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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JUSTICE BLACKLOCK, joined by JUSTICE DEVINE and JUSTICE
BUSBY, dissenting.
Each week, during the pendency of this case, Father drove to the
offices of the Department of Family and Protective Services to visit his
son. He took pictures with him, heard him learn to speak, watched him
play, and held him. Each week, Father had to leave the office without
his son. After years in litigation defending his natural and legal right
to raise his son, Father should finally be able to walk away with his son.
Because of Mother’s endangering actions, not Father’s, Father
has never had a chance to live together with his son as a family. If the
Department’s fear that Father will endanger the son he loves comes to
pass, the Department can get involved just like it does with other
parents who fail in their sacred responsibility for their children. But in
a trial focused on Mother’s misdeeds, the Department’s case against
Father amounted primarily to speculation that he might not provide a
safe home for his son in the future. That is not a predicate ground for
termination.
The case against Father includes no clear and convincing
evidence that he endangered his son or that he violated his service plan.
Only by mistakenly using the service plan as a basis to speculate about
future endangering conduct Father might some day commit can the
Court reach its conclusion that sufficient evidence supports the
subsection (O) finding. But Texas law requires more. Parents who have
already endangered their children are eligible for termination of their
rights under subsections (D) and (E). Parents whom the Department
fears will do so in the future are not—and we should not allow service
plans under subsection (O) to surreptitiously relax the endangerment
thresholds chosen by the Legislature in (D) and (E). The law—both
Texas statutory law and higher sources of authority with which we
should be loathe to interfere—entitles Father to be given a chance to
raise his son. He should not lose his son because of his wife’s failings.
And he should not lose his son due to untested speculation about
whether he can raise his son well. He deserves a chance to be the Father
he claims he wants to be, a chance he has never had.
The Court sends the case back down to be tried again. Ante at 2.
Although this is a victory of sorts for Father, in my view he is entitled
to more. We should reverse the judgments below and render judgment
for Father. I therefore respectfully dissent.
***
The Court holds that legally sufficient evidence supports
termination of Father’s rights under section 161.001(b)(1)(O) of the
2
Family Code. Ante at 29. I cannot agree that the record here comes
close to demonstrating the sort of violations of a court-ordered service
plan for which a father can lose his fundamental right to his child—or a
child lose his fundamental right to his father.
Start with the statute. Subsection (O) serves as a predicate for
termination of parental rights only when the parent “failed to comply
with the provisions of a court order that specifically established the
actions necessary for the parent to obtain the return of the child.” TEX.
FAM. CODE § 161.001(b)(1)(O) (emphases added). The court-ordered
service plan must be “specific” and must state “the actions and
responsibilities that are necessary for the child’s parents to take to
achieve the plan goal” as well as “the assistance to be provided to the
parents by the department . . . toward meeting that goal.” Id.
§ 263.102(a)(1), (7). In every case, the Department “must write the
service plan in a manner that is clear and understandable to the parent
in order to facilitate the parent’s ability to follow the requirements of
the service plan.” Id. § 263.102(d).
The words of subsection (O) matter. A parent must comply with
the provisions of the order, not the spirit of it or the Department’s1
understanding of a provision’s purpose. The order must establish the
actions the parent must take to get his child back. The service plan’s
requirements must therefore be achievable by the parent’s actions—not
1 At trial, the Department requested that it be referred to as “the
Department” or “CPS,” but not as “the State” or “the government.” The court
granted that request. I cannot imagine why calling the Department exactly
what it is—the government—could be objectionable. In any event, we need not
abide by that restriction. “The government” and “the Department” are used
interchangeably here.
3
by the parent’s mental state, or the Department’s assessment of the
parent’s mental state. Finally, the required actions must be stated
specifically. The specificity requirement reinforces that the Department
cannot impose requirements on the parent that are not explicitly stated
in the plan. The specificity requirement should also prevent the
Department and the courts from reading unstated caveats into the
explicitly stated elements of the plan.
At bottom, compliance with subsection (O) is about checking
boxes on a checklist. Whether a service plan has been complied with
should be objectively determinable from the actions taken by the parent.
It cannot turn on the subjective opinion of the Department about
whether the parent really meant it, or what the parent is likely to do in
the future. If the parent took the action required by the plan, that is
enough.
My dispute with the Court concerns its treatment of the
requirement in Father’s service plan that he “maintain a safe and stable
home environment.”2 The Court’s principal error is using subsection (O)
to smuggle in the Department’s concern that Father would not, in the
future, be sufficiently “protective” of his child. For the Court, this
suspicion about Father’s future actions and intentions means that
2 The service plan became effective when entered by court order on July
12, 2017. A second service plan was filed on August 3, 2017. Father was
required under the service plan to submit to random drug testing, establish
paternity, maintain a steady income, sign releases of records, attend
supervised visits, undergo a parenting assessment, and maintain a crime-free
lifestyle. There is no dispute that Father fulfilled every single one of these
requirements. The Department waived various other requirements that it
found were unnecessary.
