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holding that the factfinder remains "the sole arbiter of the witnesses’ credibility and demeanor"
Summary of this case from In re J.W.Opinion
No. 20-0378
05-21-2021
In the INTEREST OF J.F.-G., a Child
Robert Earl Henneke, Kerrville, Andrew Brown, Austin, for Amicus Curiae. Jonathan Sibley, Waco, for Other interested party Goonan, Mary J. Bill Davis, Austin, Judd E. Stone II, Barry N. Johnson, Plano, Atty. Gen. W. Kenneth Paxton Jr., Austin, Sterling A. Harmon, Seminole, Brent Webster, Houston, Gabriel C. Price, for Respondent. E. Alan Bennett, Waco, Maria Peña, for Petitioner. Spring R. Thummel, for Other interested party F.-G., J.
Robert Earl Henneke, Kerrville, Andrew Brown, Austin, for Amicus Curiae.
Jonathan Sibley, Waco, for Other interested party Goonan, Mary J.
Bill Davis, Austin, Judd E. Stone II, Barry N. Johnson, Plano, Atty. Gen. W. Kenneth Paxton Jr., Austin, Sterling A. Harmon, Seminole, Brent Webster, Houston, Gabriel C. Price, for Respondent.
E. Alan Bennett, Waco, Maria Peña, for Petitioner.
Spring R. Thummel, for Other interested party F.-G., J.
Justice Bland delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Boyd, and Justice Huddle joined.
When Julie was born, her father was a fugitive, having failed to report to prison to serve a four-year sentence for selling drugs. He previously had been convicted of other drug offenses. He reported to prison while Julie was an infant to serve his sentence. After eighteen months, he was released on parole. He then "almost immediately" committed robbery and was incarcerated for another seven-and-a-half years. Julie's father made almost no contact with Julie during his incarceration. He admittedly was unaware of concerning behavior by Julie's mother and the mother's boyfriend that put Julie at risk and eventually resulted in Julie's removal from the home.
We refer to the child using the court of appeals' pseudonym. See Tex. R. App. P. 9.8(b).
Julie's father emerged from prison when Julie was a pre-teen, happily situated with her foster family and her half-sisters. And although Julie's father took strides to reintegrate into the community and Julie's life, the trial court shortly thereafter terminated his parental rights. The court found that Julie's father had "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." It further found that termination of her father's parental rights was in Julie's best interest.
See id. § 161.001(b)(2).
The court of appeals affirmed, holding that sufficient evidence supports the trial court's decision. Julie's father petitioned this Court for review, contending that his incarceration, standing alone, is not legally sufficient evidence of endangering conduct. Because the evidence supports the trial court's finding that Julie's father engaged in conduct that endangered her physical or emotional well-being, we affirm.
612 S.W.3d 373, 383–84, 387 (Tex. App.—Waco 2020).
I
A
Julie's father has spent much of his adult life in prison as a result of his escalating criminal activity. At seventeen, he was convicted of possession of marijuana, a minor drug offense. In June 2009, he was convicted of possession of a controlled substance—either hydrocodone or cocaine—and placed on probation for five years. Four months later, he was convicted of selling marijuana and sentenced to four years in prison. Rather than reporting to prison as required, Julie's father absconded, and he incurred a fugitive charge. After Julie's birth in March 2010, he turned himself in and served eighteen months. Upon his release from prison, her father "almost immediately" committed robbery and was jailed pending trial. He was convicted and sentenced to another eight years in prison. Julie was just shy of two years old when her father returned to prison.
Julie's father was released on parole but served over seven years of his sentence.
During her father's prolonged absences, Julie grew up with her mother, her mother's boyfriend (whom Julie calls "dad"), and their two children, Julie's younger half-sisters. Over the years, the Department of Family and Protective Services investigated multiple reports of neglect. The Department ruled out some of these reports, but there was "reason to believe" several incidents of neglectful supervision. During this time, Julie's mother's boyfriend was on parole for drug distribution. Julie's father was unaware of the Department's concerns and investigations; during his incarceration, he communicated with Julie's mother only about three or four times a year.
Late one night in May 2017, Julie's "dad" (Julie's mother's boyfriend) drove Julie and his older son to buy food. Intoxicated and on drugs, he crashed his car, killing his son. Julie sustained severe facial injuries caused by sliding on gravel. A trial court sentenced Julie's "dad" to twenty years in prison on one count of intoxication manslaughter, to be served concurrently with ten-year sentences for two counts of intoxication assault.
During the Department's investigation following Julie's injuries, a hair follicle test confirmed that Julie's mother had been using cocaine. The Department quickly filed this suit to remove Julie and her half-sisters from the home, and the trial court granted temporary orders placing the children in foster care. The Department notified Julie's father (in prison) that Julie had been removed from her mother's care. Julie's father first learned of the circumstances surrounding the car accident when he was served with this suit.
About a year later, in May 2018, with the Department's agreement, the trial court permitted the Department to return Julie and her half-sisters to their mother on a monitored basis. The Department remained the children's temporary managing conservator. As part of the monitored return, the trial court ordered that Julie's mother's boyfriend, who was out on bond, be limited to twice-monthly supervised visitation in a public place. The trial court also ordered that he "not transport any of the children." When an investigator witnessed the boyfriend put the children in a car and get into the driver's seat, the trial court returned the children to their foster family, where they have remained since October 2018.
Meanwhile, still incarcerated, Julie's father appeared and answered the Department's suit in November 2017. Permanency reports to the trial court through November 2018 indicate that he had not engaged in services through the Department but had been in contact by letter. In February 2019, Julie's father moved to continue the final hearing, stating that he had "attended some classes while in prison" and anticipated that he would soon be released on parole. He was released on parole at the end of March 2019. The trial court granted the motion for continuance and set a new dismissal date.
Upon his release, Julie's father found employment. His mother offered him her residence in Tyler as a place to live. He also reconnected with Julie's mother, and she moved in with him at his mother's house. Julie's father planned for Julie and her half-sisters to live with them. In the six months between his release from prison and the final hearing, Julie's father tested negative for drugs and attended twice-monthly visitation with the children.
