, then the orders the court issued under Chapter 262 would actually have accomplished DFPS’ removal of the children from her. Surely such a rule would be unworkable. More importantly, there is no legal basis for it.
Post at 539 (Young, J., dissenting).
Id. at 537 (emphasis added).
Paradoxically, the dissent argues that if the termination of Mother's rights were reversed, DFPS could immediately refile removal proceedings to protect the children and, with no change in the situation other than the termination of Father's rights, could proceed exactly as before to terminate Mother's rights properly. In other words, if Father has parental rights, Mother has no rights to remove, but if Father's rights are terminated, the children can be removed from Mother, though possession and the right to custody have not changed. The dissent's position is illogical, but again, more importantly, the dissent provides no legal basis for it.
The dissent acknowledges that Mother's drug use renders her unfit. Mother acknowledges that herself. With this case having been in litigation for three years, the dissent would put both DFPS and Mother through another round to obtain what the dissent hopes, barring Mother's redemption, will be the exact same result. All this is necessary, the dissent warns, so that a mother returning from military deployment—only to find that in her absence, and without her knowledge, father has abused and neglected the children by relapsing into drugs—will not become "embroiled in a controversy with the State." In such a situation, DFPS would gladly have the children put with their mother, and if it did not take that action immediately, the military-veteran mother would easily complete any service plan that might be proposed. The dissent's trepidation over abuse of innocent parents in a case in which both parents are indisputably and by their own admission unfit is difficult to understand.
Id. at 543.
IV
Finally, we address Mother's challenges to the legal sufficiency of the evidence to support the trial court's findings that Mother failed to comply with her service plan and that termination is in the best interest of A, G, and K. We take them in turn.
Id. § 161.001(b)(2).
At oral argument, Mother's counsel acknowledged that "there's no question that she did fail to work the services. She did fail to remain drug free." Indeed, Mother's caseworker, ShaiAnne McAdoo, testified at trial that Mother:
• "hadn't been compliant with updating the Department on her changes of residence";
• was not able to maintain stable housing;
• "tested positive [for drugs] on her screenings" and did not get screened on some occasions, as requested;
• did not initiate individual counseling as required;
• did not complete a psychological evaluation;
• did not complete rational behavior therapy;
• did not complete parenting classes; and
• missed or failed to fully complete several drug screens.
With respect to a missed screening in December 2020, Mother admitted at trial that she was using methamphetamine at that time. When asked why by the Department's counsel, Mother responded, "[b]ecause it was the holidays and I wasn't around my girls." Mother also admitted to using methamphetamine in June and July of 2020, after the court ordered the service plan. When asked whether she "believe[s] it's necessary to be completely sober to be a good parent", Mother responded: "[N]o, I don't think that's a true statement."
In her brief, Mother relies on Section 161.001(d), which provides that a court may not order termination under (O) if the parent proves by a preponderance of the evidence that:
(1) the parent was unable to comply with specific provisions of the court order; and
(2) the parent made a good faith effort to comply with the order and the failure to comply with the order is not attributable to any fault of the parent.
Id. § 161.001(d).
Mother points to snippets of her testimony in which she characterized her compliance with various parts of the service plan differently than the caseworker did. She then asserts that "a combination of poverty, lack of transportation, and miscommunication all combined to result in [her] failure to comply fully with her service plan."
After summarizing the evidence, the court of appeals concluded that "the trial court could have, under the requisite standard, found the evidence sufficient to support termination of [Mother's] parental rights under section 161.001(b)(1)(O)." We agree with the court of appeals.
Mother also challenges the legal sufficiency of the evidence to support the trial court's best-interest finding. Rather than marshal the evidence to the Holley factors, Mother reurges her arguments that she "was the non-offending parent" and made a good-faith effort to comply with her service plan. She also argues that the children could be placed with her stepmother, Marilyn, with whom A, G, and K lived for seven years before going to live with Father. Marilyn testified at trial that she is willing to be a long-term placement for the children if need be.
In Holley v. Adams , 544 S.W.2d 367 (Tex. 1976), we gave a nonexhaustive list of factors that should be considered when determining the best interest of a child. The factors we listed are: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) their plans for the child; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent–child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. at 372.
The court of appeals acknowledged that Marilyn's testimony provides "some evidence in support of preserving [Mother's] parental rights to her children", but it concluded that the ample evidence of Mother's drug use throughout the children's lives, her continued drug use during the case, and her history of instability provided sufficient evidence to support the trial court's best-interest finding. Again, we agree with the court of appeals.