4
Father did not “maintain a safe and stable home environment” for his
son. Ante at 29. This approach to the service plan converts what should
be an objectively verifiable box-checking exercise into a completely
subjective, open-ended, forward-looking invitation to speculate about all
the ways in which Father might not make good on his earnestly stated
intention to take good care of the child he loves. But the question is not
“Will the child’s life be safe and stable if Father has custody?” The
question is, as I understand it, “Does Father have a reasonably safe and
stable physical location where he can live with the child?”
In assessing compliance with this service-plan provision, the
Court’s focus should be on the physical suitability of the place Father
designated as the child’s home. Otherwise, subsection (O) swallows the
other termination grounds involving endangerment of children.
Subsections (D) and (E) are specifically focused on parental conduct or
decisions that endanger children—just the kind of thing the Department
suspects Father will do in the future, which it fears will create an unsafe
and unstable home environment (all because of predictions about
Mother’s future misbehavior, not Father’s). Both (D) and (E) are
explicitly backward looking. Broadly speaking, they require a showing
that, in the past, the parent “engaged in conduct” that endangered the
child or “knowingly placed” the child with someone who did. TEX. FAM.
CODE § 161.001(b)(1)(D), (E). Fear that a parent will do those things in
the future is not enough to satisfy (D) or (E). See In re J.R., 171 S.W.3d
558, 570 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“The
unambiguous language of subsection [161.001(b)(1)(D)] requires proof of
Crystal’s knowing exposure of the children to an endangering
5
environment in the past. Any alleged likelihood that Crystal will
knowingly expose the children to a dangerous environment in the future
is not sufficient to prove a violation of subsection [161.001(b)(1)(D)].”);
In re R.S.-T., 522 S.W.3d 92, 109 (Tex. App.—San Antonio 2017, no pet.)
(“The relevant period for review of conduct and environment supporting
termination under statutory ground D is before the Department
removes the child.”); see also In re J.F.-G., 627 S.W.3d 304, 323 n.4 (Tex.
2021) (Blacklock, J., dissenting) (“Subsection (E) is explicitly
backward-looking . . . . A parent’s future plan to place his children with
people the court deems dangerous is not a violation of subsection (E).”).
But the Court relies on exactly that—the fear of the Department’s
witnesses about how Father will take care of his son in the future—to
find that Father violated his service plan by failing to “maintain a safe
and stable home environment.” Ante at 24–25. A service plan that
essentially rewrites other statutory termination grounds in a way that
is less protective of a parent’s rights surely cannot be enforceable. In
any event, when there are two ways of understanding a service-plan
requirement—one that amounts to an objective box-checking exercise
and another that authorizes the factfinder to engage in forward-looking
speculation about a parent’s future behavior that would not be allowed
by subsections (D) and (E)—surely courts must apply the former.
The burden of proof is important as well. The Department bears
the burden of proof in establishing the predicate grounds for
termination. See In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). That
burden does not shift to the parent simply because the Department puts
an affirmative requirement in a service plan. Rather than require
6
parents to prove compliance, the law requires the Department to prove
non-compliance. In other words, parental rights can only be terminated
under subsection (O) when the Department carries its burden of proof
in showing that a parent failed to take the actions required specifically
by the provisions stated in a court-ordered service plan. Speculation
about whether a parent will continue, after trial, to take the action
required by the service plan should be irrelevant. Father’s obligation
was to have followed the service plan as of the time of trial—not to
convince the Department that he intended to follow it forever.
The standard of review likewise matters. “[W]hether a parent has
done enough under the family-service plan to defeat termination under
subpart (O) is ordinarily a fact question.” In re S.M.R., 434 S.W.3d 576,
584 (Tex. 2014). But because “parent and child share a ‘commanding’
and ‘fundamental’ interest preventing an erroneous termination of their
relationship,” we require clear and convincing evidence to establish the
statutory predicates. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018)
(quoting Santosky v. Kramer, 445 U.S. 745, 758–59 (1982)). Thus, a
court cannot “involuntarily sever that relationship absent evidence
sufficient to ‘produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.’”
Id. (quoting TEX. FAM. CODE § 101.007). And “[a] correspondingly
searching standard of appellate review is an essential procedural
adjunct.” Id. We “honor . . . the elevated burden of proof” by raising the
legal-sufficiency standard above its ordinarily deferential posture. Id.;
see also In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (“As a matter of logic, a
finding that must be based on clear and convincing evidence cannot be
7
viewed on appeal the same as one that may be sustained on a mere
preponderance.”).
We have often cautioned that when conducting such review,
courts should disregard evidence that “a reasonable factfinder could
have disbelieved or found incredible” but not “all evidence that does not
support the finding” because “[d]isregarding undisputed facts that do
not support the finding could skew the analysis of whether there is clear
and convincing evidence.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
As we have always insisted, “conjecture is not enough.” In re E.N.C.,
384 S.W.3d 796, 810 (Tex. 2012). Thus, the standard for disregarding
evidence depends on whether a reasonable factfinder faced with
competing accounts substantiated by pieces of evidence at crossways
from one another could have reasonably chosen to believe the version of
events that supports the finding.