At the time of the final hearing, Julie's foster family had cared for her for over two years and wished to adopt Julie and her half-sisters.
B
At the final hearing, held in September 2019, the trial court heard testimony from Julie's mother and father, a Department caseworker, and a Department investigator. In addition, the trial court "at the request of [Julie's father], conferred with [Julie] with her attorney ad litem present." The mother's boyfriend, who is the father of Julie's two half-sisters, was incarcerated by that time and did not testify. The trial court admitted a psychological evaluation of Julie's mother as an exhibit.
Although the trial court noted the conference in its letter ruling to the parties, there is no reporter's record of it.
In that report, the mother "negated the relevance" of the Department's history of referrals based on reports of drug use and sales in the house and neglectful supervision, stating that her aunt who made the reports "lied on me a lot."
The caseworker recounted the events that took place after Julie's injuries in the car accident. She explained that Julie's mother allowed her boyfriend around the children, and one of the children indicated that the boyfriend drove them home from school, which disrupted the attempt at a monitored return in the summer of 2018. Later, the mother had "a few positive drug tests" for cocaine, namely a hair follicle test in November 2018 and a nail test in January 2019. The mother's boyfriend also had tested positive for cocaine. The caseworker reported that Julie was "doing great" in her foster placement.
On cross-examination, the caseworker acknowledged that Julie's mother and father had attended two or three therapy sessions, which had "been positive," including one immediately before the hearing. Between May 2019 and the final hearing in September 2019, Julie's father had visited with Julie twice a month at the Department's offices. The home that Julie's father lived in was suitable.
The investigator also described the events leading to the disruption of the trial court's monitored return in August and September of 2018. After several failed attempts to contact Julie's mother, the investigator went to speak with Julie and her half-sister at school. They reported that their mother's boyfriend had dinner at their house on a Sunday and took them to school the next morning. The investigator also witnessed the boyfriend placing the children into a car and getting into the driver's seat with the mother in the passenger seat. The caseworker stated that, although Julie's mother initially denied it, she eventually "broke down and confessed to [the Department] that he had been around the children."
Julie's mother testified as well. She explained that she began a relationship with her boyfriend right after Julie's father was arrested for robbery and went to prison. She raised Julie from birth to age seven until the Department placed Julie and her half-sisters in foster care after the accident. Contrary to the caseworker's and investigator's accounts, she denied allowing her boyfriend around the children during the monitored return. She contested the results of her failed drug tests, stating that they were "not accurate." She admitted, however, that she knew that her boyfriend had "a cocaine issue" as early as 2016, before the car crash in 2017. She understood that he ultimately tested positive for cocaine at the time of the car accident and tested positive for cocaine after the Department removed the children from her care.
Julie's mother immediately reunited with Julie's father upon his release from prison in March 2019. She testified that he sent the children birthday cards and wrote letters to them. She stated that she had completed the services that the trial court ordered and that her children desired to live with her and were "very well bonded" with her.
In his testimony, Julie's father admitted to his past crimes. He had contact with Julie's mother only three or four times a year and had not seen Julie from the time she was four years old until his release from prison six months before the final hearing. But he recounted steps he was taking to change his earlier conduct. He left gang membership while in prison and took cognitive intervention, anger management, and job training classes. He also completed twenty-nine hours of parenting classes after he became aware of this suit. Upon his release on parole, he engaged in services, was drug-free, and visited with a counselor two or three times.
He conceded that he was unaware of Julie's mother's drug use—or her boyfriend's drug use and criminal history—before the Department's suit. When he became aware, he believed Julie's mother's statement that the drug-test results were all false positives. He conceded that he had caused instability for Julie by being "in and out of prison" nearly all of Julie's life.
Despite the father's commendable post-release behavior, the trial court found "by clear and convincing evidence that the state ha[d] met the burden of proof to terminate [the father's] parental rights to his child on the E ground, and that terminating his parental rights is in the best interest of his child."
The court of appeals affirmed. The court held that legally and factually sufficient evidence supports the trial court's finding that the father had "engaged in conduct" that endangered Julie's physical or emotional well-being and also had "knowingly placed the child with persons" who had engaged in such conduct.
Id. at 382–84, 387 (quoting Tex. Fam. Code § 161.001(b)(1)(E) ). In a footnote, Chief Justice Gray dissented, contending that the majority had improperly attributed the mother's conduct to the father. Id. at 379.
In this Court, Julie's father argues that the evidence is legally insufficient to show that he committed any endangering conduct, urging that incarceration alone cannot support an endangerment finding under subsection (E). He further argues that no evidence supports the trial court's finding that he "knowingly placed" Julie with others who engaged in endangering conduct. The Department responds that Julie's father's criminal acts and drug use, resulting in his lengthy periods of incarceration and absence from her life for more than eight years, constitute conduct that endangered Julie's physical or emotional well-being.
In the alternative, Julie's father argues that the court of appeals erred in its factual-sufficiency analysis. However, "[w]e do not have jurisdiction to conduct a factual sufficiency review." In re H.R.M. , 209 S.W.3d 105, 110 (Tex. 2006) (per curiam) (citing Tex. Const. art. V, § 6 ). And although we can "ensure that the courts of appeals adhere to the proper legal standard of review," In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002), the father did not brief any argument that the court of appeals applied the wrong standard. We nonetheless conclude that the court of appeals applied the proper standard for a factual-sufficiency review, accurately citing our precedent and detailing the evidence supporting and opposing the trial court's findings. We therefore confine our review to the father's legal-sufficiency argument.
The Department alternatively responds that legally sufficient evidence supports the trial court's finding that Julie's father "knowingly placed" her with others who endangered her physical and emotional well-being. Because we hold that the evidence is legally sufficient to support the trial court's finding that the father's own conduct was endangering to Julie, we need not address the Department's alternative argument.
II
A
The United States Constitution and the Texas Constitution protect parents' rights to raise and nurture their children. For the State to deny these rights to a parent, it must establish by clear and convincing evidence a legal ground to terminate the parent's right and that termination is in the child's best interest.
In re N.G. , 577 S.W.3d 230, 234 (Tex. 2019) (per curiam) ("The United States Constitution and Texas Constitution provide parents due process rights as to the care, custody, and control of their children.").
