in the Interest of J.W., a Child ( 2022 )

Supreme Court of Texas
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No. 19-1069
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In the Interest of J.W., a Child
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On Petition for Review from the
Court of Appeals for the Tenth District of Texas
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Argued September 15, 2021
JUSTICE LEHRMANN delivered the opinion of the Court, in which
Chief Justice Hecht, Justice Bland, Justice Huddle, and Justice Young
joined.
JUSTICE YOUNG filed a concurring opinion.
JUSTICE BOYD filed a dissenting opinion.
JUSTICE BLACKLOCK filed a dissenting opinion, in which Justice
Devine and Justice Busby joined.
In this difficult parental-termination case, we examine the legal
sufficiency of the evidence to support the jury’s finding, by clear and
convincing evidence, that Father’s parental rights to his child should be
terminated. After a thorough review of the record, we hold that the jury
reasonably could have formed a firm belief or conviction that (1) one
statutory predicate ground for termination was met and (2) termination
was in the child’s best interest. However, we also hold that another
statutory ground was improperly submitted to the jury as part of a
broad-form termination question. Because we cannot discern whether
the jury terminated Father’s rights on an invalid ground, and because
he preserved the charge error, we reverse the court of appeals’ judgment
as to Father and remand for a new trial.
I. Background
Mother and Father were married in February 2016. Mother had
two children, “Jason” and “Doug.” Her parental rights to her younger
son, Doug, had been terminated in 2011 on the grounds that she
(1) “knowingly placed or knowingly allowed [him] to remain in
conditions or surroundings which endanger [his] physical or emotional
well-being” and (2) “engaged in conduct or knowingly placed [him] with
persons who engaged in conduct which endangers [his] physical or
emotional well-being.” TEX. FAM. CODE § 161.001(b)(1)(D), (E). Both
children live with Jason’s biological father, and Mother visits them
often.
According to Kelly Allen, a supervisor with the Department of
Family and Protective Services who participated in the investigation
involving Doug, the case was opened because of concerns that Mother
was using drugs and was not meeting Doug’s medical needs. Allen
testified that Doug, who has a medical condition involving deterioration
of the muscles in his legs, was almost seven years old at the time of the
investigation, had never been enrolled in school, could not read or write,
and had not been provided the walker, wheelchair, therapy, or pain
medication he needed. She was particularly concerned that Mother had
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filled her own prescription “for an opiate” but had not obtained Doug’s
medication.
Allen also described two incidents in which Mother “absconded”
with the children. Early in the investigation involving Doug, when
Mother was informed that the Department would be removing him from
her care, Mother left the Department’s office with him and disappeared
for over a week until law enforcement located them. She ultimately
pleaded guilty to interference with an investigation, a misdemeanor
offense, and was sentenced to 100 days in county jail. During a different
Department investigation concerning Jason, law enforcement was called
to locate him and Mother after she took him from the home of his
biological father.
Mother learned that she was pregnant with J.W. in July 2016,
five months after she and Father were married. 1 At the time, Mother
worked for Sanderson Farms, a poultry-processing company, and had
developed work-related respiratory issues for which she was taking
Promethazine, a prescription medication that can contain codeine, an
opiate. According to Father, Mother told him that she was concerned
she had developed an opiate addiction that needed to be addressed in
light of the pregnancy. They were referred to a facility in Florida where
Mother could undergo a detox regimen, with inpatient treatment to
follow. Mother entered the facility shortly before Thanksgiving and
1 At one point, Mother named a different man as J.W.’s father on an
application for government assistance, testifying that she did so because she
did not want Father to know she was receiving benefits. Father took a
paternity test confirming that he is J.W.’s biological father.
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completed the five-day detox program. However, she refused any
further treatment and instead returned to Texas. Father testified that
she left the facility because it had confiscated her Promethazine and
“wouldn’t let her take” it.
When Mother returned from Florida, Father started working on
a large project in Houston and was away from Mother for “most
of . . . January and into February.” Later in her pregnancy, Mother
began treatment at a methadone clinic associated with a substance-
abuse treatment center in Houston. Mother does not drive, and Father
drove her from College Station to the clinic each day for two or three
weeks. Mother reportedly planned to enter the affiliated treatment
center, but she never enrolled and gave birth to J.W. unexpectedly at
home on April 24, 2017.
Mother and J.W. were immediately transported by ambulance to
the hospital, where J.W. was treated for respiratory distress caused by
aspirating meconium into his lungs. In evaluating the cause of J.W.’s
respiratory distress, the hospital conducted drug tests on both J.W. and
Mother; Mother’s urine tested positive for opiates and amphetamines,
and J.W.’s tested positive for opiates. A sample of J.W.’s meconium
collected on April 25 tested positive for opiates, amphetamines,
benzodiazepine, barbiturates, and methadone. Dr. Khaled Hilal, J.W.’s
treating neonatologist, testified that the benzodiazepine and
barbiturates could be explained by medications the hospital had
administered when J.W. was admitted. The source of the amphetamines
was never identified, but Dr. Hilal agreed that some prescription
medications can cause a positive test, although the codeine that likely
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caused the positive opiate test would not have caused the positive result
for amphetamines. In light of the positive drug tests, the hospital
referred the case to the Department.
On April 28, J.W. began showing signs of withdrawal; Dr. Hilal
described J.W. as inconsolable, jittery, sweating, hypertonic, not
sleeping, and experiencing poor weight gain and loose stool. The
hospital began administering morphine on April 30 to treat his
symptoms and weaned him off the medication over a ten-day period.
The hospital also adjusted his formula to counteract his poor weight
gain.
In the meantime, Department investigator Madison Gresset
received the referral on April 25 and conducted an initial investigation.
When the results of the meconium drug screen came back on May 1, a
hospital social worker told Gresset that one of the substances for which
J.W. tested positive was methamphetamine, an illegal street drug, but
the parties agree that this was a mistake and that neither Mother nor
J.W. has ever tested positive for that drug. When Gresset spoke to
Father about the test results, he reported that he did not know Mother
had used any substances and had no knowledge of how they could have
entered her system. He described Mother as a “free spirit . . . coming
and going as she pleased” from their home. Gresset attempted to speak
to Mother about the results the same day but was unable to locate her
at the hospital. The following day, the Department was informed that
Mother and Father had an attorney.
On May 17, two days before J.W. was discharged from the
hospital, the Department filed for emergency removal and sought
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temporary managing conservatorship of J.W., 2 which the trial court
granted. The Department had considered placing J.W. with Father
rather than seeking removal, but Father expressed that he was not sure
he could act as an independent caregiver for J.W. at that time. Gresset
was also troubled by Father’s denial of knowledge about Mother’s
substance use and was concerned that he was missing warning signs
and justifying her behavior.
The Department considered and ultimately ruled out several
other possible placements suggested by J.W.’s parents. Father’s two
brothers and a family friend informed the Department that they
supported Father but did not want to be considered as placements for
J.W. The Department ruled out the household of Cecilia and Cecilio
Salas, the mother and brother of Mother’s former fiancé who had passed
away, because of concerns about a suspected romantic relationship
between Mother and Mr. Salas and its effect on the family’s ability to be
objective about Mother and protective of J.W. Mother and Mr. Salas
denied such a relationship, though according to a conservatorship
caseworker with the Department, Father had previously described Mr.
Salas as being “infatuated” with Mother. Finally, Father proposed that
he and J.W. could move in with Mother’s sister, Nicole Taylor, and
requested that the Department conduct a home study. According to
Gresset, the Department had concerns about Taylor’s protectiveness
2 Before J.W.’s discharge, the Department had instructed the hospital
that contact between the parents and J.W. had to be supervised, at least in
part because of the incident involving Mother’s taking Doug to prevent his
removal.