***
With these standards in mind, turn to the evidence. The Court
holds that the Department put before the jury legally sufficient evidence
to show Father failed to satisfy the service plan’s requirement that he
“maintain a safe and stable home environment.” Ante at 29. The Court
first decides that sufficient evidence existed for the jury to conclude that
Father did not actually have a separate, presently available home for
his son. Ante at 25. The Court further concludes that sufficient evidence
supported the conclusion that any such home would be unsafe, primarily
because Father has not demonstrated sufficient willingness to keep
Mother away from the child. Ante at 26–28. I disagree on both counts.
8
Begin with the allegation that no safe, stable home was truly
maintained by Father. To be sure, there is evidence that Father’s
primary residence was potentially an unsafe or unstable home
environment.3 His house was very dirty when caseworkers visited it on
May 31, 2017 (about a month and a half before the service plan was first
put in place). But since the service plan was put in place, Father has
consistently maintained that he has access to a separate, clean, and safe
home belonging to his sister-in-law, Nicole Taylor, to which he could
take the child if he were given custody. The availability of that separate
home—not the present state of his primary residence—should be the
crux of this dispute.
For the proposition that the separate home was not presently
available, the Court points to four different pieces of evidence. First,
Father at one point claimed that he and Mother always intended to move
in with Taylor to raise their son, but other testimony indicated that the
plan to live with Taylor did not arise until after the Department
removed the child. Second, there was evidence that Taylor had
withdrawn from consideration as a placement home for the child earlier
in the process. Third, the Department had not had a chance to inspect
3 The Court notes that Father did not refute the evidence regarding the
cluttered state of his home and that Father stated it was “irrelevant” because
he had an alternative home available. Ante at 24. I would not construe this as
a waiver of the argument that Father’s primary residence was safe and stable.
If the evidence put on by the Department was inadequate to show it was
unsafe, then Father need not have put on additional evidence or refute that of
the Department to show its safety and stability. Because I would hold that the
service plan was satisfied by a safe, stable, and presently available alternative
home, I do not assess the legal sufficiency of the evidence regarding Father’s
“cluttered” primary residence.
9
her home to determine its suitability. Fourth, Father has lived in his
present home for forty years and has maintained it very poorly, and his
car is likewise too full of trash to safely transport a child, so he has
“provided no indication that he could maintain any future residence in
a manner safe for a child.” Ante at 25.
None of that evidence comes close to demonstrating that Taylor’s
home was unsafe, unstable, or unavailable. To start, why should it
matter if Father did not always intend to take the child to another home,
even before removal proceedings began? He was under no legal
obligation to maintain a home environment that lived up to the
Department’s standards until the service plan was put in place. Once
that obligation arose, he secured permission from Taylor to move into
her home. And he also made future plans to sell his current residence
in order to move to Fort Worth, where his family lives.
Nonetheless, the Department argues that the jury could have
simply disbelieved Father’s stated intent to move in with Taylor. The
Department seems sure that Father’s plans were baffling and
unstable—a constantly shuffling array of infirm options. But his plan
was straightforward and consistent: Once removal happened and the
service plan was implemented, Father could no longer take the child to
his primary residence, so he wanted to move in with Taylor, at least for
a time, and then explore moving to Fort Worth in the future, which
would bring him closer to his family and support systems. The
Department points to no evidence that this sequence ever changed or
that Father ever faltered in his intent. While the second step of moving
to Fort Worth, like all future plans, has some level of uncertainty and
10
contingency, Taylor’s home satisfies the service-plan requirement by
itself. Surely the requirement to maintain a safe and stable home does
not preclude having future plans to relocate to an even better one.
Next, why should it matter if Taylor withdrew from consideration
as a placement home? There is a big difference between (1) taking
custody—legal responsibility—of a child who has been removed from his
parents, and (2) allowing the child and his father to live in one’s home.
Taylor may have had various reasons, including her own health, to
prefer opening her home rather than taking custody of the child. She
denied ever having withdrawn from consideration as a placement. But
in any case, her uncontroverted testimony was that she had always been
and still remained ready to allow Father and the child to live with her.
No reasonable juror could infer from Taylor’s alleged withdrawal as a
custody placement that her willingness to host a reunited Father and
son in her home was a bald-faced lie. When it became possible that the
child could both stay with his Father and live in her home, Taylor
evidently preferred that pathway. The Department presented no
evidence to call that into question.
The Court further notes that the Department had not had the
chance to inspect Taylor’s home. Ante at 25. But that is not evidence
the home is unsafe, unstable, or unavailable. It is a lack of evidence,
and the Department bore the burden of proof. The Department has not
argued anywhere in the briefing here that Taylor’s home was unsafe,
and witness testimony to that effect below was conclusory. To the
contrary, the Department’s witnesses complained only that there was
some clutter to be cleared out before a child could be placed there, but it
11
found no unsafe or unsanitary conditions that would fail under the
service plan.4
True, the Department wanted to inspect Taylor’s home back at
the very beginning of the investigation when Taylor was being
considered as a potential foster parent. And when a home study was
conducted, the Department had concerns about the readiness of the
home at that time due to “clutter.” But the Department has not shown
that it pressed for an inspection of Taylor’s home during the many
months after Father suggested it in satisfaction of the service-plan
requirement—that is, until the Department called Father the Friday
before trial. The Department did not reach Taylor to discuss the matter.