In re A.C. , 560 S.W.3d 624, 630 (Tex. 2018). " ‘Clear and convincing evidence’ means 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." Tex. Fam. Code § 101.007.
This "high evidentiary burden" requires a "heightened standard of review" on appeal. It does not dispel, however, the deference that an appellate court must grant to the factfinder, who heard the witnesses and evaluated their credibility. As we have explained, our legal-sufficiency review "take[s] into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof." Because the factfinder "is the sole arbiter of the witnesses' credibility and demeanor," appellate review must defer to the trial court's factual determinations, even in parental termination cases. We "assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so," and we "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Our legal-sufficiency standard in parental termination cases "honor[s] not only the elevated burden of proof, but also the deference an appellate court must have for the factfinder's role."
N.G. , 577 S.W.3d at 235.
In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002).
In re J.O.A. , 283 S.W.3d 336, 346 (Tex. 2009).
J.F.C. , 96 S.W.3d at 266.
Id.
In re A.C. , 560 S.W.3d 624, 630 (Tex. 2018).
B
Section 161.001 of the Texas Family Code requires two findings to support termination of a parent's legal rights: (1) the parent's acts or omissions must satisfy an enumerated statutory ground for termination; and (2) termination must be in the child's best interest. In total, section 161.001 lists twenty-one grounds for termination. A trial court may conclude that a parent's conduct satisfies multiple grounds, but one predicate finding—coupled with a finding that termination is in the child's best interest—is enough to uphold the judgment on review.
Tex. Fam. Code § 161.001(b). "The second termination prong—best interests—is child-centered and focuses on the child's well-being, safety, and development." A.C. , 560 S.W.3d at 631.
In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003) ("Only one predicate finding under [the statute] is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest.").
In this case, the trial court found the statutory ground for termination under subsection 161.001(b)(1)(E). It permits a trial court to terminate parental rights if it finds that the parent has:
(E) 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[.]
Endangering conduct under subsection (E) need not "be directed at the child." Nor must the child "actually suffer[ ] injury." "Rather, ‘endanger’ means to expose to loss or injury; to jeopardize." In Texas Department of Human Services v. Boyd , we acknowledged that "Texas cases have considered the involuntary termination of the rights of an imprisoned parent, and have held that mere imprisonment will not, standing alone, constitute engaging in conduct which endangers the emotional or physical well-being of a child," but we nevertheless held that incarceration does support an endangerment finding "if the evidence, including the imprisonment, shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child." A parent's criminal history—taking into account the nature of the crimes, the duration of incarceration, and whether a pattern of escalating, repeated convictions exists—can support a finding of endangerment. Imprisonment thus "is certainly a factor" the trial court may weigh when considering endangerment.
Tex. Dep't of Hum. Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987).
Id.
Id. (citing Endanger , Webster's New Twentieth Century Dictionary of the English Language 599 (1976)).
Id. at 533–34.
See In re J.O.A. , 283 S.W.3d 336, 345–46 (Tex. 2009).
Boyd , 727 S.W.2d at 533.
The text of subsection (E) has remained constant since the enactment of the Family Code in 1973, even as the Legislature has reworked other existing grounds and added new ones through multiple revisions. Among other things, the Legislature added that a court may terminate parental rights if it finds that the parent has: "been convicted or has been placed on community supervision ... for being criminally responsible for the death or serious injury of a child"; "used a controlled substance ... in a manner that endangered the health or safety of the child"; or "knowingly engaged in criminal conduct" resulting in "imprisonment and inability to care for the child for not less than two years from the date of filing the petition."
Act of May 25, 1973, 63d Leg., R.S., ch. 543, § 1, sec. 15.02, 1973 Tex. Gen. Laws 1411, 1427 (providing for termination if 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").
Tex. Fam. Code § 161.001(b)(1)(L), (P), (Q). The Department did not plead these subsections as grounds for termination in this case.
Newer subsections of the statute identify particular circumstances in which a crime or imprisonment, standing alone, supports termination. When it added these grounds, however, the Legislature did not circumscribe subsection (E) or exclude incarceration from conduct that might endanger a child's physical or emotional well-being. Lengthy incarceration presents a risk of endangerment to the child's well-being—such a significant risk, in fact, that the Legislature provides for the pre-emptive termination of parental rights, even before the risk associated with incarceration manifests itself.
Four grounds added after subsection (E) address criminal activity. Id. § 161.001(b)(1)(L), (Q), (T), (U). The Legislature added subsection (L) in 1989. Act of May 23, 1989, 71st Leg., R.S., ch. 808, § 1, sec. 15.02, 1989 Tex. Gen. Laws 3673, 3674. Subsection (L) allows for termination where a parent has "been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child." Tex. Fam. Code § 161.001(b)(1)(L). The Legislature added subsection (Q) in 1997. Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec. 161.001, 1997 Tex. Gen. Laws 2012, 2015. Subsection (Q) provides for termination where the parent "knowingly engaged in criminal conduct that has resulted in the parent's: (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition[.]" Tex. Fam. Code § 161.001(b)(1)(Q). The Legislature added subsection (T) in 2005. Act of May 24, 2005, 79th Leg., R.S., ch. 508, § 2, sec. 161.001, 2005 Tex. Gen. Laws 1395, 1397. Subsection (T) allows for termination where the parent has "been convicted of: (i) the murder of the other parent of the child ...; (ii) criminal attempt under Section 15.01, Penal Code ...; (iii) criminal solicitation under Section 15.03, Penal Code ...; or (iv) the sexual assault of the other parent of the child." Tex. Fam. Code § 161.001(b)(1)(T). Finally, the Legislature added subsection (U) in 2017. Act of May 8, 2017, 85th Leg., R.S., ch. 40, § 2, sec. 161.001, 2017 Tex. Gen. Laws 99, 101–02. Subsection (U) provides for termination where the parent has "been placed on community supervision, including deferred adjudication community supervision ... for being criminally responsible for the sexual assault of the other parent of the child." Tex. Fam. Code § 161.001(b)(1)(U).