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and whether her limited mobility, which was the result of a car accident
years earlier, would allow her to be an independent caregiver if
necessary. The Department therefore “wanted to have a very thorough
look at her home and her home environment” before determining
whether she was a viable long-term placement option.
Department supervisor Kelly Allen described the references
collected during the home study for Taylor as “indicat[ing] that she
would struggle to care for a child based on her own [medical] needs,”
leading the Department to question whether she could provide an
appropriate home for J.W. Allen further testified that Taylor
subsequently informed the Department she no longer wanted to be
considered as a placement for J.W. because she was concerned that
Mother’s presence in her home could jeopardize Taylor’s visitation rights
with her own children, who were in their father’s custody. Taylor denied
ever withdrawing from consideration as a placement.
J.W. was discharged from the hospital on May 19, and, after
failing to find a suitable relative placement, the Department placed him
with an unrelated foster family with whom he has lived ever since.
Following an adversary hearing held on May 31–June 1, the trial court
issued temporary orders naming the Department temporary managing
conservator, requiring Mother and Father to comply with the
requirements in the Department’s service plan, and approving visitation
at a minimum of once per week for a two-hour period. Among other
things, the service plan required Mother and Father to maintain a safe
and stable home environment, submit to random drug tests as requested
by the Department, contact Department caseworkers at least twice a
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month, attend supervised visits with J.W., complete a psychological
evaluation and follow recommendations, and attend individual
counseling. Mother was also required to complete inpatient and
outpatient drug treatment.
At trial, Department caseworkers testified at length about the
parents’ actions in relation to the service plan. Mother completed
parenting classes, but her attendance at individual counseling sessions
was “very poor.” She completed a psychological evaluation in February
2018 with Dr. Matthew Ferrara, 3 though he testified that the tests he
administered indicated Mother’s answers were unreliable and that she
exhibited significant positive response bias, meaning she
underestimated the scope and intensity of her problems and provided
answers in an effort to appear more “virtuous” than she actually is.
Mother also missed “quite a few” of the weekly visits with J.W., which
she attributed to not wanting to get him sick. As for the required drug
testing, Mother missed twelve of fourteen scheduled drug tests,
resulting in those missed tests being deemed positive. 4 A July 20, 2017
test was positive for methadone, explained by Mother’s resumption of
3 Mother initially scheduled a psychological evaluation with Dr. Paul
Damin, but she testified that she left his office without seeing him because the
receptionist was rude to her. She then scheduled an evaluation with Dr. Ebony
Butler, but she left in the middle of the appointment because, according to
Mother, Dr. Butler got mad at her and acted unprofessionally.
4 Mother attributed some of the missed drug tests to conflicts with
scheduled visits with J.W. and others to her view that “no matter what I did
for the Department, it wasn’t going to change anything.”
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treatment at the methadone clinic after J.W.’s birth, and a February 8,
2018 test was positive for morphine and codeine. 5
Mother refused to participate in an inpatient drug-treatment
program, but she did begin an intensive outpatient program at All About
Recovery, a facility in Houston, in July 2017. She was unsuccessfully
discharged from the program in late September due to excessive
absences. Mother reentered the program in early October, completed all
the sessions, and was given a “successful but guarded” discharge in
December 2017 based on an incident involving both Mother and Father
that occurred after her last session. Specifically, Mother was asked to
provide an exit urine sample and was required to be observed by a
facility staff member. While waiting for Mother to prepare herself, a
staff member observed Father exiting the men’s bathroom with a full
specimen cup and handing it to Mother, who was exiting the women’s
bathroom. Mother and Father were told that the facility could not
accept the specimen in light of the irregularity, and a counselor testified
that Mother and Father left the facility before they could be told that it
was still willing to allow Mother to provide a proper sample. Mother
and Father denied the incident, and Mother testified that she did not
provide another sample because she was told to leave.
5 According to Mother, the February drug test was explained by
medication doctors had given her during an emergency-room visit in December
2017. Mother said she was unable to provide records of that visit because she
had used her friend’s name, as she did not have insurance at the time. When
asked about the incident, Mother testified that “my friend was the one that
said I was her” and that Mother did not realize what had happened until after
she was treated.
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As to Father’s service plan, the Department agreed that he
satisfied several of the requirements. He completed parenting classes
and individual counseling, 6 had a stable retirement income, and
attended all but two or three of the weekly visits with J.W. The
Department waived the requirement that he obtain a psychological
evaluation and did not require him to submit to any additional drug
testing after his initial negative test. However, the Department’s
position at trial was that Father failed to comply with the service plan’s
requirements that he “maintain a safe and stable home environment”
and “contact [the Department] caseworker at least twice a month.”
With regard to Father’s maintaining contact with the
Department, Allen testified that his contact was “excellent” during the
first few months of the proceedings, but at some point after July 2017
“he would no longer speak to us,” apparently at Mother’s behest. Allen
stated that Mother would answer Father’s phone, tell him not to talk to
the Department, and hang up. When they came to the Department’s
office for weekly visits with J.W., Mother would not look at or speak to
anyone and would tell Father to “shut up” if he attempted to speak,
resulting in “very little meaningful contact” with either parent. Father
attributed the change in attitude to the Department’s making it clear at
a family group conference in July 2017—which Mother did not attend—
6 In the court of appeals, the Department argued that Father did not
complete the counseling requirements, but the Department does not make that
argument in this Court, and we do not consider it.
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that its goal was to terminate his and Mother’s parental rights. 7 In any
event, as noted, Father attended almost all the weekly visits with J.W.,
which took place at the Department’s office.
With respect to maintaining a “safe and stable home
environment,” the Department discussed the condition of Father’s
residence, the lack of a concrete plan for independently raising J.W., and
Father’s ongoing relationship with Mother. Concerns about Father’s
residence, which Father had owned for approximately forty years, were
based on two home visits occurring on May 31, 2017, and June 20, 2018.
Gresset conducted the first visit and described the house as being
“unsafe for a child.” She testified that she could not physically enter
some of the rooms because objects “completely overwhelmed all of the
surfaces.” This included the room in which Mother and Father “had
started the process of putting the crib together but there were just
innumerable items piled upon each other, making it very difficult to
navigate.” Gresset also described a hole in the hallway ceiling that had
gray and black color around the edge, suggesting water damage.
Gresset took photographs of the home that bear out her description and
show rooms overflowing with trash, loose cables, clothes, and other
miscellaneous household items, including an ashtray filled with
cigarette butts indicating smoking in the house was a common
7Allen testified that the Department’s “primary” goal was unrelated
adoption; that its “concurrent” goal, which “the Department works
simultaneously,” was family reunification; and that the goals can switch
during the proceedings if the parents make progress. She stated that this was
explained at the family group conference.
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occurrence. Gresset did not observe anything that she would consider a
“biohazard,” such as fecal matter or insects.
Department caseworker Jennifer Smith visited the residence in
June 2018, approximately four months before trial. At trial, she was
shown the photographs from the previous visit, which she described as
showing the house to be unsafe for a young child, and she stated that
Father had done nothing to address those issues. She also noted being
“hit with an overwhelming odor of stale cigarette smoke as well as fresh
cigarette smoke” when she entered the home and observed an ashtray
filled with cigarette butts apparently belonging to Mother. Smith
believed it was “unrealistic” to think J.W. would never be in the home if
Father regained custody, so she offered to walk through the home with
him and make suggestions about how to make it safe for a toddler.
Father declined and did not permit her to take photographs of the house.