It merely speculated that the home was unsafe because it was not
entirely ready.5 But as any parent who has waited, for instance, to
assemble a crib knows, there is a large gulf between an unsafe home and
an unready home. Proof of the latter is not proof of the former. The
talismanic invocation of the word “clutter” in the Department’s
4 In fact, when counsel for Father represented at argument that CPS
had approved Taylor’s home for the child to live in, counsel for the Department
did not contest that assertion, even when expressly asked if the Department
disagreed. Counsel for the Department then said he may need to “step back”
and said he was “not sure.” He never followed up with the Court about the
matter.
5 The caseworker spoke with Father, not Taylor. According to the
caseworker, Father said that Taylor might not be answering because she was
not finished preparing the home yet. But the caseworker also recounted in
that same conversation that Father had been at Taylor’s home cleaning it up,
and that he thought it would be ready within the next week. Thus, while there
is some possibility that the home was not move-in ready, that does not mean
that it was unsafe. And the caseworker’s testimony undermines the Court’s
assertion that Father “had not taken practical steps to bring any such plan to
fruition.” Ante at 29.
12
testimony and briefing does not change that fact.6 While a parent may
not simply refuse a home inspection and thereby defeat termination, the
Department’s last-minute request falls well short of providing clear and
convincing evidence the home was either unavailable or unsafe.7
Finally, why should it matter that Father has lived in an untidy
home or that his vehicle has trash in it? The service plan’s requirement
was a presently available, safe, stable home, not a record of good
behavior for cleanliness that proves one’s capacity to keep house well.
The condition of Father’s home has nothing to do with the condition of
Taylor’s home, which is the one Father proffered in satisfaction of his
service plan. And even if the condition of Father’s home mattered,
6 Some variant of the word “clutter” makes twenty-nine appearances in
the Department’s brief. This pales in comparison to the testimony at trial,
wherein it makes well over sixty appearances—the apotheosis of which is
captured in the exchange between counsel for Father and the Department’s
investigator about Father’s home:
Q: And you said that this home was different because it was -- the
clutter. You didn’t find any feces laying around?
A: That’s correct.
Q: You didn’t find any spots you thought might be urine?
A: That’s correct.
Q: You didn’t find cockroaches, ants, black beetles, none of that?
A: That’s correct.
Q: You didn’t find any drug paraphernalia laying around?
A: As I stated, it was different due to the amount of clutter.
Q: Okay. No knives or guns laying around?
A: As I stated, it was different due to the amount of clutter.
Q: Okay. So it was just the clutter?
A: Correct.
7 The trial began the following Monday, October 8, 2018. There was no
other testimony regarding an attempted inspection after Taylor’s purported
withdrawal from the placement process beyond the attempt on the Friday
before trial.
13
Father had lived in his home for forty years without children.8 His child
never lived in the home. We have no evidence at all of how Father would
maintain a home in which a child lived. He was never given a chance to
try. It cannot be the case that the difference between keeping and losing
a fundamental right turns on whether Father cleaned up a house he did
not intend his son to live in. Rather than spend his limited time in the
midst of overlapping personal crises cleaning up an old home that he
planned to leave behind, Father focused first on locating a safe home for
the child. Isn’t that what the Department wanted?9
In sum, unrebutted testimony established the availability of
Taylor’s home, the safety and fitness of which has never been seriously
called into question. Nevertheless, the Department’s consistent position
has been that Father’s future plans to move into another home, such as
8Of course, we have zero evidence as to how Father maintained his
home at any point during those forty years before the Department investigated
on May 31, 2017—after Father had spent twenty-six nights of the previous
month at the hospital with his child.
9 The Court also refers in passing to evidence of a deficiency in Father’s
“ability to independently parent” the child. Ante at 25–26. The only evidence
referenced to support Father’s lacking that ability was testimony that “during
the early parts of the investigation” Father said he “would like to have
somebody else there with him to help him care for his child.” Of course, that
is exactly how most parents feel. In context, Father said this in response to
the proposed plan by the Department that he care for the child without
Mother—who still had her parental rights at the time. Understandably,
Father expressed some hesitation about caring for the child without his wife,
the child’s mother. But he also sought help from the nurses during the child’s
hospitalization to learn about parenting and spent time taking care of the
child. And in the early months of the investigation he was avid about learning
from the Department as well. There was no evidence at any time later in the
case that Father would lack the ability to care for the child. Instead, Father’s
counselor, who was called to testify by the Department, stated that she thought
Father could be a good parent independently.