See id. at 443-444.
* * * * *
We hold that (1) the trial court did not lack jurisdiction over this case under the UCCJEA; (2) the record contains sufficient evidence that the children were "remov[ed] from [Mother] under Chapter 262 for abuse or neglect"; (3) there is legally sufficient evidence to support the trial court's finding that Mother failed to comply with her service plan; and (4) there is legally sufficient evidence to support the trial court's finding that termination is in the best interest of the children. We affirm the judgment of the court of appeals.
Justice Young filed a dissenting opinion, in which Justice Blacklock and Justice Busby joined.
Justice Young, joined by Justice Blacklock and Justice Busby, dissenting. Childhood in Texas should be an age of wonder and plenty, not privation or fear or neglect. Yet because of the failures of adults, innocent children across our State sometimes irretrievably lose some or all of the childhood they deserve. Whenever that happens, it is a tragedy for those children and for each now-broken family. It is also tragic for our State and its people, given the monumentally compelling interest we all share in the health, safety, and future of the youngest generation of our fellow citizens.
The children in this case are among those who have received less than they deserve. They cannot rely on their parents, which is one of the saddest conclusions any court can reach. The State's protection of these children, including from their parents—a subversion of the normal order, in which parents protect their children—therefore has been and remains necessary. On that point I agree with the Court.
But I cannot agree with the Court regarding how our law addresses these circumstances. Texas law provides potent tools to protect children, but—at this stage, on this record, and under the statutory provision on which the Court relies—the irrevocable termination of Mother's parental rights is not among them. To terminate any parent-child relationship under § 161.001(b)(1)(O), the State must satisfy multiple statutory conditions. One of paragraph O's antecedent requirements is that the child at issue was "remov[ed] from the parent" whose parental rights are at issue. Confirming that point, paragraph O contemplates "the return of the child"—that is, the restoration of the status quo ante. But no matter how we define "remove," these children were "remov[ed] from" Father, not Mother. A transfer to Mother would not be a "return" to her, either—another of paragraph O's requirements. And there is a third: Paragraph O only addresses removals to the State because of the targeted parent's "abuse or neglect." The children here, however, were removed from Father because of his abuse or neglect, not because of Mother's. As a matter of law, therefore, paragraph O does not even apply to this case.
This Court's cases sometimes call the provision "subsection O," but the statute itself denominates § 161.001(b)(1)(O) as a "paragraph." See Tex. Fam. Code § 161.001(b)(1)(M) (describing "terminat[ion] ... based on a finding" of "conduct ... in violation of Paragraph (D) or (E)"). The subsection is § 161.001(b), and § 161.001(b)(1) is the subdivision. Like the Court, I refer to paragraph O.
Neither the State nor the Court can show how any of these important requirements of paragraph O can be met here, much less under the statute's "clear and convincing" standard. Tex. Fam. Code § 161.001(b). Nothing justifies sidelining these unambiguous requirements. Tellingly, the lone but repeatedly cited precedent of this Court that is invoked to support today's judgment is wholly inapplicable. In In re E.C.R. , 402 S.W.3d 239 (Tex. 2013), the parent whose rights were at issue was the same parent from whom the child was removed, the same parent to whom a return of the child would go, and the same parent whose conduct constituted the abuse that led to the child's removal.
There is no good reason for the Court to weaken paragraph O's requirements so thoroughly. Doing so is not necessary for the State to be able to (lawfully) protect these and any other children using the many other available legal tools at its disposal. Even to obtain termination , § 161.001(b)(1) has multiple additional grounds that are available and, if the allegations are true, more appropriate. Why, then, is paragraph O the only ground before us? Because, as the Court acknowledges, paragraph O is just so easy for the State that there is often little incentive to go beyond it. Now there will be even less. Paragraph O's textual limitations represent an unsuccessful legislative attempt to confine that provision's use; the courts have instead allowed it to proliferate.
So in exchange for diluting unambiguous statutory requirements, what do we get? An even more expansive and undisciplined use of paragraph O. What a terrible trade. Rather than erode the statute and risk consequences far transcending this single case, we should reverse the judgment below. Because the Court instead ratifies a seriously mistaken understanding of paragraph O, I must respectfully dissent.
I agree with the Court that we have jurisdiction to resolve the appeal, see ante , Part II, and confine my dissent to the Court's analysis of paragraph O and to its judgment affirming the decisions below.