Father did not contend at trial that his home was suitable or safe
for a child. Rather, he testified that he and Mother had never intended
to raise J.W. in that home and that, even before J.W. was born, they
intended to live with him and raise him in Taylor’s apartment. He
stated that this had been the plan throughout the proceedings and that
the Department had been aware of it since before J.W. was discharged
from the hospital. Father further testified that he and Mother had filed
for divorce the week before trial in order to give Mother a fresh start in
Houston, where she had been living with the Salas family, and to give
Father a chance to be a father to J.W. He explained that his plan was
to reside temporarily at Taylor’s apartment with J.W. while he sold his
house, and then move to the Fort Worth area to be close to his family.
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He also testified that Mother loves J.W., has “kind of got her life back
together,” and has been sober for a long time, but that he would not allow
J.W. to be around her if he believed she was under the influence of
anything.
The Department’s witnesses disputed both whether there had
been a consistent plan to raise J.W. in a safe environment and whether
Father had demonstrated his ability to put J.W.’s needs above Mother’s.
Gresset testified that at the beginning of the investigation, her
understanding was that Mother and Father lived together in the home
Father owned, and she had no reason to believe they intended to raise
J.W. anywhere other than that home before the Department got
involved. Taylor testified that discussions with Mother and Father
about Taylor’s assisting them with J.W. and being a possible placement
began a few weeks after J.W. was born, calling into question Father’s
assertion that they had planned to move in with Taylor all along. And
as noted, Allen testified that Taylor had withdrawn from consideration
as a placement earlier in the proceedings, though Taylor disputed that
assertion and testified that she was still open to letting Father and J.W.
move in with her.
The Department also discussed ongoing uncertainty about
Mother’s and Father’s living arrangements over the course of the
proceedings and whether their planned divorce was “in name only.”
Wendy Arline, a Department courtesy worker who assisted with setting
up services for Mother in Houston, testified that scheduling issues had
arisen because the parents sometimes reported they lived in Houston
and sometimes reported they lived in College Station. Mother had
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reportedly been living in Houston with the Salas family for over a year
at the time of trial but was not listed on their apartment lease and was
seeing a therapist in College Station. Mother reported to the
Department in April 2018 that she and Father planned to get a divorce,
but Father also reported that they continued to spend nights under the
same roof on a regular basis. On June 15, 2018, Arline made an
unannounced visit to the apartment where Mother lived with the Salas
family, and Father answered the door “look[ing] like he had just woke[n]
up.” Five days later, Smith visited Father’s residence in College Station,
and he informed her that Mother had been there earlier that day and
had just left to go back to Houston. He also stated that he was Mother’s
primary source of transportation.
Allen described additional instability with respect to Father’s
living situation and plans for J.W. When questioned whether Father
had continually expressed his intent to live with J.W. at Taylor’s home,
Allen replied:
It’s actually the opposite of that, and – and it does go
towards stable home. [Father] has said his home would be
his primary residence with the child. He’s indicated that
the home of Nicole Taylor, [Mother’s] sister would [be] the
primary residence. He has said that he will move into a
home near his brother’s in the North Texas area.
So in fact he has given us numerous possible
locations where he and the child will live, but has never
made any steps to prepare these homes to live there. And
in fact on Friday when he indicated he would be living
possibly with Nicole, who is [Mother’s] sister, when we
asked to see the home he said the room still wasn’t ready.
Allen further noted that Father “had tons of character witnesses who
would drop anything and do anything for him” but “18 months into the
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case, his house is in disarray, he doesn’t have a solid plan for where the
baby is going to go, he doesn’t . . . have a car . . . to put the baby in.” The
concern about Father’s car was that it remained full of trash, bottles,
and choking hazards and was so cluttered that, according to Smith, it
did not appear that “a car seat could even be put in the back seat of the
car for the child.” The back windshield, which Father explained had
been hit by a pellet while he was driving on the highway about a month
before trial, remained “completely broken and crushed in,” with glass
shards on the inside of the car.
Smith also discussed a visit with Father at her office on October 5,
2018, only a few days before trial. Father was “very friendly” as he
always was, but their conversation left her with “some concerns.”
Specifically, Father stated that he “feels a very strong calling to help”
Mother and remains her primary source of transportation even though
she lives in Houston. They discussed an incident that occurred in March
2017, approximately one month before J.W.’s birth, in which Father
allowed a friend of Mother’s who had recently been released from prison
to stay in their home because, although he “was not crazy about the
idea,” he “didn’t have the heart to tell her no.” While staying with them,
Mother’s friend “overdosed on something” and had to be taken to the
emergency room. Father similarly reported allowing a “friend of a
friend” of Mother’s, who Father believed had just gotten out of jail, to
stay in his home over the preceding summer because, again, he “didn’t
really have the heart to tell her no.”
According to Smith, Father also reported that Mother had told
him she wanted to have more children with him in the future and that
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“he told her that they had to wait until after this case was done.” This
conversation caused Smith to question whether Father genuinely
intended to separate from Mother and whether he could adequately
protect J.W. given his knowledge of Mother’s history, the circumstances
surrounding J.W.’s birth, and Mother’s continuing issues. Father
recalled the conversation with Smith differently, testifying that he and
Mother intended to finalize the divorce, that he knew a new case could
be opened against him if he regained custody of J.W. and failed to protect
him, and that he had no plans to have more children with Mother.
Mother similarly testified that she wanted Father to have the
opportunity to raise J.W. and that she could and would “stay away” if he
told her to.
Father’s discharge summary from his counseling sessions in the
spring of 2018 also contributed to the Department’s concerns about his
ability to protect J.W. Father’s counselor testified that in her view,
Father believed whatever Mother told him, minimized her drug use, and
made excuses for her behavior. Consistent with that pattern, Smith
noted that during her visit to his home in June 2018, Father stated that
he did not believe Mother posed any danger to J.W. and that the
Department had been called initially only because of Mother’s history
with her older children. When asked about the fact that J.W. tested
positive for opiates when he was born, Father reportedly said that it had
been “a very slight issue,” that “the doctor said it was moderate,” and
that J.W. had been fine after a three-day hospitalization. Father denied
this description of the conversation, testifying that he did not
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characterize the incident as a “slight issue” and reported only what the
doctor had told him about J.W.’s symptoms being moderate.
In addition to disputing some of the caseworkers’ testimony about
the course of events after the Department got involved, Father
presented several witnesses who testified about his character. By those
accounts, Father has a history of volunteering for charitable causes,
including the Boys and Girls Club. Friends and family testified that he
was happy and excited about being a father and that they believe he
would be a good parent and would be protective of J.W. And Father’s
brother testified that if Father moved to the Fort Worth area with J.W.,
the family would be supportive and would help them find a place to live.
J.W.’s foster mother testified that in her interactions with Father,
he had been very kind and genuinely interested in J.W.’s health and
welfare. She testified that she loves J.W., that she and her husband are
willing to adopt him, and that she wants what is best for him. She also
said that regardless of the result, she believes it is important for J.W. to
have the opportunity to know Mother and Father if he wishes. Father
similarly testified that if J.W. were returned to him and the foster
parents “wanted to see [him] some time, . . . that would be fine.”
Summarizing her opinion that termination of Father’s parental
rights would be in J.W.’s best interest, Smith explained:
I believe that in terminating [Father’s] parental rights,
[J.W.] would be able to be in an environment that is safe
and appropriate where he is protected; where his needs are
not only met but placed first; where his social and
emotional needs are met; where he’s kept safe from drug
use, criminal involvement, even elements in his
environment that can be dangerous to him. I believe that
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it is in his best interest to be in an environment that will
keep him safe.
The Court Appointed Special Advocate (CASA) assigned to J.W.’s case
also testified that she believed termination was in J.W.’s best interest.