14
Taylor’s, cannot satisfy the requirement to maintain a safe and stable
home environment. As detailed above, however, the evidence
established that Father had this alternative home available to him, and
there was no requirement in the service plan that he presently reside in
the home he offers in satisfaction of its requirements—imposing such a
“present residence” requirement would impermissibly add words to the
service plan.
Likewise, imposing an “intent to reside” requirement would add
words to the service plan, converting a requirement that Father take the
action of maintaining a suitable home into a requirement that Father
possess the mental state of intending to live there (for how long?). The
former is provable or disprovable with objective facts. The latter is a
matter of opinion about another person’s intentions. And if juries are as
free to disregard a parent’s testimony as the Court suggests they are, no
parent can ever be confident he has sufficiently proven his intentions.
If this is how it works, and if the Department decides not to believe you,
then there is no action you can take to conclusively comply with your
service plan.10 Father’s service plan could have been written to require
him to “convince the Department that he intends to live in a safe and
stable home environment with his son.”11 It does not say that. It just
says Father must “maintain” such an environment. He did that, by
10Even if Father’s intentions mattered, testimony from the Department
affirmatively showed that Father worked to prepare Taylor’s home for his son
and had plans to continue doing so in the coming week. And Taylor testified
that the child’s room had been cleared out and was presently ready.
11Such a provision would likely be unenforceable for various reasons,
but the point is that Father’s plan did not even try to impose such a provision.
15
arranging with his sister-in-law to live with her. She testified to her
willingness to take them in. There was no evidence her home was unsafe
or unstable. That checked the box. Case closed.
Again, the Department bore the burden of proof to show by clear
and convincing evidence that Father did not have a safe and stable home
environment lined up for his son. Taylor’s residence satisfied the service
plan’s requirement, and none of the Department’s evidence clearly and
convincingly undermined the availability, safety, or stability of her
home.
***
The Department places great emphasis on Father’s alleged lack
of “protectiveness,” despite that word’s absence from the service plan or
the relevant statutes.12 No one has made any argument that Father
himself engages in dangerous behaviors or would expose the child to
drugs or crime. Instead, the assertion is that the evidence demonstrates
his inability to say no to Mother, and she will make the home unsafe by
bringing drugs or criminals into it. Ante at 26–28. The Court agrees
with the Department that Father’s “lack of protectiveness”—that is, his
inability to guarantee that Mother would not reinsert herself into the
life of the child—undercuts his claim to be able to maintain a safe and
12“Protectiveness” is a bit of Department jargon that appears to
function as a catch-all justification for the Department’s reservations about
returning a child to his parents. The Court today notes its use by Department
witnesses but does not determine whether a conclusory assertion of “lack of
protectiveness” counts for anything at all. Ante at 33–35. I do not think it
should. The factual details of the parental deficiencies alleged—not the labels
used by the Department’s witnesses—is what should matter in a
sufficiency-of-the-evidence review.
16
stable home. The Court finds in various events “context for a pattern
that continued throughout the termination proceedings.” Ante at 28.
That pattern allegedly shows that Father cannot protect the child from
Mother’s dangerous behavior.
This entire line of thinking is a red herring. The focus here should
be on confirming compliance with a provision in a service plan, asking
whether a box was checked. Yet the Department uses the words “safe”
and “stable” in Father’s service plan as a way of smuggling in its
multifaceted concerns about Mother’s behavior and Father’s
relationship with her. Asking whether the child’s life will be safe and
stable in the future—instead of whether the child’s proposed living
quarters is suitable for children at the time of trial—converts the
subsection (O) inquiry into a free-wheeling best-interests analysis. In
this scenario, any speculation about things third parties might do in the
future to make the home unsafe or unstable is fair game. But that is
not how this works. The correct question is whether the child will have
a reasonably well-maintained place to live if he is returned to his parent.
Here, the answer to that question was plainly yes.
Reading this service plan the way the Department does raises
serious concerns about the plan’s validity. The Department’s approach,
which the Court seems to adopt, is that a safe, stable home presently
available to Father is not enough. For the Court, if the Department has
reason to believe that the home may not remain safe and stable in the
future, there is sufficient evidence to find non-compliance with the
service plan. But very few parents in troubled circumstances can
guarantee to the Department or a jury that potentially dangerous
17
influences will not re-enter their lives at some point. And the law does
not require it of them. If speculation that Father’s decisions in the future
will endanger his son is enough to establish a violation of his service
plan, then the Department has manufactured a new substantive
termination ground—future likelihood of endangerment. Never mind
that subsections (D) and (E) are explicitly backward looking—that the
Family Code is written to impose consequences on parents who have
endangered their children, not on parents whom the Department thinks
might do so if given the chance. Apparently, by means of a service plan,
the Department can require a parent who has not endangered his child
to assure a jury that bad influences will not make their way into the
child’s life in the future. That is not the law. The Department cannot
use service plans to expand the statutory grounds for termination in
areas—such as endangerment—where the statute already speaks quite
clearly.
Thus, none of what follows should have to be said. The Court’s
concern about Father’s relationship with Mother and her problematic
influence on the child should have nothing to do with Father’s service
plan, which does not mention Mother. Nevertheless, because the Court’s
analysis of the evidence about Mother and about Father’s relationship
with her falls short even on its own terms, I offer the following response.
