IN THE INTEREST OF CHILD v. << (2026)

OPINION

The Texas Supreme Court recently reiterated that “[s]undering the ties between parent and child ‘can never be justified without the most solid and substantial reasons.’ ” In re J.Z.A., 738 S.W.3d 805, 808 (Tex. 2026) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)). In the underlying case, the jury unanimously found that the mother and the father of R.N.¹ endangered R.N. and that termination is in the child's best interest. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (b)(2) (West Supp. 2026). The jury also found that the Texas Department of Family and Protective Services (the Department) made reasonable efforts to return R.N. to the parents, and despite those reasonable efforts, a continuing danger remained in the home that prevented the return of the child to them. See id. § 161.001(f). The trial court thereafter signed an order terminating each parent's parental rights to R.N.

Mother and Father filed this accelerated appeal in which they collectively present five issues. In their first and third issues, Mother and Father assert that evidence of Father's juvenile sex offender status should have been excluded under Rule 403 of the Texas Rules of Evidence and that such evidence was improperly highlighted in the trial court's charge. In their second issue, Mother and Father challenge the legal and factual sufficiency of the evidence to support the jury's findings that: (1) each parent endangered R.N. pursuant to Section 161.001(b)(1)(D) and (E); (2) termination of each parent's parental rights is in R.N.'s best interest; and (3) the Department made reasonable efforts to return R.N. to the parents and, despite those reasonable efforts, a continuing danger existed in the parents' home that prevented the return of R.N. to them. See FAM. §§ 161.001(b)(1)(D), (E), (b)(2), (f). In their fourth issue, Mother and Father assert that the trial court's judgment does not survive strict scrutiny. In their fifth issue, Mother and Father contend that the trial court failed to properly incorporate Sections 153.002 and 161.001(f) in its charge. See FAM. §§ 153.002, 161.001(f).

For the reasons discussed below, we reverse and remand this cause to the trial court for a new trial.

I. Termination Findings and Standards

The Department must “clear[ ] a high bar” to justify terminating one's parental rights. In re K.N., 741 S.W.3d 165, 178 (Tex. 2026); see also In re H.S., 741 S.W.3d 4, 8–9 (Tex. 2026) (re-emphasizing that terminating parental rights “ ‘is always the last resort’ ․ permissible to protect children from serious harm ․ [and] may be exercised only in the absence of other legitimate options.” (quoting D.V. v. Tex. Dep't of Fam. & Protective Servs., 722 S.W.3d 854, 861 (Tex. 2025))).

To support termination under this heightened standard, the Department must present clear and convincing evidence that: (1) the parent has committed one of the acts listed in Section 161.001(b)(1); and (2) termination is in the best interest of the child. See FAM. § 161.001(b). However, and despite affirmative findings to the above, a trial court may not order termination under Section 161.001(b) unless it finds by clear and convincing evidence that the Department made reasonable efforts to return the child to the parent before the trial on the merits commences and that, despite those reasonable efforts, a continuing danger remains in the parent's home that prevents the child's return to the parent. Id. § 161.001(f). Clear and convincing evidence is “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.” Id. § 101.007 (West 2019). This standard “is unforgiving” and “the government may not sever the legal ties between parents and children without clearing [this] high bar.” K.N., 741 S.W.3d at 178.

In this case, the jury found that clear and convincing evidence established that: (1) Mother and Father knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child; (2) Mother and Father engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child, see FAM. § 161.001(b)(1)(D), (E); and (3) termination of each parent's parental rights is in the child's best interest. See id. § 161.001(b)(1)(D), (E), (b)(2). The jury additionally found that the Department engaged in reasonable efforts to return the child to the parents and, despite those reasonable efforts, a continuing danger remained in their home that prevented the return of the child to them. See id. § 161.001(f).

In reviewing a legal sufficiency challenge, we must decide whether “a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.W., 645 S.W.3d 726, 741 (Tex. 2022). Cognizant of our 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. (internal quotation marks omitted). “However, we may not disregard ‘undisputed facts that do not support the finding.’ ” Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). Because “the factfinder remains ‘the sole arbiter of the witnesses' credibility and demeanor’ ” under this standard, we may not substitute our judgment for that of the factfinder. Id. (quoting In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021)).

When we assess whether the evidence is factually sufficient to support the finding, we weigh the disputed evidence that is contrary to the finding against all evidence that favors it. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We give due deference to the finding, and determine whether, based on the entire record, a factfinder could have reasonably formed a firm belief or conviction about the truth of the allegations asserted against the parent. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002); In re L.C.C., 667 S.W.3d 510, 512 (Tex. App.—Eastland 2023, pet. denied).