I
I share the Court's dim view of this case's history. Mother and Father consistently use drugs. Father is prone to domestic violence. Mother, deeming herself unable to care for the children, voluntarily relinquished custody to Father upon their divorce. The children often had no adult supervision at all. The list goes on. The Court rightly recognizes that these children have not received admirable or even acceptable parenting. Like so many other parental-termination cases that we see (and the People of Texas would be truly dismayed to realize just how many there are), it is terribly sad.
Fortunately, our law has many tools to protect and address the important rights of children when parents fall so far below our minimal standards. The most drastic such tool is to terminate the parent-child relationship. But termination is the last resort, not the first impulse; it ends one of the most "sacred" and "precious" bonds the law recognizes. See In re J.W. , 645 S.W.3d 726, 752 (Tex. 2022) (Young, J., concurring) (internal citations omitted). Termination, after all, threatens not just the right of a parent to retain a formal relationship with her child, but also the right of the child to retain such a relationship with her parent.
When the law requires termination, we must unflinchingly enforce it. But we should turn the sharpest of corners when doing so: "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" than usual. Id. at 751 (majority op.) (quoting In re K.M.L. , 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring)).
This termination has not turned sharp corners, at least as to Mother. I think it falters at the very first step—the premise that the law even authorizes that consequence under these circumstances. The Court finds the necessary authority within Texas Family Code § 161.001(b)(1)(O), which provides:
There is no dispute as to Father. The record focuses heavily on his behavior and the need for the State to remove the children from his custody. The judiciary was empowered to terminate his parental rights, and no challenge to that determination is before us.
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence: (1) that the parent has ... (O) 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 of Family and Protective Services 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) (emphases added).
The thrice-reiterated focus in that provision is on "the parent," which must refer to the same person each time it is used in the paragraph's single sentence. Nothing displaces the presumption of consistent usage and it is hard to see any linguistic way that "the parent" could mean someone different in any of its appearances. Each time "the parent" appears, it imposes another condition on paragraph O's applicability. Without the same parent meeting all three requirements, paragraph O cannot apply.
Accordingly, to take the three conditions as they would chronologically unfold in a case, here is the minimum the State must establish to invoke paragraph O:
• "abuse or neglect of the child" by the parent
• that led to "the child's removal from the parent"
• such that a "court order[ed]" service plan was created as a condition "for the parent to obtain the return of the child."
The State would have to show that all three conditions apply to Mother. Not even one of them does:
• Father's "abuse or neglect" is what led to the State's machinery cranking into gear.
• After the State got involved, Father tested the State's patience with the behavior that the Court describes, ante at 523–24, leading to "the child[ren]’s removal from [Father ]." Mother had no rights to possession, legally or physically; she could not so much as see them without Father's agreement. So the State certainly could not "remov[e]" the children from Mother.
• And because Father alone had all rights to the children, any "return of the child[ren]" would not have meant going to Mother .
In short, Mother cannot be "the parent" as paragraph O uses the term.
True, Mother clearly failed to comply with her service plan. See ante at 533–34. That fact is relevant to paragraph O, however, only if the antecedent conditions of paragraph O are met. One cannot blame bad weather in Chicago for a delayed flight if the reason it never left Miami was that the FAA deemed the airplane unfit for flight. Had Mother retained some rights of custody that the State could remove from her before issuing the service plan, things might be different; had the plane intending to depart from Miami been just barely airworthy enough to depart, bad weather in Chicago might be a culprit for its nonarrival there.
But the record shows that Mother could not implicate paragraph O. Father had sole custody and it was his malfeasance that led to the State's intervention. Because these points illustrate why it is mistaken even to proceed beyond the applicability of paragraph O (much less to address the "best-interests" analysis, see id. , Part IV), I will address them in more detail.
A
First, in no ordinary sense of the word "removal" were the children "removed" from Mother. How could they have been? Mother did not have legal or physical custody of the children. Her rights were not altered by the children's removal. As the Court acknowledges, Father had "sole legal care and physical custody" of the children at the time of removal. Ante at 523 (emphasis added).
I will spot the Court its expansive definition of removal. According to the Court, removal concerns not "just ... physical possession" and implicates a "bundle of conservatorship rights from one or both parents to DFPS." Id. at 526 (emphasis added). I assume that is right. But even so, it is just "one" and not "both parents" here. For it to be "both," each must have something that the State has removed. The Court's own definition cannot justify its outcome.