She explained that she did not “say that lightly” because “they’re loving
parents, but they’re not capable of taking care of this child adequately
in my opinion.”
At the conclusion of the five-day trial, the jury was asked two
broad-form questions: whether the parent–child relationship between
Mother and J.W. should be terminated and whether the parent–child
relationship between Father and J.W. should be terminated. The jury
was instructed that to terminate the relationship as to Father, it had to
find by clear and convincing evidence that termination was in J.W.’s best
interest and that “at least one of the following events has occurred”:
(1) Father knowingly placed or knowingly allowed J.W. to remain in
conditions or surroundings that endanger his physical or emotional well-
being, see TEX. FAM. CODE § 161.001(b)(1)(D); (2) Father engaged in
conduct or knowingly placed J.W. with persons who engaged in conduct
that endangers his physical or emotional well-being, see id.
§ 161.001(b)(1)(E); and (3) Father failed to comply with the provisions of
a court order that specifically established the actions necessary for him
to obtain the return of J.W. who has been in the temporary managing
conservatorship of the Department for not less than nine months as the
result of his removal under Chapter 262 of the Family Code, see id.
§ 161.001(b)(1)(O). The jury was instructed similarly as to Mother,
although two additional predicate grounds—involving prior termination
of parental rights as to another child on endangerment grounds and use
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of a controlled substance in a manner that endangered J.W.’s health or
safety—were also submitted for the jury’s consideration.
Father objected to the broad-form submission; that is, he objected
to the three predicate grounds and best interest “being lumped together”
into a single question. The trial court overruled that objection, and the
jury found by clear and convincing evidence that both parents’ rights
should be terminated. Consistent with that verdict, the trial court
rendered a final order of termination.
Father appealed, arguing the evidence was insufficient to support
the jury’s findings as to the three predicate grounds as well as the jury’s
best-interest finding. Father presented as an alternative issue that “if
there is evidence to support the jury’s predicate finding under one
ground, the Court must nonetheless reverse and remand for a new trial,
as Father objected to the trial court’s broad-form submission because
there was no evidence to support at least one predicate.” Mother’s
attorney filed a detailed Anders brief in the court of appeals, stating that
after a thorough examination of the record for any potentially
meritorious issues, she had identified no nonfrivolous issue to raise in
the appeal. The court of appeals affirmed as to both parents. That
judgment is final as to Mother, who did not petition this Court for
review.
With respect to Father, the court of appeals initially held that the
evidence was legally sufficient to support the best-interest finding and
to support the predicate ground under Section 161.001(b)(1)(O)—failure
to comply with a court order that established the actions necessary to
obtain J.W.’s return. 2019 WL 1966798, at *4–6 (Tex. App.—Waco May
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1, 2019). Because only one predicate ground is necessary to support a
judgment for termination, In re A.V., 113 S.W.3d 355, 362 (Tex. 2003),
the court of appeals did not address Father’s sufficiency challenges to
the two predicate grounds under Subsections (D) and (E) involving
endangerment, see 2019 WL 1966798, at *4. The court of appeals also
did not address Father’s assertion that the trial court erred in
submitting a broad-form charge to the jury, holding that the issue was
inadequately briefed. Id. at *7.
Shortly after the court of appeals issued its opinion, this Court
decided In re N.G., 577 S.W.3d 230 (Tex. 2019). In that case, we held
that due process requires appellate review of a challenged finding under
Section 161.001(b)(1)(D) or (E), even if sufficient evidence supports a
different predicate termination ground, because of the potential
consequences of a Subsection (D) or (E) finding with respect to parental
rights to a different child. Id. at 235; see TEX. FAM. CODE
§ 161.001(b)(1)(M), (b)(2) (providing for termination of parental rights if
the court finds by clear and convincing evidence that (1) the parent’s
rights to another child were terminated based on a finding under
Subsection (D) or (E) and (2) termination is in the child’s best interest).
In light of that intervening change in the law, the court of appeals
granted Father’s motion for rehearing and issued a substituted opinion.
627 S.W.3d 662, 665 (Tex. App.—Waco 2019).
In its opinion on rehearing, the court of appeals again held that
legally sufficient evidence supported the Subsection (O) ground and the
jury’s best-interest finding. Id. at 671, 673. The court further held that
legally sufficient evidence supported termination under Subsections (D)
20
and (E). Id. at 672. Because the court of appeals concluded that the
evidence was sufficient to support all three predicate grounds submitted
to the jury, it did not address Father’s argument that the trial court’s
broad-form submission was reversible error. Id. at 673. We granted
Father’s petition for review.
II. Standard of Review
A parent’s fundamental right to the care, custody, and control of
his child is of constitutional magnitude. In re E.N.C., 384 S.W.3d 796,
802 (Tex. 2012). Accordingly, to terminate that right, the State must
meet a clear-and-convincing burden of proof at trial. In re A.B., 437
S.W.3d 498, 502 (Tex. 2014); TEX. FAM. CODE § 161.001(b); see also id.
§ 101.007 (defining “clear and convincing evidence” as “the measure or
degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be
established”).
This heightened burden of proof affects the standard of review in
an evidentiary challenge on appeal. To that end, in reviewing a legal-
sufficiency challenge, we must determine whether “a reasonable trier of
fact could have formed a firm belief or conviction that its finding was
true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Bearing in mind the
required appellate deference to the factfinder, we “look at all the
evidence in the light most favorable to the finding,” “assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so,” and “disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible.” Id.However, we may not disregard “undisputed facts that do not support
21
the finding.” Id. Under this standard, the factfinder remains “the sole
arbiter of the witnesses’ credibility and demeanor.” In re J.F.-G., 627
S.W.3d 304, 312 (Tex. 2021) (quoting In re J.O.A., 283 S.W.3d 336, 346
(Tex. 2009)).
III. Discussion
A court may terminate a parent’s right to his child if it finds by
clear and convincing evidence both that (1) the parent committed an act
prohibited under Texas Family Code Section 161.001(b)(1), and
(2) termination is in the child’s best interest. TEX. FAM. CODE
§ 161.001(b); In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). The three
predicate grounds under Section 161.001(b)(1) at issue here are:
(D) [the parent has] knowingly placed or knowingly
allowed the child to remain in conditions or surroundings
which endanger the physical or emotional well-being of the
child;
(E) [the parent has] engaged in conduct or knowingly
placed the child with persons who engaged in conduct
which endangers the physical or emotional well-being of
the child; [and]
....
(O) [the parent has] failed to comply with the provisions of
a court order that specifically established the actions
necessary for the parent to obtain the return of the child
who has been in the permanent or temporary managing
conservatorship of the Department . . . for not less than
nine months as a result of the child’s removal from the
parent under Chapter 262 for the abuse or neglect of the
child[.]
TEX. FAM. CODE § 161.001(b)(1)(D), (E), (O). Father argues that the
evidence at trial was legally insufficient to support any of those
22
predicate grounds as well as legally insufficient to support the finding
that termination of his parental rights was in J.W.’s best interest.
A. Failure to Comply with Service Plan
We first address Father’s assertion that the evidence is legally
insufficient to support termination under Subsection (O), which applies
when a parent “failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to obtain the
return of the child who has been in the permanent or temporary
managing conservatorship of the Department . . . for not less than nine
months as a result of the child’s removal from the parent under
Chapter 262 for the abuse or neglect of the child.” Id. § 161.001(b)(1)(O).
Father does not dispute that J.W. has been in the temporary managing
conservatorship of the Department for not less than nine months as the
result of his removal under Chapter 262. Nor does Father assert that
the trial court’s order incorporating the family service plan did not
specifically establish the actions necessary for him to obtain J.W.’s
return. Rather, Father contends that the Department “relied on things
that were not actually part of his service plan to show noncompliance.”