The Court starts by noting that one caseworker believed Father
and Mother were still in a close relationship even after they filed for
divorce. Ante at 25–26. Father had even expressed his desire to help
Mother after the divorce. This is not shocking, since they were, well,
married. And it can hardly be the case that Mother was expected to
18
vanish upon divorce or upon her parental rights being terminated. Even
the current foster mother—whose adoption of the child the Department
supports—has said that she plans to allow Mother to keep in contact
with the child. But Father is faulted here because he might still love
Mother, might wish to see her on occasion, and might even hope to be
reconciled to her someday. It is bad enough that the Department
expects people to sever their bonds of marriage in order to prove their
“protectiveness.” It is inconceivable that it should demand spouses who
get divorced at its suggestion to also gin up enough distaste for one
another’s company to satisfy the level of theatricality they expect from
a “real” divorce.13
The Court then turns to incidents before the birth of the child
when Father twice called the police to remove an evidently dangerous
man from his wife’s presence. Ante at 27–28. For his troubles, Father
spent a night in jail after that man falsely accused him of domestic
13One key piece of evidence that the divorce was “in name only” appears
to be that a courtesy worker for the Department visited Mother’s apartment
and found Father there after they had initially announced their intent to
divorce several months before trial and before the couple filed for divorce.
Father appeared to have been sleeping on Mother’s couch that Friday
afternoon. This was at Mother’s apartment in Houston, where testimony
elsewhere established that Father had been visiting that summer. It is
relevant to note that the apartment was owned and lived in by the Salas
family, whom Father and Mother knew well, and that Ms. Salas testified that
she would invite him over to stay on the couch when he was in town.
The other key piece of evidence was that Father and Mother allegedly
discussed waiting until after the trial was over to discuss having more children.
But Father said that was a mischaracterization of his statement, which was
that one cause for the divorce was that Mother wanted more children. He
disclaimed any such intent, stating that he would not have children outside of
marriage, that he had moral objections to doing so, and that after the divorce
was final, he would not have children with Mother.
19
violence. It is hard to see how this illustrates Father’s inability to
maintain a safe home. Calling the police to protect his home and prevent
wrongdoing would seem to indicate the opposite.
Much of the Court’s analysis is then spent showing that Father
downplays Mother’s drug problems or fails to refuse her requests for
help. Father once allegedly attempted to help Mother fake a drug test.14
And he supposedly minimized her drug problems by disagreeing with
the State about their severity.15 But it is undisputed that Father went
14This took place after the birth of the child, when Mother was taking
drug tests as part of her service-plan requirements.
15 Importantly, the Department itself may have been misinformed about
the severity of Mother’s drug problems, as evidence shows some of its staff
believed the child had tested positive for methamphetamines—a street drug—
where he actually tested positive for amphetamines, a component of some
common, legal drugs. Moreover, the Department’s concern about Father
downplaying the impact of Mother’s drug use on the child, ante at 26, seems
undercut by the Department’s first witness, a pediatrician, who testified that
MRI screening for after-effects of the withdrawal the child suffered after birth
came back normal, with no observable effects upon the brain. The child
undoubtedly suffered from difficult withdrawal symptoms such as jitters and
poor weight gain, which, had Father not ensured that the child received
medical care, could have been life threatening. But Father’s testimony was
that he was told by the doctors that the symptoms were “moderate,” and the
pediatrician did not directly contradict that testimony, instead insisting that
it was “mostly subjective.” Father expressly disclaimed ever saying this was a
“slight issue” and instead stated that it was “serious.” And his past behavior
of extensively researching drug treatment options and going to great lengths
to ensure his wife received drug treatment would indicate that he took the drug
usage seriously. He testified that Mother was addicted to drugs during the
pregnancy and that he helped her attend rehab. When asked who was
responsible for the child undergoing withdrawal, he said it was “obviously
[Mother].” The witness who testified that Father seemed to be downplaying
the severity of the drug’s effects on the child was a Department caseworker,
not a physician. The notes from the counselor on which the caseworker relied
do not actually say that he downplayed her drug problem. At trial, the
20
to extreme lengths to ensure that Mother received drug treatment.
Downplaying a spouse’s drug problems while talking to a counselor (who
would testify for the government in ongoing proceedings against that
spouse) seems rather to be expected.16 And trying to shield one’s spouse
from the consequences of a positive drug test, is a far cry from allowing
drug use around a child. Even if Father did the former, any suggestion
he would do the latter was sheer speculation.
counselor said she believed Father was minimizing Mother’s drug problems,
but she did not elaborate.