"The history of [the statute] and its statutory predecessors confirms" our interpretation. Pruski v. Garcia , 594 S.W.3d 322, 328 (Tex. 2020) ; see id. at 328 n.2 ("[T]his is the history of the legislation, not legislative history." (alteration in original) (quoting Ojo v. Farmers Grp., Inc. , 356 S.W.3d 421, 445 n.31 (Tex. 2011) (Willett, J., concurring in part))); see also Waak v. Rodriguez , 603 S.W.3d 103, 105–06 (Tex. 2020) (interpreting a statute by "examin[ing] its history").
The more recently added grounds for termination thus do not exclusively define the circumstances in which a parent's crimes or incarceration can support termination, as the dissent posits. To the contrary, in the years since our holding in Boyd that imprisonment may be some evidence of endangerment, the Legislature has expanded the grounds for termination, not curtailed them. The Legislature also did not amend the endangerment provision to provide that courts must not consider evidence of crimes and imprisonment under subsection (E). We expressly have held that a conviction can be "a relevant factor in establishing an endangering course of conduct" under subsection (E). In the dissent's view, a trial court must ignore evidence of criminal conduct and incarceration, however long and damaging the parent's absence is to a child's physical or emotional well-being, for purposes of subsection (E). Such a conclusion is contrary to the text of subsection (E), which does not say that termination may be based on endangering conduct except when such conduct leads to incarceration.
See Tex. Dep't of Hum. Servs. v. Boyd , 727 S.W.2d 531, 534 (Tex. 1987) (holding that "if the evidence, including the imprisonment, shows a course of conduct which has the effect of endangering the physical or emotional well-being of the child, a finding under [(E)] is supportable").
In re E.N.C. , 384 S.W.3d 796, 804–05 (Tex. 2012).
The grounds for termination are not mutually exclusive; rather, the same conduct may support multiple grounds and a finding that termination of a parent's rights is in the child's best interest. We agree that subsection (E) should not be read so capaciously as to "render the legislature's painstaking enumeration of other predicate acts superfluous." But under subsections (L), (Q), (T), and (U) a single criminal conviction may result in termination. These grounds allow the Department to act swiftly to protect children without specific evidence of long-term abandonment. In such cases, the State may "act in anticipation of a parent's abandonment of the child" due to incarceration, not in response to it. "Thus, if the parent is convicted and sentenced to serve at least two years and will be unable to provide for his or her child during that time, the State may use subsection Q to ensure that the child will not be neglected."
See In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002) ("While it is true that proof of acts or omissions under section [161.001(b)(1)] does not relieve the petitioner from proving the best interest of the child, the same evidence may be probative of both issues.").
Post at 319–20. In some cases, community supervision without incarceration is enough. See Tex. Fam. Code § 161.001(b)(1)(L), (U).
Tex. Fam. Code § 161.001(b)(1)(L), (Q), (T), (U).
See In re H.R.M. , 209 S.W.3d 105, 109–10 (Tex. 2006) (per curiam) (reversing court of appeals for failing to give due deference to the jury's fact findings supporting termination based on (Q) where the father introduced some evidence related to a potential parole but had multiple years remaining on his sentence, had twice been denied parole, and had not provided financial or emotional support or arranged care for the child in his absence).
In re A.V. , 113 S.W.3d 355, 360 (Tex. 2003).
Id. Although the Department did not plead for termination based on ground (Q), we note that the father was incarcerated for over two years.
The same is not true for subsection (E). As we have emphasized, under that provision, the mere fact of a conviction will not support termination. Nor does a crime become conclusive evidence of "endangering" conduct because it results in incarceration. But such evidence—which in this case includes multiple criminal episodes of escalating seriousness—together with the duration and consequences of the incarceration, is relevant when the resulting abandonment presents a risk, as it did here, to a child's physical or emotional well-being.
III
Julie's father committed increasingly serious crimes—among them, possession of a controlled substance, sale of marijuana, and robbery. The trial court could fairly consider these convictions—and their corresponding periods of imprisonment—under subsection (E). Her father's criminal record shows a pattern of escalating conduct, not an isolated incident. He did not stop engaging in criminal activity after Julie was born, when he would (or should) have been aware that criminal conduct, like committing robbery, risked separating him from Julie for years, as, in fact, it did. Her father's sale of illegal drugs qualifies as endangering conduct for similar reasons. Particularly significant is the duration of his imprisonment, which totaled more than eight years. Julie recently turned eleven. Before his release from prison six months before the final hearing, Julie had last seen her father when she was four years old.
See In re J.O.A. , 283 S.W.3d 336, 345 (Tex. 2009) ("We have previously said that endangering conduct is not limited to actions directed towards the child. It necessarily follows that the endangering conduct may include the parent's actions before the child's birth, while the parent had custody of older children, including evidence of drug usage." (citation omitted)).
There is sparse evidence that Julie's father supported Julie's physical or emotional well-being. His omissions, spanning throughout her childhood, exposed Julie to physical and emotional loss, as he did not care for, nurture, or protect her. In her father's absence, Julie's mother's boyfriend injured her. Julie's father testified that he did not know the details of Julie's living situation—and that she was at risk—until the Department initiated these proceedings. He argues that this lack of knowledge precludes any finding that he "knowingly placed" Julie with others who endangered her. But his lack of knowledge resulted from criminal conduct that led to his incarceration and his indifference to his daughter while he was incarcerated. The trial court could have viewed this testimony as evidence of his own omissions in caring for Julie's well-being.
We are required to view the facts in a light favorable to the findings of the trial judge, who heard the testimony, evaluated its credibility, and visited with Julie herself. In crediting the father's testimony about his contact with Julie—which even at face value was very limited—when there are reasons to disbelieve it, the dissent disregards our standard of review. We cannot substitute our judgment for the factfinder's.