As discussed, Father completed several of his service-plan
requirements, including establishing paternity, submitting to random
drug testing, signing releases of records, maintaining a steady income,
completing a parenting assessment, attending visits with J.W., and
attending counseling. But he did not, according to the Department,
“maintain a safe and stable home environment” or contact the
Department at least twice a month. On the record before us, we agree
with the Department that a reasonable juror could have formed a firm
23
belief or conviction that Father failed to maintain a safe and stable home
environment and thus failed to comply with the service plan. 8
Beginning with the condition of Father’s home, which the
Department visited shortly after J.W. was removed and again a few
months before trial, two caseworkers testified in detail that the home
was unsafe and unsuitable for a child. That testimony and the
accompanying photographic evidence are described above, and, again,
Father made no effort at trial to refute it. Instead, Father asserts that
the Department was well aware of Father’s plan to live elsewhere with
J.W.—rendering the condition of his home “irrelevant” 9—and gave him
no indication that it disapproved of his plan. Nor, Father asserts, did
any Department witnesses testify that they thought Father was
untruthful about his intentions. Father characterizes the evidence as
demonstrating that he had a concrete plan for raising J.W. in a stable
environment and that the Department secretly and subjectively
determined that the plan was insufficient. The Department responds
that the requirement to maintain a safe and stable home was not a
prospective one and that at the time of trial, the intended safe and stable
home “simply did not exist.” The Department further contends that the
jury was free to disbelieve Father’s testimony that he intended to move
out of the home in which he had resided for forty years or “to infer that
8 We need not address the parties’ dispute about whether Father
maintained insufficient contact with the Department.
9 JUSTICE BLACKLOCK’s dissent concludes that Father did not waive the
argument that his residence was in fact safe and stable. Post at 9 n.3
(Blacklock, J., dissenting). Regardless, the evidence supports the jury’s
contrary conclusion.
24
his behavior of creating a hazardous home would move with him” to his
next home.
The record reveals that the jury was presented with ample
evidence undermining the stability of Father’s plans for raising J.W.,
including where Father intended to live, his ability to independently
parent J.W., and the nature of his continuing relationship with Mother,
whose parental rights the jury also found should be terminated. For
example, Father testified that he and Mother never intended to raise
J.W. in the home that the Department considered to be unsafe for a child
and that they had always planned to move in with Taylor after he was
born. But the testimony of both the caseworkers and Taylor suggests
otherwise. Taylor testified that discussions about moving in with her
began after J.W.’s removal, and conflicting evidence was presented as to
whether Taylor withdrew from consideration as a placement earlier in
the proceedings. Although she testified at trial that she was willing to
allow Father and J.W. to move in with her, and Father testified that this
was the plan, the Department still had not been permitted to inspect her
apartment. At the time of trial, Father remained in the same home in
which he had lived for forty years and had provided no indication that
he could maintain any future residence in a manner safe for a child.
Even the car in which he presumably intended to transport J.W. had a
broken back windshield and too much trash inside to allow for a car seat.
Father’s intentions regarding Mother’s continued involvement in
raising J.W. also remained murky at best at the time of trial, which was
particularly concerning in light of Father’s own statements of
uncertainty regarding his ability to independently parent J.W. Mother
25
and Father filed for divorce the week before trial and, according to one
caseworker, Father reported that he had told Mother they needed to
“wait until after this case was done” to consider having more children.
Based on her observations, the caseworker testified that she “believe[d]
a reasonable person would see that they’re still in a relationship.”
The Department also presented evidence that Father continued
to downplay Mother’s dependency issues and their impact on J.W. This
included Father’s participation in the incident at All About Recovery in
which he attempted to assist Mother in faking a drug test during the
pendency of the termination proceedings. Father’s counselor testified
that Father essentially believed whatever Mother told him, while
Mother’s psychological evaluation indicated she underestimates the
scope and intensity of her problems. Smith also testified that Mother
and Father were in a “very controlling relationship,” as evidenced by
Mother’s refusal to allow him to speak to the caseworkers when they
visited J.W. Mother and Father pointed to their impending divorce as
evidence that Father wanted a fresh start with J.W. But other evidence
described above indicated a lack of candor with the Department and the
court: that they did not intend to separate, they were still in a
relationship, and the divorce was “in name only.”
Father’s continued association with Mother was not inherently
problematic so long as there was evidence indicating Father could
ensure J.W.’s safety. But Father presented the divorce to the jury for
just that purpose: to address the perception of his inability “to tell her
no” given the Department’s concern “about the people she would bring
around, the people he wouldn’t be able to protect not only himself from
26
but also his child.” Thus, if the jury believed the divorce was not
genuine, then it both called Father’s overall credibility into question and
demonstrated that the divorce could not serve its purported purpose. 10
Nor were the Department’s underlying concerns unjustified.
Smith described a string of incidents ranging from a year before J.W.
was born to the summer before the termination trial. The first incident
occurred in April 2016 and involved a man named Mario Garcia, the
same man Mother had once named as J.W.’s father on an application for
government assistance and, according to Father, “a ten time felon.”
Father was forced to call law enforcement when Garcia would not leave
his and Mother’s home. About a week later, Mother texted Father that
she was at a Walmart with Garcia and wanted Father to pick her up.
When Father arrived, Mother would not leave with him, and law
enforcement was called. Garcia told the police (falsely) that Father had
been abusing Mother, and she said nothing; this led to Father’s being
arrested and spending the night in jail, as well as entry of a protective
10 To be clear, we certainly do not hold that Father was required to
divorce Mother in order to comply with the service plan, nor do we take the
Department’s position to be that Father could only maintain a safe and stable
home environment for J.W. by getting a divorce. Rather, as noted, Father and
Mother presented their pending divorce to both the Department and the jury
as evidence that Father was willing and able to put J.W.’s needs above
Mother’s, and neither the Department nor the jury was persuaded. If Father
was misrepresenting his intentions and the divorce was illusory, then other
evidence was necessary to demonstrate Father’s ability to protect the child. In
other words, regardless of whether Father and Mother intended to live
together after the conclusion of this litigation, Father was required to provide
a safe and stable home for J.W., and the jury found that he did not. Had the
jury been persuaded that Father would take adequate steps to ensure J.W.’s
safety even if he and Mother continued to live together, the outcome may well
have been different.
27
order that required him to leave the house for a brief period. Mother
subsequently told the police she did not want to file charges, and the
case was dismissed. A few months later, in August 2016, Father called
law enforcement again when he discovered Mother had allowed Garcia
back into their home and he “had a knife open.” That incident was
followed in March 2017—when Mother was eight months pregnant—by
the above-described episode involving Mother’s friend who had recently
been released from jail and overdosed while staying in Mother and
Father’s home. And in the summer of 2018, after he and Mother had
expressed their intent to get a divorce, Father again allowed a recently
jailed friend of Mother’s to stay in his home.
Father dismisses those events as “isolated incidents” that
occurred “long before J.W. was born.” We agree that Father’s conduct
before J.W. was born cannot demonstrate failure to comply with a
service plan generated after he was born. However, those incidents—
including the most recent that occurred the summer before trial—
provide context for a pattern that continued throughout the termination
proceedings. We cannot reject as unreasonable the Department’s
observation that those events, along with other evidence, are consistent
with the opinion that:
[Father] shows a pattern of behavior of denial about the
extent and the issues that [Mother] has even with his
knowledge of her addiction issues with her mental health
issues, the fact that she refuses to get help, the fact that
there’s a criminal element that’s around who’s involved
with drugs, the fact that he can’t seem to protect himself
much less a child from the pattern of behaviors that she
brings and he’s not willing to address those.