That is because the record resoundingly confirms in so many ways that the children were removed from Father alone. In its "Order of Termination," the trial court found that the status quo ante was the parents’ divorce decree, which is what granted Father sole custody. And the Court's chief authority from the record—the "affidavit in support of removal" that the Court cites over and over—illustrates my point:
• The affidavit mentions Mother in it occasionally, but only in the context of supplying information about Father.
• From its start, the affidavit makes clear that its "allegations" concerned only "the Neglectful Supervision of [A.A.], by her father. " (Emphasis added.)
• The "facts necessitating removal" section provides five bullet points summarizing the request for removal. Each of the five involves Father; Mother does not appear in a single one.
• In the four-page narrative following that high-level overview, the only mentions of Mother are to obliquely note her absence and the difficulty in finding her.
• Eventually, Mother herself got in touch with the State's investigator (the affiant). The affidavit then recounts the call that the investigator had with Mother, primarily to obtain Mother's perspective on Father.
• Consistent with the rest of the affidavit, its "conclusion" does not even mention Mother, but focuses exclusively on Father : "All reasonable efforts ... have been made ... to prevent or eliminate the need for removal of th[ese] child[ren] and to make it possible for the children to remain in the care of [Father]. It would be contrary to the safety and welfare of the child[ren] to remain in the custody of [Father]."
The Court could rightly rely on such a document regarding Father if he (or the removal of his rights) were at issue. But the record lacks any accompanying document for the Court to rely on regarding Mother. Understandably so: The children were not in Mother's custody and so there was no need or ability to remove them from her custody, physical or otherwise. The State could not "remove" them from her possession any more than it can "remove" the Hope Diamond from mine.
Thus, the Court's observation that "[t]he Department's affidavit shows what the trial court relied on [in its orders] to find that continuation in the home of [Mother] would be contrary to the children's welfare" cannot be relevant as to Mother. Ante at 529. There could be no "continuation" with Mother, of course. More importantly, the affidavit does not speak to any conclusion as to Mother. In fact, the affidavit concludes by saying that "[a]ll reasonable efforts ... have been made by [DFPS] to prevent or eliminate the need for removal of th[ese] child[ren] and to make it possible for the children to remain in the care of [Father]. It would be contrary to the safety and welfare of the child[ren] to remain in the custody of [Father]." Removal from Mother is not even mentioned.
The Court notes that "though Mother's positive test was not mentioned in the Department's removal affidavit, a parent's methamphetamine use surely poses ‘an immediate danger to the physical health or safety of [a] child.’ " Ante at 530. Agreed—such drug use poses a danger. And other provisions in § 161.001(b) address exposure to dangers. But the Court misses the point. The reason Mother's test is not included is because the affidavit only concerned removal from Father.
So what was removed from Mother by the State in these proceedings? Nothing. Before the removal of Father's rights, Mother had no rights (even to see the children) except at Father's sufferance. Once the State replaced Father, Mother still had no such rights (even to see the children) except at the State's sufferance. The State's removal of the children from Father, in other words, set forth no independent alteration to Mother's non-existent rights of custody or possession. Nothing changed for her : the State simply stepped into Father's shoes with respect to agreeing to any request that Mother may have made about access to the children.
I use the term "right" only colloquially. Because this right was totally dependent on someone else's approval, I am hesitant to call it a right at all. But it was certainly not one that was then removed. Mother's right to visitation, as framed by the Court, seems more akin to a right to request visitation—first of Father and then, when the State stepped into Father's shoes, of the State. The failure of Father (or the State) to agree to any request for visitation would not be the removal of a right, but a failure of an agreed-upon condition.
The Court actually confirms the point: "[T]he children were transferred to DFPS as their conservator, temporarily ending both Mother's and Father's exercise of control of them without DFPS approval." Ante at 532. Exactly. Mother had no exercise of control of the children before or after their transfer to the State. The children's removal from Father caused no further loss of rights to Mother.