Julie's father relies on our decision in In re E.N.C. , in which we rejected the notion that "[a]ny offense committed by a citizen that could lead to imprisonment or confinement ... establish[es] endangerment, simply because the parent's ability to be present in his children's lives would be uncertain." In that case, authorities had deported the father. In concluding that the evidence did not support termination, however, we noted that the father had never "abandoned his parental responsibilities." Instead, the "undisputed evidence" showed that the parents in that case "lived together as a family unit without apparent incident until they separated, and [the father] and his family remained a regular presence and source of support in the children's lives after he was deported." We noted the "important differences" between incarceration and deportation: "Unlike an incarcerated individual, a person who is deported is able to work, have a home, and support a family. More importantly, it is possible for the person's children to live with him." In contrast to E.N.C. , the record in this case supports the trial court's implied finding that Julie's father was not a presence or source of support in her life.
384 S.W.3d 796, 805 (Tex. 2012).
Id.
Id. at 805–06.
Id. at 806.
The dissent suggests that "criminal history," "imprisonment," and "normal disruptions in family life caused by imprisonment" are not enough to constitute a finding of endangerment. The "disruption" in this case was not "normal"—Julie's life was placed at risk while her father was completely absent from her life for more than eight years. Julie's mother admitted that she had contact with the father only three or four times a year. Leaving aside incarceration, an absence of that duration resulting from criminal conduct is sufficient evidence to establish a "pattern of conduct that is inimical to the very idea of child-rearing" that endangered Julie's physical or emotional well-being. The trial court, as the factfinder, could reasonably conclude that such a disruption is qualitatively different from a single, short-term incarceration.
Post at 319 (quoting Tex. Dep't of Hum. Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987) ).
In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002).
This is not to say that "mere imprisonment"—past or present—conclusively constitutes endangerment under subsection (E). Not all incarceration means that a parent will be absent from a child's life for a lengthy duration. In Julie's father's case, however, his absence from Julie's life for a lengthy duration was not uncertain; it was a reality.
Id.
Julie's father further argues that his engagement in services and his unimpeachable conduct during the six months before the final hearing conclusively negates the trial court's endangerment finding. We have emphasized, however, that a parent's short-term, positive, post-incarceration behavior does not nullify earlier endangering conduct such that the trier of fact must set the earlier conduct aside. As we observed in In re J.O.A. : "While the recent improvements made by [the father] are significant, evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of drug use and irresponsible choices." In that case, we criticized the court of appeals' legal-sufficiency review for "attributing greater weight to [the parent's] recent improvements and less to his past challenges." We did "not question the court's logic" but "reject[ed] its use ... as part of the legal sufficiency review." To employ such logic in this case would elevate our assessment of Julie's father's testimony over the trial court's assessment, in disregard of the appellate standard of review. That standard requires us to defer to the trial court's judgment of the credibility of the witnesses in a bench trial, even in parental termination cases.
283 S.W.3d 336, 346 (Tex. 2009). In J.O.A. , the father admitted to marijuana use before the children were born. Id. After the children's birth, he was incarcerated on domestic violence charges. Id. Upon his release, however, he "obtained steady employment, improved housing, and reliable transportation for his children." Id. He "attended parenting classes, exercised regular visitation, and passed three successive drug tests." Id. Still, he tested positive for marijuana shortly before the final hearing and remained delinquent in his child support. Id. Despite the strong evidence of his improvement, we concluded that legally sufficient evidence supported termination. Id. Similarly, in In re C.H. , we described aspects of the Father's conduct that not only supported the trial court's predicate finding of (E) but also supported its best-interest determination. 89 S.W.3d at 28–29 (holding that the court of appeals applied an incorrect factual-sufficiency standard and improperly disregarded evidence supporting the finding that termination would be in the child's best interest). We noted that the father, who was incarcerated at the time of trial, had not provided "emotional or financial assistance" to the child after his birth, had an "extensive criminal history," which continued after the child's birth, and had "no concrete plan to provide emotional or physical care" for the child. Id. at 20–21, 28.
J.O.A. , 283 S.W.3d at 346.
Id.
See In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005) (per curiam).
Although "parental rights are of constitutional magnitude, they are not absolute." It is imperative that courts recognize the constitutional underpinnings of the parent–child relationship, but courts must not sacrifice a child's emotional and physical well-being to preserve those rights when their corresponding obligations go unfulfilled for years. We decline the invitation to draw a bright-line rule that incarceration cannot support an endangerment finding under subsection (E). It is enough to properly apply our existing precedent and accord the trial court's findings the deference they are due. Not every course of criminal conduct will result in the tragic consequences of this case, where Julie and her father were separated for nearly all of her childhood.
C.H. , 89 S.W.3d at 26.
Id. ; In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003) ("[T]his Court has stated that ‘the rights of natural parents are not absolute; protection of the child is paramount.... The rights of parenthood are accorded only to those fit to accept the accompanying responsibilities.’ " (second alteration in original) (quoting In re J.W.T. , 872 S.W.2d 189, 195 (Tex. 1994) )).
* * *
Although her father's strides toward overcoming his past conduct are important in evaluating Julie's best interests, his rehabilitation does not negate his past criminal conduct and incarceration such that a trial court could not consider them to have been endangering to Julie. Based on the evidence before it, the trial court reasonably could have formed the firm belief that Julie's father engaged in endangering conduct under subsection (E). We note, specifically: his absence from her childhood for more than eight years; his history of dealing drugs; his choice not to monitor her safety during his incarceration; and his minimal effort to contact Julie or be part of decisions regarding her health, education, or well-being. Julie's father does not contest that termination of his parental rights is in Julie's best interest.
Accordingly, we affirm the judgment of the court of appeals.
Justice Blacklock filed a dissenting opinion, in which Justice Guzman, Justice Devine, and Justice Busby joined.
Justice Blacklock, joined by Justice Guzman, Justice Devine, and Justice Busby, dissenting.
The termination of parental rights "is one of the most intrusive actions available to the State." N.S.M. v. Dall. Cnty. Child Welfare Unit , 747 S.W.2d 814, 815 (Tex. App.—Dallas 1987, no writ). Because of the constitutional concerns implicated by the State's decision to sever the natural bond between parent and child, termination proceedings must be "strictly scrutinized," and involuntary termination statutes should be "strictly construed in favor of the parent." Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985).