28
The jury was thus presented with evidence supporting the
Department’s conclusion that Father had not maintained a safe and
stable home environment, did not have a concrete plan for providing one
for J.W., and had not taken practical steps to bring any such plan to
fruition. Giving appropriate deference to the jury’s resolution of
conflicts in the evidence, including witness credibility, we hold that the
jury reasonably could have formed a firm belief or conviction that Father
failed to maintain a safe and stable home environment, as his service
plan required, and thus “failed to comply with the provisions of a court
order that specifically established the actions necessary for the parent
to obtain the return of the child who has been in the permanent or
temporary managing conservatorship of the Department . . . for not less
than nine months as a result of the child’s removal from the parent
under Chapter 262 for the abuse or neglect of the child.” TEX. FAM. CODE
§ 161.001(b)(1)(O).
JUSTICE BLACKLOCK’s dissent accuses both the Department and
this Court of relying on suspicion about Father’s future actions and
intentions rather than the actions he actually took with respect to
maintaining a safe and stable home environment. Post at 4–6
(Blacklock, J., dissenting). In the dissent’s view, the crux of the dispute
is the availability of Taylor’s clean and safe home, and the evidence
points to no other possible conclusion than that Taylor’s home was safe
and available and that Father had maintained a consistent, concrete
plan to utilize that home and then “explore moving to Fort Worth” with
J.W. Id. at 10. We disagree on several fronts.
29
First, while the elevated burden of proof was certainly on the
Department, the responsibility to weigh evidence, draw inferences, and
evaluate witness credibility was on the jury. No one argues, and we do
not hold, that the evidence conclusively establishes Father’s failure to
maintain a safe and stable home environment during the pendency of
the proceedings, as the service plan required. The jury could have
chosen, as the dissent does, to credit Father’s and Taylor’s testimony on
the subject and to draw inferences in Father’s favor. But the jury was
not required to do so, particularly in the face of evidence that reasonably
led it to discount that testimony.
To that end, the dissent argues that inconsistencies regarding
whether Father ever intended to raise J.W. in his home, whether Taylor
ever withdrew as a possible placement, whether the Department has
inspected Taylor’s home, and the current condition of Father’s residence
and vehicle have no bearing on whether Taylor’s home is “presently
available.” Id. at 10–14. But these inconsistencies raise significant
credibility issues—as to both Father and Taylor—regarding whether
Father had an actual plan that he had taken actual steps to implement.
Indeed, if nothing else, as JUSTICE BOYD’s dissent notes, the evidence
that Father attempted to help Mother fake the results of a drug test (and
his denial of the event) could reasonably have led the jury to doubt
Father’s entire testimony. Post at 5 (Boyd, J., dissenting); see In re
J.F.-G., 627 S.W.3d at 312 (holding that the factfinder remains “the sole
arbiter of the witnesses’ credibility and demeanor”). Moreover, Father’s
specific testimony about his living situation was contradicted by, among
other things, Department witness Kelly Allen’s testimony that over the
30
course of the proceedings, Father had given “numerous possible
locations where he and [J.W.] will live, but has never made any steps to
prepare these homes to live there.” She continued that Father indicated
on the Friday before trial that “he would be living possibly with [Taylor]”
and that when the Department “asked to see the home he said the room
still wasn’t ready.” Of course, “unready” does not necessarily equate to
“unsafe,” post at 12–13 (Blacklock, J., dissenting), but it is entirely
consistent with the Department’s view about the stability of the home
Father planned to provide J.W.
The service plan required Father to “maintain,” in the present, a
“safe and stable home environment.” While JUSTICE BLACKLOCK’s
dissent opines that we must impermissibly speculate about Father’s
intent in order to conclude that he failed to do so, it is the dissent who
ignores the evidence of Father’s conduct throughout the proceedings (or
at least, chooses to believe Father’s account rather than the
Department’s) and instead speculates that Father will be able to provide
a safe and stable home environment for J.W. in the future. On the
record presented, drawing all credibility determinations and reasonable
inferences in favor of the jury’s verdict, rather than against it, the jury
reasonably could have concluded by clear and convincing evidence that
the only “home environment” Father had ever maintained was a
residence that was unsafe for a child.
The dissent also discounts the evidence regarding Father’s
actions with respect to Mother as irrelevant to the requirement that he
maintain a safe and stable home environment. Again, the dissent
accuses us of speculating that Father will not provide a safe home
31
environment in the future, but it is the dissent who engages in
speculation. The jury heard evidence that Mother’s own conduct
contributed to making Father’s home unsafe, that Father minimized her
problems and could not “tell her no” (to the point that he helped her fake
a drug test and reportedly assented to having more children with her
after the “case was done”), and that Father was either unable or
unwilling to put J.W.’s needs above Mother’s. The dissent believes
Father’s testimony to the contrary; the jury did not. 11
B. Best Interest
Father next argues that he is entitled to rendition of judgment
because legally insufficient evidence supports the jury’s finding that
termination of his parental rights is in J.W.’s best interest. The best-
interest prong of the termination inquiry “is child-centered and focuses
on the child’s well-being, safety, and development.” In re A.C., 560
S.W.3d 624, 631 (Tex. 2018). We have identified several nonexclusive
factors that guide the inquiry, including: (1) the desires of the child;
(2) the child’s emotional and physical needs now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parenting abilities of the individuals seeking custody; (5) the
programs available to assist those individuals to promote the child’s best
11 The dissent’s reductionist statement that Father’s rights to his child
were terminated because “he cares too much for his wayward wife” and “does
not take out the trash” is certainly catchy, post at 26 (Blacklock, J., dissenting),
but it does not come close to encapsulating the evidence that was presented to
the jury over the course of the five-day trial. Courts may not overlook conduct
that subjects a child to serious risks merely by characterizing it as conduct that
supports a “wayward” spouse.
32
interest; (6) the plans for the child by those individuals or by the agency
seeking custody; (7) the stability of the home or proposed placement;
(8) the parent’s acts or omissions that may indicate the existing parent–
child relationship is improper; and (9) any excuse for the parent’s acts
or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The
jury charge listed these factors for the jury’s consideration in
determining J.W.’s best interest.
In holding the evidence was sufficient to support the best-interest
finding, the court of appeals noted that: J.W. has been with his foster
family since he was released from the hospital; his physical and
emotional needs are being met by the family, who plan to adopt in the
event the parents’ rights are terminated; the foster parents have a
family support system; the jury heard evidence that Father is not able
to place J.W.’s needs above Mother’s and that he allows Mother to
control him; since getting involved with Mother, Father has allowed
persons to live in his home who abused drugs and was arrested after the
incident with Mother and Garcia; and evidence was presented indicating
that the divorce, which Father himself presented as a justification for
maintaining his parental rights, was “in name only.” 627 S.W.3d at 673.
Father notes the undisputed evidence that he has an upstanding
character, volunteers, helps people in need, is even-tempered and
patient, and has a solid support system of family and friends. As to the
Holley best-interest factors, Father summarily asserts that the only
factor now weighing in favor of termination is the length of time J.W.
has been with a foster family with whom he should never have been
placed. On a more general level, Father asserts that “‘[l]ack of
33
protectiveness’ has become a problematic mantra . . . to justify cutting
off children from their parents and village of family and caregivers in
favor of unrelated placements” and that the Department failed to meet
the stringent requirements necessary to justify placing a child in an
unrelated home rather than with parents or a kinship. See TEX. FAM.
CODE §§ 261.307, 262.1095, 262.114(d). Father continues that this
rejection of any possible kinship placement “based on unfounded fears
Mother may attempt to interject herself into his life at some point (while
ignoring that J.W. has a loving parent and is fortunate enough to have
a village of extended family and fictive kin that would support him), is
the antithesis of the child-centered focus of the best-interest inquiry.”