The Court really has nothing else. From its first paragraph, it repeatedly says things like "[t]he court's order ended both parents’ legal custody of the children and transferred them to the Department's statutory conservatorship based on evidence of misconduct by both parents that amounted to abuse and neglect," id. at 522, or the "removal order expressly affects Mother's rights," id. at 529. But the Court never articulates what those rights are and how those rights were "expressly affect[ed]." When it comes to the question at the heart of this dispute—what right was removed from Mother and transferred to the State?—the Court is all hat and no cattle. To maintain the metaphor, the Court is bootstrapping. It can only appear to satisfy the "removal" requirement by conflating (a) the desired outcome (permanent termination of Mother's status as a mother) with (b) the necessary prerequisite for paragraph O's ability to achieve that outcome (some actual removal of the children from Mother—even in the rather abstract way that the Court frames removal—before a service plan was issued). Said differently, the ultimate termination depended on Mother's failure to comply with a service plan, but the issuance of a service plan that could affect termination under paragraph O required some initial "removal" of the children. The ultimate termination cannot itself be the initial removal of rights.
In short, all that Mother had, all along, was her mere status as the children's mother and the bare possibility of restoration. That meager but precious status is not something that the State could or did "remove" before Mother received a service plan. Removing that status from her is what the State hoped to achieve at the end. But to achieve that final result through paragraph O, the State had to remove the children from Mother at the beginning of parental-termination proceedings.
The Court expresses incredulity that paragraph O might not be able to reach someone who, because of her own failings, started out with so few rights. Ante at 532–33. But that gets the reasoning backward. We cannot start with the conclusion (this is an unfit parent ), then force paragraph O to accommodate the desired outcome (this paragraph allows termination here ).
Without such a showing, paragraph O has no power in this case. That paragraph's power—its rather fearsome and potentially abused power, as the Court also acknowledges, see ante at 531–32—lacks force unless "the parent" is one from whom the children can be "remov[ed]." Here, the children cannot have been—and thus were not—removed from Mother.
Beyond paragraph O's "removal" requirement, its "return" requirement provides another reason to reach the same result. The "court order" (the service plan) must be one "for the parent to obtain the return of the child who has been in" state custody. Tex. Fam. Code § 161.001(b)(1)(O) (emphasis added). According to the Court, paragraph O "gives a parent like Mother an opportunity to have the child returned to her by demonstrating her parenting ability through compliance with the service plan." Ante at 532 (emphasis added). It is the promise of a restoration of the status quo ante.
But because Father had sole legal custody, Mother could not obtain their "return." Return means "give back" as a transitive verb or "go back" as an intransitive verb. Return , Webster's New International Dictionary (2d ed. 1934). I can return something to you that I borrowed from you; I can return to where I was before. Neither works for these children vis-à-vis Mother. Again, both the Court and the temporary orders make several conclusory mentions to the children "return[ing] home" to Mother or that "continuation in the home of [Mother] ... would be contrary to the children's welfare." Ante at 529–30. But they cannot be "returned" (from State custody) to Mother because they were not removed (by the State) from her. Nor can they "return" to her home or "continue" living in her home because they were not there to start with. Restoring the status quo ante would mean their return to Father's care—an outcome that the law does forbid. But that tells us nothing about Mother.
B
Even if I could be persuaded that the removal was in any sense from Mother, that still would be insufficient. Under the statute, the relevant removal had to have been caused by Mother's "abuse or neglect." Tex. Fam. Code § 161.001(b)(1)(O). The Court accurately describes the abuse and neglect that the children wrongfully endured. But the abuse or neglect that led to their removal was committed solely by Father. Ante at 530. Had Father not fallen short, there would have been no investigation and no removal. The affidavit makes that point abundantly and painfully clear. Far from the statutorily required direct link between the removal and "the parent[’s]" conduct, however, the record offers only attenuation when it comes to Mother. Her conduct played no role in the investigation or subsequent removal of the children.
The Court's response is to blame Mother for abusing and neglecting her children because, long before, she left them with Father, who later abused or neglected them. Id. at 522–23. As unfortunate as that turned out to be, it has nothing to do with this removal, either legally or factually, and thus nothing to do with paragraph O.
Again, paragraph O—despite being treated as a general catch-all—is not drafted to cover every manner of sin. Other provisions of subdivision (b)(1) exist to address the allegations against Mother. They were not used.
To the contrary, the reason that Father had sole custody and total control was not merely Mother's acquiescence. Her lack of custody was instead the product of a New Mexico court order. That court expressly found that the new arrangement—giving Father custody—was in the children's best interests. The court found that "[Father] is a fit and proper person to have the sole legal care and physical custody of the minor children." If Mother's relinquishment of the children to Father was itself the "abuse" that paragraph O references, then it was abuse that the New Mexico state court validated. The State cannot plead ignorance of that divorce decree, which features prominently in the record. Indeed, the judgment in this case deems the divorce decree to be the status quo ante, as I discussed above.