16 Much could be said about the Department’s apparent process of
mandating counseling, choosing the counselor for the parent, requiring the
parent to sign releases of records from the counselor, and then having the
counselor testify against the parent at trial. The Department even prevailed
below on the argument that Father was not sufficiently “open” in these
“counseling sessions”—or were they depositions? The court of appeals relied
on the Department’s testimony that it “considered [the counseling]
requirement inconclusive or incomplete” because it determined that counseling
had been “unsuccessful,” even though Father literally complied with the terms
of the service plan by completing his required counseling sessions. 627 S.W.3d
662, 670 (Tex. App.—Waco 2019). The Department has abandoned that
argument here, and wisely so, as it would mean that parents are forced to be
forthcoming with a counselor to the Department’s satisfaction, even though
anything they say can and will be used against them. Parents too
unsophisticated to understand the legal process might freely tell the counselor
all kinds of things any lawyer would beg them not to say to a potentially hostile
witness. The more savvy parent may clam up, knowing their words can be
used against them. But that only causes the Department to call the counseling
“unsuccessful.” I would have thought that “successful” counseling is much
more likely if the parent can trust the counselor to maintain confidentiality.
If, however, the Department’s desire is to get another set of eyes and ears on
the parent in an atmosphere where the parent is more likely to let his guard
down, then its approach to “counseling” makes perfect sense.
21
Father also allowed friends of Mother on two occasions to stay in
the couple’s home after the friends had been released from jail.17 One
stayed in the home before the child was born and overdosed while
staying there. Another pair stayed for the summer after the child was
born and was no longer in the custody of the family.18 These acts of
hospitality seem to have involved no wrongdoing on the part of Father,
nor was there any evidence that any crimes were committed at his home,
but this testimony led the Department to leap to the conclusion that
Father could not protect a child from a “criminal element.” Again, the
evidence shows only that he opened his home to others—once at
Mother’s request while she was pregnant and once jointly with Mother
for two guests after the child had been removed. That is all. Such
hospitality was consistent with his character for assisting individuals
17 The evidence of two of the visitor’s alleged criminal status is murky
at best, coming as it did through second-hand testimony of the Department
about what Father said he thought might have been the case.
18 “Mike” stayed in the home in March 2017. He was a friend of Mother
who had known her for a long while and had been recently released from
prison. While at the home, late one afternoon, he passed out while standing
on the front lawn. Father took him to the emergency room. Testimony showed
that he likely overdosed on Dilaudid, but it is not clear if the drugs were legally
or illegally obtained. He survived.
The pair—identified as John and Lorenzo—stayed from June to August
in 2018. Father was evidently not present for much of this stay, as he was
away in Houston. And while Lorenzo was a friend of Mother whom Father did
not know well, John was identified as “his friend” whom he helped because he
had no place else to go. Father had known John for years and helped him
considerably in the past. So while the Department presented this as evidence
of his inability to “tell her no,” at least one of the three guests was there on
Father’s invitation.
22
who needed it. But it is hardly the den of thieves lurking in the recesses
of the Department’s imagination.
The Court is concerned with the statement of Father’s counselor
that Father trusted Mother and refused, at Mother’s request, to speak
with caseworkers. Ante at 26. That is to say, after the Department
made clear that its primary goal was not reunification of the family,19
Father and Mother no longer wanted to make small talk with the
Department. In short, he sided with his wife when they were in
adversarial proceedings against the government—and for this he may
lose his child.
But even if he trusted Mother to an excessive degree and allowed
her to manipulate him, that still falls short of proving that Father would
not make the home safe for the child. Not once has the Department
shown that Father placed Mother’s interests ahead of the interests of
the child. In not one of these examples does Father allow harm to come
to the child so that Mother can have her way. There is no proof that he
ranks the wellbeing of his child below hers. There is no evidence at all
of how Father balances his love for his child with his feelings for his wife,
because he has never had the chance. The Department’s fear that he will
19 The Department’s “primary” (or, “permanency”) goal was unrelated
adoption, but its “concurrent” goal was family reunification. Ante at 11 n.7.
This apparently means the Department pursued both goals simultaneously.
The service plan listed only the Department’s primary goal. It did not state
the concurrent goal. Whatever the merits of the officially required
terminology, it is reasonable to assume that parents unversed in bureaucratic
jargon could take the “primary goal” of unrelated adoption to mean that family
reunification was disfavored, if not entirely off the table.
23
strike that balance poorly is pure speculation, based entirely on episodes
not involving the child.
Calling the police on dangerous men, taking your wife’s side
against that of the government, and opening your home to friends of the
family. These are not the sort of things for which one expects
punishment in our legal system. But even accepting the Department’s
preferred spin on the above events, what does all that have to do with
satisfying the service plan’s requirement that Father have a safe and
stable home available? Father testified that he would abide by any
restrictions on Mother’s visiting the child. He said he would divorce her
to show he put his child first. Mother testified that she would stay away
from the child if need be and that she would never again put Father in
a position where he would have to contend for the right to raise their
child. No protective orders are in place. No legal restrictions on her
ability to visit the child with the consent of the child’s custodian are in
place. So how can it be that the bare possibility of her wielding influence
over Father to gain access to the child for unspecified malicious purposes
makes this home—really, any home—unsafe?
A supervisor for the Department stated its position bluntly:
“[T]he Department considers [Mother] to not be safe and appropriate.