Involuntary termination of a parent-child relationship requires two discrete findings, both by "clear and convincing evidence." TEX. FAM. CODE § 161.001(b). First, the parent must have committed one of the predicate acts described in subsections 161.001(b)(1)(A)–(U). Second, the termination must be "in the best interest of the child." Id. § 161.001(b)(2). The predicate finding precedes the best-interest analysis, and the two are distinct inquiries. By requiring the predicate finding, the legislature has denied courts the authority to terminate a parent-child relationship based solely on what judges or juries think is best for the child. See Tex. Dep't of Hum. Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987). The statutory predicates are important substantive protections for parents because they limit the pool of termination-eligible parents and thereby limit a court's authority to terminate parental rights based on generalized concerns about the parent's fitness or the child's well-being.
The trial court heard abundant evidence that the reckless behavior of Mother and her boyfriend endangered "Julie." At issue in this appeal, however, is whether Father—who was in prison when the endangering conduct occurred—himself engaged in "conduct ... which endanger[ed]" his daughter's "physical or emotional well-being" within the meaning of subsection 161.001(b)(1)(E). This Court has long held that "mere imprisonment will not, standing alone, constitute engaging in conduct which endangers the emotional or physical well-being of a child." Boyd , 727 S.W.2d at 533. After that holding, the legislature reinforced the point by identifying certain categories of imprisonment that would render a parent eligible for termination of rights. See TEX. FAM. CODE § 161.001(b)(1)(Q). The legislature also identified certain crimes that make parents automatically termination-eligible. See id. § 161.001(b)(1)(L). By identifying particular crimes and particular terms of imprisonment that make parents termination-eligible, the legislature ratified this Court's holding in Boyd that not all crimes and not all imprisonments make parents termination-eligible, whether under subsection (E)'s endangerment prong or otherwise.
Father committed a crime and went to prison for it. He has since been released, and the evidence shows he has made substantial progress toward turning his life around. For present purposes, the important point is that neither the crime he committed nor the time he served makes him eligible for termination of his parental rights. The Court nevertheless upholds the endangerment finding under subsection (E) based on little more than Father's past commission of crimes (none of which is termination-eligible on its own) and his lack of intimate involvement in his daughter's life from prison (a nearly impossible standard for imprisoned parents to meet).
The legislature's enumeration of termination-eligible crimes and termination-eligible prison terms should inform our understanding of whether a parent's criminal history or imprisonment history makes the parent termination-eligible. In my view, in order for Father's criminal history or imprisonment history to amount to endangerment under subsection (E), they must be accompanied by facts that make his crimes or his imprisonment uniquely dangerous to his child. No such facts exist here. The Court upholds the endangerment finding based solely on Father's criminal history, his imprisonment, and the normal disruptions in family life caused by imprisonment. If that is enough, then as a practical matter, it is no longer true that "mere imprisonment will not, standing alone, constitute engaging in conduct which endangers the emotional or physical well-being of a child." Boyd , 727 S.W.2d at 533.
* * *
Father was termination-eligible under subsection (E) if clear and convincing evidence showed that he "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." TEX. FAM. CODE § 161.001(b)(1)(E). In isolation, the provision can be read broadly, and some may be tempted to view it as a catch-all that essentially requires nothing more than a showing of one instance of bad parenting. But if subsection (E) is so capacious as to render the legislature's painstaking enumeration of other predicate acts superfluous—and to essentially conflate the predicate and best-interest inquiries—then one wonders why the legislature bothered with such a complex statute.
The better understanding of subsection (E) takes into account our obligation to "read [ section 161.001 ] as a whole and ... give effect to every part." Jones v. Fowler , 969 S.W.2d 429, 432 (Tex. 1998). On that score, section 161.001(b)(1)'s other enumerated grounds shed light on the sort of "endanger[ment]" contemplated by subsection (E). Subsection (Q) provides for termination if a parent has "knowingly engaged in criminal conduct that has resulted in [his] conviction" and "imprisonment and inability to care for the child for not less than two years from the date of filing the [termination] petition." DFPS does not argue that Father's incarceration meets these criteria. To conclude that his imprisonment alone nonetheless amounted to endangerment under subsection (E) would ignore the legislature's choice that only some imprisonment terms automatically make a parent termination-eligible. It is no answer to point out, as the Court does, that Father "committed increasingly serious crimes" that resulted in increasing "periods of imprisonment." Ante at ––––. Unless such crimes result in Father's imprisonment "for not less than two years from the date of filing the [termination] petition," his mere absence caused by incarceration cannot, standing alone, amount to "endanger[ment]" under subsection (E), unless (Q) is to be treated as redundant.
"[T]here are times when redundancies are precisely what the Legislature intended." In re Estate of Nash , 220 S.W.3d 914, 918 (Tex. 2007). But in general, "we should avoid, when possible, treating statutory language as surplusage." Id. at 917–18. We have been particularly careful not to read general language in a statutory provision so broadly as to encompass—and thereby render superfluous—specific items in a list within the same provision. Yet that is essentially what the Court does by allowing the general subsection (E) to swallow up the more specific subsection (Q).
See, e.g., Aleman v. Tex. Med. Bd. , 573 S.W.3d 796, 805 (Tex. 2019) ; TGS–NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 442 (Tex. 2011) ; Randol Mill Pharm. v. Miller , 465 S.W.3d 612, 617 (Tex. 2015) ; R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water , 336 S.W.3d 619, 628–29 (Tex. 2011).
The Court correctly observes that section 161.001(b)(1)'s "grounds for termination are not mutually exclusive" and that "the same conduct may support multiple grounds." Ante at 314. But there is a big difference between acknowledging some overlap among section 161.001(b)(1)'s various subsections and interpreting one subsection so broadly that it wholly encompasses the territory occupied by another. Reading these statutory provisions together, I would hold that unless a parent's period of imprisonment satisfies subsection (Q), imprisonment on its own cannot make a parent termination-eligible under subsection (E).
Similarly, subsection (E) must also be read in light of the grounds listed in subsections 161.001(b)(1)(L), (T), and (U). These subsections provide for termination based on a conviction for enumerated crimes. All agree that Father was not convicted of a crime on any of these lists. The Court nevertheless upholds the endangerment finding based on Father's criminal history, without any explanation of how his commission of these particular crimes endangered his child. To hold that his convictions show a "pattern of escalating conduct" that "endanger[ed]" his daughter under subsection (E) reads away the legislature's careful choice to make only certain convictions—and not others—a basis for termination.