Perhaps the New Mexico court was wrong in its finding about Father. Perhaps Mother was wrong, too. As she testified in this case, she judged herself to have been emotionally incapacitated and far less able to care for the children than Father, who "was doing better than I was doing at the time, so I figured they would be better with him." Perhaps she (and the New Mexico judge) were also wrong about Father's trajectory with respect to his anger management or his greater capacity to care for the children with his mother's help. Perhaps the "noticeable change in his anger" that Mother perceived was illusory. The shared error—expecting more from Father than Father ultimately gave—was unfortunate.
But it is extraordinary to deem that error as abuse —abuse that remained in hibernation until it manifested years later—that could constitute the foundation of a paragraph O termination. Frankly, I am astounded that the Court could deem Mother to have committed an act of abuse sufficient to warrant parental termination just for allowing Father custody when an American court found that to be the appropriate result.
The Court continues that, after the custody arrangement was settled by judicial decree, the children later alerted Mother to Father's subsequent abuse. That, too, the Court says, qualifies as Mother's abuse—even though she immediately alerted the Texas authorities, which investigated and ultimately charged Father. Ante at 523–24. Recall that Mother was totally dependent on Father at this point with respect to the children—yet she provoked him by reporting him and causing his arrest. Not good enough, the Court announces. The Court has less to say about what did not happen after her call. It admits that "[t]he incident led to Father's indictment ... for causing intentional bodily injury to a child." Id. at 523. But the incident did not lead to the children's removal—the affidavit in support of removal does not even mention it.
The Court's theory of how Mother's conduct had any causal relationship to the State's removal of the children is worthy of Rube Goldberg. A New Mexico court gave Father custody because it was in the children's best interests. And when Mother called the police because of Father's later behavior, the Texas government took no steps to change that custody arrangement; nothing in the record suggests that behavior had anything to do with the State's investigation of Father or its removal of the children. All its stated reasons are wholly separate. I do not see how Mother's conduct in either instance remotely qualifies as the "abuse or neglect" that paragraph O addresses.
It seems to me that the Court just needs something—anything—that remotely attaches to the statutory language. The Court defends its position with what I regard as true but utterly irrelevant: the principle that danger of abuse or neglect is "centered on risk, rather than just a history of actual abuse or neglect." Ante at 528 (citing E.C.R. , 402 S.W.3d at 247 ). To the extent that the Court means that Mother's behavior in leaving the children with Father was analogous to the prior abuse of one child that constituted a "risk" to another, as the Court held in E.C.R. , the New Mexico court's validating action (like the Texas authorities’ refusal to remove the children from Father) severs any causal link. To the extent that the Court believes that there is a risk of abuse or neglect if these children are to be placed with Mother, even though there has been no "history of actual abuse or neglect" from her yet, I readily agree. As the Court notes, even Mother agrees , via her counsel. Ante at 530–31. But that "risk" of abuse or neglect does not satisfy paragraph O; it was not why the children were removed. The State can protect the children, of course—but not by using paragraph O.
Ultimately, the Court's risk analysis and emphasis on E.C.R. are misplaced. Today's decision cites no other precedent from this Court to support its paragraph O conclusions, but the question here—whether the children were removed from Mother —was not even at issue in E.C.R. That case turned simply on whether risk could be considered in an analysis of abuse or neglect. We rejected the mother's argument that paragraph "O was inapplicable because [her] child was not removed for actual abuse or neglect, but only because of the risk of abuse or neglect." E.C.R. , 402 S.W.3d at 244 (emphasis added). That point is not in contention in this case. Abuse and neglect necessarily include risk. But such a risk analysis is dependent on the children (1) being removed from the parent whose rights are subject to being terminated and (2) because of the abuse or neglect (including risk ) of that parent. In E.C.R. , "the record conclusively establishe[d] that E.C.R. was removed from [his mother]" and that she was the source of the risk. Id. at 249. The record here, however, establishes neither of those things. If E.C.R. tells us anything useful for this case, it can only support my view, not the Court's.