As an initial matter, we disagree with Father’s premise regarding
J.W.’s placement and note that Father did not seek relief from the trial
court’s temporary order following the initial adversary hearing, in which
the trial court found that J.W. should not be returned to his parents.
See id. § 262.201(g) (requiring the trial court, at the conclusion of a full
adversary hearing following a child’s emergency removal, to return the
child to the parent unless sufficient evidence shows, among other things,
that “there is a substantial risk of a continuing danger if the child is
returned home”); see also In re T.M., No. 14-20-00703-CV, 2021 WL
865363, at *4–5 (Tex. App.—Houston [14th Dist.] Mar. 9, 2021, orig.
proceeding) (granting mandamus relief from the trial court’s order
declining to return the child to the parents due to insufficient evidence
of the court’s findings under Section 262.201(g)). Moreover, Father
overstates the evidence that he claims demonstrates a vague and
34
unsupported “lack of protectiveness” justification for any placement
suggested by the parents.
As to Father himself, caseworker Gresset testified that when J.W.
was removed, Father informed the Department he did not think he could
independently parent J.W. at that time, and Gresset was concerned
about Father’s expressed lack of knowledge about Mother’s substance
abuse. As the investigation continued, the Department discovered
additional information, described above, regarding the condition of
Father’s home, the risks posed by Mother’s presence, and the status and
nature of Mother and Father’s relationship. Father faults the
Department for failing to explain why it did not consider or conduct a
home study on his family in Fort Worth, but he wholly disregards
Gresset’s testimony that the family members took themselves out of
consideration as placements for J.W. With respect to Mother’s sister,
the Department’s home study raised concerns about her ability to meet
a child’s needs, and a caseworker testified that she too withdrew her
name from consideration as a placement. Finally, the Salas family was
ruled out because of concerns about a romantic relationship between
Mother and a member of the Salas household. Moreover, Mrs. Salas
testified that Mother had been living with them for a little over a year
at the time of trial, and we cannot fault the Department for declining to
place J.W. with Mother.
Importantly, given the child-centered focus of the best-interest
inquiry, we may not discount or minimize the level of permanence J.W.
has achieved with his foster family, with whom he has lived since he was
a month old. We will not recount the above-described evidence in detail,
35
but the same evidence that supports termination of Father’s rights
under Subsection (O) also supports the best-interest finding. See In re
J.F.C., 96 S.W.3d at 275 (noting that “most of the evidence relevant to
the best interest of the children was also relevant to the grounds for
termination based on the parents’ conduct set forth in the charge”).
Considering the evidence in the light most favorable to the jury’s best-
interest finding, we agree with the court of appeals that the evidence is
legally sufficient to support that finding.
We certainly do not condone or make light of the potential,
highlighted by Father, for the Department to summarily dismiss all
kinship placement options in a “quest to punish a parent” rather than
serve the best interest of the child. Such behavior threatens to
unjustifiably invade a parent’s due process rights and would violate both
federal and state law. See 42 U.S.C. § 671(a)(19) (requiring states, as a
condition of eligibility for federal funding, to consider giving preference
to an adult relative over an unrelated caregiver when determining a
placement for a child, “provided that the relative caregiver meets all
relevant State child protection standards”), (29) (requiring the State to
notify certain relatives about the child’s removal and possible
participation in the child’s placement); TEX. FAM. CODE
§§ 261.307(a)(2)(A)(ii) (requiring the Department, if it determines
removal may be warranted, to provide the parent a proposed child-
placement resources form to identify potential relative or other
designated caregivers), 262.114(d) (requiring the Department to give
preference to the child’s relatives in making a placement decision).
36
However, we cannot conclude on the record before us that that is what
happened here.
C. Endangerment
Although legally sufficient evidence supports the Subsection (O)
ground and best interest, and only one predicate ground is necessary to
support a judgment for termination, In re A.V., 113 S.W.3d at 362, we
may not bypass Father’s evidentiary challenges to Subsections (D) and
(E), the so-called endangerment grounds. Those grounds bear special
significance because termination of a parent’s rights under either can
serve as a ground for termination of his rights to another child. TEX.
FAM. CODE § 161.001(b)(1)(M); see In re N.G., 577 S.W.3d at 237 (holding
that due process mandates appellate review of Subsection (D) and (E)
findings when the parent has preserved the issue regardless of whether
the termination judgment could be affirmed on another ground).
Further, Father argues that if legally insufficient evidence supports any
one termination ground, the case must be remanded for a new trial
because the trial court erroneously submitted a broad-form termination
question, to which Father objected, and we thus cannot determine from
the charge whether the jury terminated his rights on an invalid ground.
Accordingly, we next address the evidence of endangerment.
We have said that to “endanger” means “to expose to loss or
injury; to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). Although “‘endanger’ means more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family
environment,” it does not require that there be conduct “directed at the
child” or that “the child actually suffer[] injury.” Id. The court of appeals
37
held that the evidence was sufficient to support the endangerment
grounds because it showed that Mother used illegal substances while
pregnant with J.W., Father was aware of her dependency issues but
exhibited a pattern of denial and minimization of those issues, and
Father was unwilling to address the danger Mother posed. 627 S.W.3d
at 672.
We begin with Subsection (D), which focuses on the child’s
environment and may be utilized as a ground for termination when the
parent has “knowingly placed or knowingly allowed the child to remain
in conditions or surroundings which endanger the physical or emotional
well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(D); see In re
E.M., 494 S.W.3d 209, 221 (Tex. App.—Waco 2015, pet. denied) (noting
that Subsection (D) “permits termination if the petitioner proves
parental conduct caused a child to be placed or remain in an
endangering environment”). While we have had little occasion to
address Subsection (D), the courts of appeals have held that the relevant
time frame for evaluating this ground is before the child’s removal “since
conditions or surroundings cannot endanger a child unless that child is
exposed to them.” E.g., In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—
Texarkana 2013, pet. denied); see also In re R.S.-T., 522 S.W.3d 92, 109
(Tex. App.—San Antonio 2017, no pet.); In re J.A.J., 225 S.W.3d 621,
627 (Tex. App.—Houston [14th Dist.] 2006) (noting that under
Subsection (D), “it must be the environment itself that causes the child’s
physical or emotional well-being to be endangered”), rev’d in part on
other grounds, 243 S.W.3d 611 (Tex. 2007). As a general matter, we
38
agree with that reasoning. 12 The suitability of a child’s living conditions
and the conduct of parents or others in the home are relevant to a
Subsection (D) inquiry. In re R.S.-T., 522 S.W.3d at 108–09. Moreover,
evidence that a parent will knowingly expose the child to a dangerous
environment in the future, while relevant to a best-interest
determination, is not proof that the parent has knowingly exposed the
child to a dangerous environment in the past for Subsection (D)
purposes. In re J.R., 171 S.W.3d 558, 570 (Tex. App.—Houston [14th
Dist.] 2005, no pet.).
In this case, J.W. was hospitalized immediately after his birth,
and he was removed and placed with an unrelated foster family upon
his discharge from the hospital. Both Mother and Father have had only
supervised visits with him since his birth and have had no say in his
living conditions. Accordingly, to support the jury’s Subsection (D)
finding, the Department necessarily relies on Father’s role in J.W.’s
“environment” before he was born. Certainly, Mother’s use of controlled
substances while pregnant created a dangerous environment for J.W.,
but the extent to which Father bears responsibility for that environment
is a much more difficult question.