Statutory history further highlights the flaws in the majority's reading of subsection (E). In 1987, this Court held that "mere imprisonment will not, standing alone, constitute ... conduct which endangers the emotional or physical well-being of a child." Boyd , 727 S.W.2d at 533. The legislature added subsection (Q) in 1997. See Act of May 19, 1997, 75th Leg., R.S., ch. 575 § 9, sec. 161.001, 1997 Tex. Gen. Laws 2012, 2015. Against the backdrop of our statement in Boyd , the addition of subsection (Q) is best understood as a legislative decision that in certain cases imprisonment alone would justify termination. We presume, of course, that "the Legislature selected the statute's language with care, choosing each word for a purpose." City of Dallas v. TCI W. End, Inc. , 463 S.W.3d 53, 55 (Tex. 2015). To hold that an imprisonment term falling short of that described in subsection (Q) can by itself constitute "endanger[ment]" under subsection (E) would subvert the legislature's apparent intent in (Q) to specify the duration of incarceration that will automatically support termination.
"[T]his is the history of the legislation, not legislative history.... [E]xamining how an enacted statute changes over time.... lend[s] helpful interpretive context," as such changes "boast the imprimatur of the Legislature as a whole." Pruski v. Garcia , 594 S.W.3d 322, 329 n.2 (Tex. 2020) (quoting Ojo v. Farmers Grp., Inc. , 356 S.W.3d 421, 445 n.31 (Tex. 2011) (Willett, J., concurring in part)). This Court frequently consults statutory history in order to better understand legislative text. See, e.g., id. at 328–29 ; Waak v. Rodriguez , 603 S.W.3d 103, 105–09 (Tex. 2020).
Finally, to the extent there is doubt about subsection (E)'s scope, I would follow this Court's previous direction by "constru[ing] involuntary termination statutes in favor of the parent" in cases of doubt. In re E.N.C. , 384 S.W.3d 796, 802 (Tex. 2012). This rule of construction is no arbitrary thumb on the scale. Rather, it derives from Texas law's longstanding recognition that a parent "has ... a paramount right to the custody of his infant child," and that "[t]he breaking of the ties which bind the father and the child can never be justified without the most solid and substantial reasons." State v. Deaton , 93 Tex. 243, 54 S.W. 901, 903 (1900) (quoting State ex rel. Herrick v. Richardson , 40 N.H. 272, 275 (1860) ). "[E]ven if the interpretation of [subsection (E)] adopted by the Court today were equally persuasive[,] ... we should prefer the interpretation" that provides greater protection for the "unalienable rights" of parents, which are among the rights "retained by the people under the Ninth Amendment." In re H.S. , 550 S.W.3d 151, 177–78 (Tex. 2018) (Blacklock, J., dissenting).
* * *
The Court agrees that imprisonment alone cannot support an endangerment finding, but it upholds the finding here by reasoning that Father's incarceration for robbery was the culmination of "increasingly serious" convictions "and their corresponding periods of imprisonment." Ante at 315. The facts showing endangerment on which the Court relies are all either the commission of crimes, terms of imprisonment, or the typical disabilities associated with imprisonment. The Court emphasizes Father's "criminal history—taking into account the nature of the crimes, the duration of incarceration, and whether a pattern of escalating, repeated convictions exists." Ante at 313. In the Court's view, because Father "committed increasingly serious crimes," including "possession of a controlled substance, sale of marijuana, and robbery," "[t]he trial court could [have] fairly consider[ed] these convictions—and their corresponding periods of imprisonment—under subsection (E)." Ante at 315.
Obviously, a criminal history of escalating severity is not a mark of good character. That does not mean such a criminal history, on its own, endangers a child under the meaning of subsection (E). Again, if it did, there would be little reason for the legislature to bother enumerating specific crimes for which conviction alone makes the parent termination-eligible. Unless subsection (E) is to swallow everything in its path, we must require evidence that Father's particular crimes or Father's particular imprisonment posed particular dangers to his child.
Such evidence is lacking here. The bulk of the State's endangerment case focused on the actions of Mother and her boyfriend while Father was incarcerated. As for Father, most of the criminal history the Court says the trial court could "consider" in deciding whether he endangered his daughter happened before his daughter was born. All of Father's drug-related offenses occurred before Julie's birth. Unlike most parental-rights termination cases, there is no evidence Father had a drug problem or participated in any drug-related activities after his child was born. The Court nevertheless counts his "history of drug use" against him. Ante at ––––. I fail to understand how drug use before a person becomes a parent can possibly be construed as endangering future children the person did not know would exist at the time of the drug use. Indeed, the Court acknowledges that the only evidence about Father's history with drugs during his daughter's lifetime cuts the other way: "In the six months between his release from prison and the final hearing, Julie's father tested negative for drugs and attended twice-monthly visitation[s] with the children." Ante at 309. Father did commit robbery after his daughter was born. Earlier, he also incurred an evading arrest charge after his daughter was conceived, because he "wanted to see [his] daughter born." There is no other criminal history after her birth. The Court seems to acknowledge that Father's robbery itself did not endanger his daughter, which is why the Court must bundle the drug-related offenses together with the robbery before concluding that the total package of criminal history supports an endangerment finding. Under this line of reasoning, robbery committed when the child is young may or may not endanger the child. If robbery is the culmination of an "increasingly serious" criminal history dating to before the child's birth, there is sufficient evidence of endangerment. But if there is no criminal history before the child's birth, there is no "increasingly serious" criminal history, and the robbery standing alone may be insufficient evidence of endangerment. One way or another, it seems to be Father's actions before his daughter was born that are the deciding factor in the Court's conclusion that Father's "increasingly serious" criminal history amounts to endangerment. I cannot agree with the Court that pre-parenthood crimes can be evidence of endangerment to as-yet-unconceived children.