I again note that rejecting the application of paragraph O does not equate to giving Mother free reign. A documented risk will allow the State to protect the children in other ways, such as by not allowing Mother actual custody pending completion of a (properly created) service plan or by bringing termination proceedings under other grounds. Thus, I can again agree that "[t]he trial court could have believed that the affidavit demonstrated ‘an immediate danger’ to the children if they were placed in Mother's care," ante at 530, without agreeing that this is relevant to the termination inquiry under paragraph O. The history that disturbs both the Court and me will be deeply relevant to whether the children are allowed to be in Mother's physical custody, and perhaps to a future termination proceeding, as was true in E.C.R. But for the risk analysis to be relevant in this proceeding brought under paragraph O, the children must have been removed from Mother due to her abuse and neglect. They were not. Paragraph O does not apply for this additional reason.
The Family Code provides for termination on different grounds—not under paragraph O, that is—for genuinely bad conduct. Among other things, a court may hold a parent responsible for "engag[ing] in conduct or knowingly plac[ing] the child with persons who engaged in" dangerous conduct or "knowingly plac[ing] or knowingly allow[ing] the child to remain in conditions or surroundings which endanger" the child. Tex. Fam. Code § 161.001(b)(1)(D), (E). Perhaps tellingly, Father's rights were terminated under those grounds—Mother's were not. Her rights were only terminated under paragraph O.
C
The Court's holding today could have profound consequences for other families. For one thing, eliminating core limitations of paragraph O creates a different regime for parental termination than the one that the legislature demands. The legislature's careful calibration and balance in the Family Code is not something that we should disturb. I hope that the Court's statement that its "judicial antennae are raised and attuned to potential misuses of (O)" will prove true. Ante at 531. But after today's decision, one might be forgiven for a measure of doubt.
More specifically, I fear the consequences for truly innocent parties who could lose their parental rights due to the fault of the other parent. What should they make of this Court's willingness to deem as "abuse" Mother's compliance with a New Mexico court that found Father "fit" enough to have "sole" custody and that this arrangement was in the children's best interests? And if that is not enough, what should they make of situations in which, unlike with the New Mexico divorce decree here, there is no judicial imprimatur of an agreement to share custody?
For such reasons, today's decision could plant the seeds of distrust between parents whom we expect to continue co-raising a child. Consider a mother who, through no choice or fault of her own, must be temporarily absent from her children. Perhaps she is deployed overseas by the military, earning a living for her family by working offshore on a rig for weeks or months, or forced through illness to be under medical care for an extended period. (Under some of these circumstances, particularly if the parents have divorced, it may be necessary or beneficial to give the other parent legal authority over the children, but for purposes of this analysis I doubt that it would matter much.) Suppose that during such an extended absence, the father goes off the rails. Under the Court's decision today, if the mother knew of any shadows in the father's past, the mother's very act of leaving the children behind with him could be deemed "abuse" even if she was utterly convinced that the father's demons would stay in his past.
Picture that mother coming home from deployment to find, to her dismay, the father addicted to drugs and alcohol. Removal to State custody from the father would be appropriate, but I think it would be too much if that act also took away the mother's rights under the theory that she herself had abused or neglected her children by leaving them in what she thought was the capable and loving hands of their own father. Now, instead of a well-deserved and happy homecoming, the mother finds herself embroiled in a controversy with the State. I would think that the mother in this story would not be the true cause of the abuse, neglect, and subsequent removal.
Perhaps the Court agrees—but its decision today is cold comfort for anyone ever in that situation. The Court's response? "[T]he military veteran mother would easily complete any service plan that might be proposed." Ante at 533. Maybe that parent will be able to satisfy the State; maybe not. As the Court itself noted only pages earlier in its opinion, "[t]hese plans can be difficult—perhaps impossible—to comply with fully," id. at 531, which surely makes the encouraging words to the military veteran a bit less cheery.
The frequent "impossibility" of complying with service plans raises a Pandora's box of other issues about paragraph O. And it perhaps explains why the legislature has tried to limit when paragraph O is available.
All of this could be avoided just by following paragraph O as the legislature wrote it. Doing so would take parental termination of the mother's rights off the table, even if the State found it necessary to subject her to serious scrutiny before allowing the children to live with her again. And I agree, of course, that unlike the mother in the illustration, Mother in this case is not a sympathetic figure. The Court attempts to downplay my "trepidation," id. at 533, mostly by continuing to highlight Mother's misconduct. "Notably," it states, "the mother in the hypothetical does not have a long history of methamphetamine use and instability, and she did not test positive for methamphetamine at the outset of proceedings." Id. at 531 n.47. Indeed—that is my whole point. This case does not involve innocent parties, which is why I am expressing concern about other parties. This Court's decisions cannot be confined to the parties before us; we grant review to set precedent for all other cases. The consequences of today's decision on innocent parties are among the decision's costs.