12 To the extent the courts of appeals hold that a parent could never
cause his child to be placed in an endangering environment after removal, we
disagree, as we cannot foreclose the possibility that Subsection (D) could apply
post-removal depending on the facts. But typically, a parent whose child has
been removed and who has only supervised visitation has no control over the
child’s environment, and the parent’s conduct during that time will thus be
unrelated to Subsection (D).
39
While we have not yet addressed this issue, several courts of
appeals have held that a parent’s knowledge of the other parent’s drug
use during pregnancy and corresponding failure to attempt to protect
the unborn child from the effects of that drug use can contribute to an
endangering environment and thus support an endangerment finding.
See, e.g., In re H.M.J., No. 06-18-00009-CV, 2018 WL 3028980, at *5
(Tex. App.—Texarkana June 19, 2018, no pet.) (affirming Subsection (E)
finding where the father was aware of the mother’s drug use during
pregnancy and the effects it could have on the child’s well-being, and
neither reported her to the Department or the police nor made an effort
to ensure that she received substance-abuse treatment); In re J.W.S.,
No. 06-14-00018-CV, 2014 WL 3013352, at *6 (Tex. App.—Texarkana
July 2, 2014, no pet.) (holding that the evidence was sufficient for the
trial court to find endangering conduct where the father knew of the
mother’s drug use during the pregnancy but did nothing to stop it). We
agree, as holding otherwise would effectively endorse a parent’s willful
ignorance of the significant risk that a pregnant mother’s drug use
poses, which we decline to do. But neither do we endorse attributing
any and all known dangers posed to a child during the mother’s
pregnancy to the other parent. As is often the case in parental-
termination proceedings, the inquiry is necessarily dependent on the
facts and circumstances. 13
13Of course, if a parent actively participates in creating or maintaining
a dangerous environment during the pregnancy, e.g., does drugs with the
pregnant mother, encourages her drug use, or supplies drugs, we see no reason
why such conduct would not qualify as endangerment under Subsection (D).
That is not the kind of conduct at issue here.
40
Indeed, Father does not disclaim all responsibility for J.W.’s well-
being during Mother’s pregnancy; rather, he posits that the above-
described cases imputing endangering conditions or conduct involving
drug use by one parent to the other “involve the opposite of this case, i.e.,
where the parent knows that another parent’s drug use might be
endangering but does nothing to help.” Here, Father asserts, he “did
everything he could to assist pregnant Mother in her quest [to] overcome
addiction.”
Whether or not Father did “everything he could,” he made what
can only be described as a concerted effort to help Mother address her
addiction under the circumstances. When Mother informed him of her
problem, he searched extensively for a facility that would accept
pregnant women, only for Mother to unexpectedly leave the facility
before completing the program. When she returned to Texas, Father
had already begun a work-related project in Houston, and she initially
joined him until his hours escalated considerably. After completing the
project, Father again searched for a facility for Mother and, when she
was accepted to the methadone clinic, drove her from College Station to
Houston every day for several weeks to receive treatment. On this
record, the jurors may have reasonably concluded that Father could
have better handled the difficult situation into which he was thrust by
Mother’s addiction, but they could not have reasonably concluded by
clear and convincing evidence that Father disregarded his parental
obligations to the degree that he knowingly “allowed” J.W. to be placed
or remain in a dangerous environment.
41
Unlike the evidence relating to Subsection (O), which hinged
largely on credibility determinations in the face of conflicting evidence,
the evidence relating to Subsection (D) was straightforward and
conclusively insufficient to justify termination on that ground. Because
legally insufficient evidence supports the jury’s finding that Father’s
rights should be terminated under Subsection (D), the trial court erred
in submitting that invalid ground to the jury. We thus turn to the effect
of that error on the termination judgment’s viability.
D. Broad-Form Submission
Father argues that in light of his objection to the submission of
all three predicate grounds in a broad-form jury question, 14 legally
insufficient evidence of any one ground requires reversal and remand
for a new trial. He cites Harris County v. Smith, in which we held that
the trial court erred by submitting a broad-form question on damages
that included an element without any evidentiary support. 96 S.W.3d
230, 231 (Tex. 2002). Our holding in Harris County followed Crown Life
Insurance Co. v. Casteel, in which we held that “[w]hen a single broad-
form liability question erroneously commingles valid and invalid
liability theories and the appellant’s objection is timely and specific, the
error is harmful when it cannot be determined whether the improperly
submitted theories formed the sole basis for the jury’s finding.” 22
S.W.3d 378, 389 (Tex. 2000). Applying Casteel, we held that the charge
14 Again, the jury was instructed that in order to terminate, it had to
find by clear and convincing evidence that “at least one” of the three statutory
grounds was satisfied and that termination was in J.W.’s best interest.
42
error in Harris County was harmful because, under the circumstances,
the appellate court was prevented “from determining ‘whether the jury
based its verdict on an improperly submitted invalid’ element of
damage.” 96 S.W.3d at 234 (quoting Casteel, 22 S.W.3d at 388).
Here, the broad-form charge erroneously, and over Father’s
objection, 15 commingled a valid termination ground supported by
sufficient evidence (Subsection (O)) with an invalid termination ground
supported by legally insufficient evidence (Subsection (D)). We
reaffirmed in Harris County that the right to a fair trial includes “a jury
properly instructed on the issues ‘authorized and supported by the law
governing the case.’” Id. (quoting Casteel, 22 S.W.3d at 389). In a case
involving termination of parental rights, the “‘death penalty’ of civil
cases,” the importance of safeguarding a parent’s right to a fair trial is
even more pronounced. In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014)
(Lehrmann, J., concurring).
Recent revisions to our jury-charge rules in the context of
parental-termination proceedings highlight these concerns. Generally,
our rules require submission of broad-form questions to the jury
“whenever feasible.” TEX. R. CIV. P. 277. Applying this rule, we held in
Texas Department of Human Services v. E.B. that a broad-form parental-
termination question, rather than separate questions for each statutory
termination ground, is permissible. 802 S.W.2d 647, 649 (Tex. 1990). In
2020, we amended Rule 277 to overrule E.B. and require the trial court,
15 We held in In re A.V. that even in a parental-termination case, an
objection in the trial court is required to preserve error based on broad-form
submission. 113 S.W.3d at 363.
43
in a parental-termination case, to “submit separate questions for each
parent and each child on (1) each individual statutory ground for
termination of the parent–child relationship and (2) whether
termination of the parent–child relationship is in the best interest of the
child.” TEX. R. CIV. P. 277. Under the amended rule, a broad-form
termination question is error regardless of the evidentiary support for a
particular ground.
The amended rule does not apply here because the case was tried
in 2018. However, it underscores the need to ensure that a parent’s
rights to his child are terminated only on a valid ground supported by
the evidence. Because we cannot determine here whether the jury based
its verdict on an improperly submitted termination ground, we must
reverse the court of appeals’ judgment and remand for a new trial. 16 As
noted, the judgment of termination is final as to Mother, so the sole focus
of the new trial on remand will be whether Father’s parental rights
should be terminated.
IV. Conclusion
We hold that legally sufficient evidence supports one of the
statutory grounds for termination (Subsection (O)) and the jury’s finding
that termination was in J.W.’s best interest. Accordingly, Father is not
entitled to rendition of judgment. However, we also hold that the
termination question was erroneously submitted to the jury in broad
16 We express no opinion on the sufficiency of the evidence to support
the Subsection (E) ground and leave it to the trial court to determine in the
first instance whether that ground should be resubmitted to the jury.
44
form, such that the jury could have terminated Father’s rights under an
invalid and unsupported ground (Subsection (D)). We reverse the court
of appeals’ judgment as to Father and remand the case to the trial court
for a new trial.
Debra H. Lehrmann
Justice
OPINION DELIVERED: May 27, 2022
45