Again, the Court does not suggest that Father's robbery itself endangered his daughter. Instead, it is the cumulation of his criminal acts—and particularly the fact that they resulted in his incarceration—which the Court says endangered her. The Court says that incarceration alone is not enough. Yet the Court also says a crime that is not itself endangering becomes endangering when it results in incarceration. If incarceration alone is not enough, how can a crime be endangering just because it results in incarceration? Cf. In re C.D.E. , 391 S.W.3d 287, 297 (Tex. App.—Fort Worth 2012, no pet.) ("[T]hat Father's imprisonment exposed the children to an unstable lifestyle" was "insufficient to support" endangerment finding.).
To demonstrate how Father's imprisonment endangered Julie, the Court describes what it calls Father's "minimal effort to contact Julie or be part of decisions regarding her health, education, or well-being" during his incarceration. Ante at 318. In the Court's view, Julie's father's "omissions ... exposed Julie to physical and emotional loss, as he did not care for, nurture, or protect her." Ante at 315. Of course, a dramatically decreased ability to "care for, nurture, [and] protect" one's children is an inevitable consequence of every imprisonment. A parent's imprisonment will always disrupt family bonds, usually to the detriment of children. If we take seriously our prior holding that imprisonment alone is not enough to show endangerment, it cannot be the case that the normal reduction in a father's ability to nurture his children due to his imprisonment amounts to endangerment under subsection (E).
The Court incorrectly states that "[i]n the dissent's view, a trial court must ignore evidence of criminal conduct and incarceration, however long and damaging the parent's absence is to a child's physical or emotional well-being." Ante at 314. To the contrary, my view is that evidence of criminal conduct and incarceration can be considered, but it is the State's burden to show that the incarceration or the crimes posed a particular danger to the child. For instance, a parent who commits a felony while knowing that his incarceration would deprive his child of any responsible caretaker may have endangered his child under subsection (E). Here, however, there was no evidence of Mother's instability or drug use until well after Father's imprisonment.
On the spectrum of incarcerated fathers, the evidence of this father's effort to maintain his fatherly role from prison is actually better than might be expected. During his imprisonment, he "communicated with Julie through cards, letters, and the occasional telephone call." 612 S.W.3d 373, 388 (Tex. App.—Waco 2020). Once he "receiv[ed] notice of the potential termination," he "participated in the proceedings as best he could considering his incarceration." Id. at 384. While in prison, he took classes to prepare for life after his release. Id. at 383. "The classes included cognitive intervention, parenting, and anger management" as well as "classes to help him transition to life outside of prison, including prevention of alcohol and drug addiction, lifestyle changes, and managing a successful parole." Id. Upon his release from prison, "he engaged in services, was drug-free, and visited with a counselor two or three times." Ante at 310. He had "unimpeachable conduct." Ante at ––––. He "found employment" working two jobs, secured a "residence in Tyler" suitable for him and his family, continued to "test[ ] negative for drugs," and he "attended twice-monthly visitation[s] with the children." Ante at 309; see also 612 S.W.3d at 383. He "paid his parole fees," "assisted Mother in paying off significant traffic fines," and "has not violated the terms of his parole." 612 S.W.3d at 383.
At bottom, the flaw in the Court's reasoning is that it "seeks to create one good argument by combining two bad ones." Austin v. Mich. Chamber of Commerce , 494 U.S. 652, 680, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990) (Scalia, J., dissenting). Father's incarceration does not support an endangerment finding. Nor do any of his convictions. Although neither is enough, the Court holds that together they satisfy subsection (E). Of course, incarceration and convictions usually go together. If their confluence amounts to endangerment, it rings hollow to continue to say that "mere imprisonment will not, standing alone, constitute engaging in conduct which endangers the emotional or physical well-being of a child." Boyd , 727 S.W.2d at 533.
The court of appeals also found "evidence in the record from which the trial court could conclude that Julie would be placed in a situation that endangered her physical and emotional well-being" if Father had custody of Julie. 612 S.W.3d at 384. The court of appeals faulted Father for his forward-looking intent to have Mother, Julie, and Julie's siblings "live with him as a family." Id. The Court correctly avoids this flawed line of reasoning. Subsection (E) is explicitly backward-looking. Its placement prong is violated only if the parent "knowingly placed the child with persons who engaged " in endangering conduct. A parent's future plan to place his children with people the court deems dangerous is not a violation of subsection (E).
The Court also correctly avoids holding Father accountable for the endangering acts of Mother and her boyfriend. DFPS argues that Father "knowingly placed" Julie with her mother, who later endangered her, and that this is enough to show that Father violated the placement prong of subsection (E). That is wrong. One parent does not "place" his children with their other parent when he is absent. See, e.g., In re E.N.C. , 384 S.W.3d at 806 ; Walker v. Dep't of Fam. & Prot. Servs. , 251 S.W.3d 563, 566 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (Walker did not "knowingly place[ ] the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children" because "Walker was in jail at the time of [mother's] actions that led to the termination of her parental rights" and because mother "was the children's mother at the time CPS intervened, therefore establishing she had custody of the children"). Furthermore, Father did not even know of Mother's actions until DFPS intervened. See 612 S.W.3d at 385 ("There is nothing in the record to indicate that Father was notified of any of the prior [DFPS] investigations into [Mother and boyfriend] or that he otherwise knew of the conditions in which Julie was living until after the children were removed in 2017.").
This is not the only case in which DFPS has found fault with a father for having the noble goal of reuniting his children and their mother to "live with him as a family." 612 S.W.3d at 384 ; see also, e.g., In re J.W. , No. 10-18-00344-CV, 2019 WL 5078678 (Tex. App.—Waco Oct. 9, 2019, pet. denied). While I acknowledge that some parents are utterly incapable of caring for their children no matter the circumstances, I am troubled by the frequency with which the government takes the position in parental-rights cases that parents endanger their children by seeking to hold their troubled families together. To tell a mother that the only way to keep her children is to deny them their father—or to tell a father he must deny his children their mother, as was done in this case—is to demand by government coercion the destruction of a family. This is a gravely disquieting use of state power, however troubled the family may be. It is done by threatening the most horrific consequence imaginable for a loving parent—the loss of his children. I would like to think this only happens in Texas when all other conceivable possibilities have been exhausted, but I am not sure.