Her presence in that household is enough for the Department to
determine that that is not a safe or appropriate home for the child.” In
short, it was not enough for Father to provide a safe and stable living
space. The Department wanted Mother gone. It deemed Father
incapable of cutting his child’s Mother out of the picture (one might have
thought this a virtue, not a vice). And so the Department’s position is
24
that no home Father and child live in will ever be safe—because of
Mother. The problem, therefore, is not that Father has not complied
with his service plan. Father cannot comply with his service plan, not
because he cannot take the action it requires (he has done so), but
because the Department has examined his character and found him
insufficiently “protective.” The Court blesses this approach, but in so
doing it strays far afield from the actual requirements of the service
plan, and it allows the Department to use the service plan to construct
a substantive, forward-looking, likelihood-of-future-endangerment
ground for termination.
At bottom, the Court takes aim at the wrong target. The actions
of Mother—not Father—litter the pages of the majority’s opinion. But
it is Father’s rights at stake, and he must be judged by his actions, not
hers. We cannot demand that a father and husband do more than he
has done to balance the needs of his child with the needs of his troubled
wife. Reading the Court’s opinion, one could walk away wondering how
far a man must go to distance, disclaim, and deny any attachment to or
affection for his wife in order to satisfy the Department’s subjective
determination of what qualifies as a stable home. Should he have
divorced her immediately? Should he have sworn to never speak to her
again? Should he have turned her into the police? How far, exactly, will
the Court allow the Department to go in forcing a choice between the
two most fundamental obligations in a man’s life?
The Department’s position would require that a parent be
completely forthcoming with the State about his spouse’s drug use while
her rights are still at stake in order to demonstrate a “protective”
25
capacity sufficient to satisfy the Department’s sense of what a “safe and
stable home” means. In other words, here’s your choice: throw your
spouse under the bus, or lose your child instead. Whatever the merits
of requiring spouses to protect their children from the dangerous and
erratic behavior of the other parent, this far is too far. And not a word
on Father’s obligation to dispossess his son’s mother is to be found
anywhere in the service plan.20
***
The reader can scour the Court’s opinion looking for the sin so
egregious that Father should be eligible to lose his rights to his child. I
cannot find it. The sins are all Mother’s. Father’s problem, we are told,
is that he cares too much for his wayward wife. And he does not take
out the trash. Neither is a predicate ground for termination of parental
20 If the words “safe and stable home environment” are broad enough to
encompass all that the Department insists they do, then that raises the
question whether they are not specific enough to be statutorily authorized—
and are consequently unlawful. TEX. FAM. CODE § 263.102(a)(1) (requiring
that terms in the service plan “be specific”).
26
rights.21 Because no predicate grounds were supported by clear and
convincing evidence, I would render judgment for Father.22
21 The Court does not reach the question of whether Father violated the
second service-plan requirement at issue here—the requirement to contact the
Department at least twice a month. Ante at 24 n.8. I would hold that Father
satisfied the requirement. Father attended almost all weekly visits, which
took place at the Department’s office. Id. at 11. This was contact. The
Department argues that his contact was not meaningful enough to satisfy the
requirement. But contact is contact. If the Department wants something
more, it can put the requirement in the service plan. Father was within his
rights to do only what the service plan specifically required of him. He was not
obligated to do it the way the Department wanted him to do it, unless the
service plan made that obligation clear.
22 I agree with the Court’s reversal of the judgment below on the
subsection (D) ground. Ante at 42. The Court does not reach the subsection
(E) endangerment ground, id. at 44 n.16, which requires clear and convincing
evidence that Father “engaged in conduct” that “endanger[ed]” the child. TEX.
FAM. CODE § 161.001(b)(1)(E). The only danger alleged to the child was from
Mother’s drug use in utero. I would hold that Father did not endanger his child
by failing to do everything the Department in hindsight imagines he should
have done to make his wife seek additional treatment for her drug problem.
The endangering “conduct” was all Mother’s. It is undisputed that Father
encouraged his wife to seek treatment, drove her to treatment, and spent a
considerable amount of time and effort helping her seek it early in the
pregnancy. She eventually rejected treatment, and Father could not force her
to seek more. Father’s inability to compel his erratic, addicted wife to undergo
medical treatment she did not want is not “conduct” by Father at all, much less
conduct that endangered his unborn child in any measurable way apart from
Mother’s endangering conduct. Only by side-stepping the words of the Family
Code and the service plan and collapsing everything into the Department’s
free-ranging allegation of “lack of protectiveness” can Father’s inability to
compel his wife’s medical treatment be used as the predicate for termination
of his parental rights.
27
I respectfully dissent.23
James D. Blacklock
Justice
OPINION DELIVERED: May 27, 2022
23 In Memoriam Holden Thomas Tanner (1995–2022).
That God, which ever lives and loves,
One God, one law, one element,
And one far-off divine event,
To which the whole creation moves.
ALFRED, LORD TENNYSON, IN MEMORIAM A.H.H. 131 (London, The Bankside
Press 1900).
28