In short, I worry that holding that "Mother's misconduct in exposing her children to Father's abuse and neglect was itself abuse and neglect on her part," id. at 522, goes too far. A parent's informed choice to leave children with the other parent under the belief that the parent is no longer a danger and poses no threat should not become fodder for a sort of strict liability for neglect or abuse. The law should and does hold parents responsible for their own actions. But it is mistaken to hold them responsible for the actions, mistakes, or inactions of another when such vicarious liability is as attenuated as it is here—at least when it comes to unleashing paragraph O to totally terminate a parent-child relationship.
D
Lastly, while I don't think Mother's rights can be terminated under paragraph O at this point, this conclusion does not require ordering the children's return to her physical custody. Indeed, at oral argument, Mother's counsel agreed that, if the consequence of Father's termination and this litigation is that Mother is deemed to have any possessory rights to the children, the State could—and should—instantly intervene and prevent her from having actual, physical custody. Why? Because, as her counsel conceded with candor that I appreciate, "[Mother] hasn't done anything to harm these kids yet, but, in all likelihood, if we put those children back with her, something bad is going to happen."
Exactly: "in all likelihood" refers to risk. This is where the Court's analysis of risk from E.C.R. could come into play. The "risk" here comes from Mother's drug use and other serious deficiencies documented in the record. Multiple provisions of § 161.001(b)(1) might apply—including, if done properly, paragraph O.
Here is how paragraph O might apply in this very case, if used correctly. I see nothing that would require the State to forget the risks described above; if the State believes that such risk is real and ongoing, the State would have cause to remove the children from Mother for paragraph O's purposes. The removal would be from her constructive custody—it would, that is, constitute the removal of rights that first would be formally conferred on her, thus satisfying the paragraph's requirement. Upon that removal, a court could then issue a new service plan. If Mother, fully aware of the consequences of failure, is able to comply, then restoration may turn out to be possible. According to the Court, I "hope[ ]" that "another round" of litigation will lead to termination. Ante at 533. The Court is mistaken. In fact, what I hope for, in this case and in every case, is restoration: that the God-created bonds between parent and child might heal. I believe that each of my colleagues so desires. History and experience, of course, prove that many parents are incapable of such progress, which is why termination is an available option. If no progress can be made here—and I readily acknowledge, as Mother's counsel does, that the outlook is not promising—then paragraph O (along with other provisions) could be properly triggered and termination would be legally permissible.
Frankly, just as I see no reason why other paragraphs of § 161.001(b)(1) could not have been used, I see no reason why this process under paragraph O—one that respects the Family Code's requirements—could not have happened much earlier. Once the children were removed from Father, the State could have acknowledged Mother's possessory or custodial rights once he was out of the picture. And if the State deemed Mother herself to be a similar risk, it immediately could have taken steps to proceed against her the same way it proceeded against Father. For example, it could have obtained a comparable "affidavit in support of removal" explaining why removal from Mother was justified, including based on "risk." But nothing in this record suggests that the State did so—hence my conclusion about the result today—even though the State could have proceeded as I describe.
II
The Court describes my position not only as "illogical" but as devoid of a "legal basis." Ante at 532–33. I must respectfully disagree. Those who read the two opinions can decide which one has a firmer tether to the statute. In my view, at least, nothing in the Court's opinion disturbs my reading of paragraph O; nothing in it shows how the State has remotely satisfied paragraph O's antecedent requirements such that termination on that ground is even a plausible outcome on this record; and nothing in it provides any meaningful limit for future misuses of paragraph O.
I acknowledge the Court's frustration that I can agree that Mother is unfit yet disagree with today's judgment. E.g., id. at 533. I acknowledge, and indeed honor, its desire to end the litigation hovering over this family. Id. But while efficiency is not nothing, neither is it everything. The Court itself recognizes that "[t]he more straightforward path is not always the right one," id. at 531, and for the reasons I have stated, accelerating this termination by cutting some corners will cost us all far more than unrelentingly following the law would, even when—from the perspective of a single case—doing it right might seem futile.
In my judgment, the law does not yet authorize the courts to terminate Mother's parental rights on this record. I hope that I am wrong about the consequences of today's decision being felt elsewhere by future parties who are far less culpable. I am certain that my colleagues in the majority pursued the same goal that I have: reading the statute in its context to the best of our ability. Despite my reluctance to disagree with the Court, my reading of the statute compels me to respectfully dissent.