II. General Background About the Case

R.N. was born on October 24, 2023, to Mother and Father (the parents), both of whom were very young at the time. R.N. was their first child.

R.N. was not gaining weight while in the parents' care and was diagnosed on November 29, 2023, by her pediatrician with “feeding problems.” By December 11, 2023, R.N. continued to struggle with gaining weight, was diagnosed with “failure to thrive,” and was hospitalized. During R.N.'s hospitalization (from December 11 to December 16), the parents were given instructions on how to feed her. R.N. was subsequently released and sent home with the parents under a safety plan that required them to document R.N.'s feedings and have twenty-four-hour supervision to ensure R.N. was receiving the correct feeding volume and frequency. R.N. gained some weight initially but was again hospitalized on January 3, 2024, because of her weight status. This hospitalization lasted seven days.

The parents sought a second opinion about her medical condition and testing from Cook Children's Medical Center (Cook's) when R.N.'s pediatrician refused the parents' requests for R.N. to see a specialist. The parents took the child to Cook's between the first and second hospitalizations. Cook's treated R.N. for acid reflux and released her.

During R.N.'s first hospitalization, the Department received an intake because of the child's failure to thrive. The Department and the parents agreed to a safety plan that required the parents to maintain feeding logs and be supervised while R.N. was in their possession. The parents did not maintain accurate feeding logs, they violated the supervision requirement, and they refused to feed R.N. as instructed by medical staff. After learning that the parents had violated the safety plan, the Department reviewed the safety plan requirements and offered services through Family Based Safety Services (FBSS).² See FAM. §§ 262.402–.410, 264.203. The parents agreed to participate in FBSS. The Department also discussed options with the parents for entering a parent child safety placement plan (PCSP) and sending photographs of the bottles that were used for feeding to create a digital feeding log. See FAM. Chapter 264, Subchapter L, “Parental Child Safety Placements.”

Within fifteen hours after R.N. was discharged from her second hospitalization, R.N. lost approximately an ounce in weight. The Department then obtained an order to remove the child and was appointed as the child's temporary managing conservator. The adversary hearing was held on January 25, 2024, at which time the parents agreed to the Department's requested relief, including temporary sole managing conservatorship. A comprehensive medical review was ordered at this hearing, but the order was silent as to whether the review included genetic testing. No genetic testing results existed at the time of the adversary hearing.

After removal, R.N. was originally placed with her maternal grandmother, Miranda Harrington, and she gained weight while in Harrington's care. After about three months with Harrington, the parents requested that R.N. be moved to Brownwood, which was closer to them, for visitation purposes. R.N. was then moved to Christopher and Joann Alva's home in Brownwood, but two or three days after the child arrived there, the parents moved to San Antonio.

A family plan of service was signed by the parents and adopted as an order of the trial court. Thereafter, the Department referred services for the family.

On October 3, 2024, Father filed an interlocutory appeal challenging the temporary orders that the trial court made following a de novo permanency hearing, which we dismissed for lack of jurisdiction. In re R.N., No. 11-24-00265-CV, 2025 WL 863773, at *1–2 (Tex. App.—Eastland Mar. 20, 2025, no pet.) (mem. op.).

On April 11, 2025, the parties executed a Rule 11 Agreement that contained a plan for the parents to transition into a monitored return. The transition plan was delayed because of an intake for the alleged sexual abuse of R.N. by Father, which the Department ultimately ruled out. On July 30, 2025, R.N. was placed on a monitored return with the parents in San Antonio.

At the beginning of the monitored return, the Department visited the parents' home and found it to be clean. During subsequent visits, however, the Department developed safety and cleanliness concerns for the parents' home. Because of conditions of the parents' home, the Department initiated an investigation into the alleged physical neglect of R.N. A week later, R.N. was removed from the monitored return, pursuant to a writ of attachment, and placed back in the Alvas' home in Brownwood, where she remained throughout the trial. The monitored return lasted seventy-two days. The parents thereafter filed a pro se petition for writ of mandamus, which we denied because of the existence of hybrid representation. In re N.N., No. 11-25-00314-CV, 2025 WL 3480723, at *1 (Tex. App.—Eastland Dec. 4, 2025, orig. proceeding) (mem. op.).

A jury trial was demanded on November 13, 2024, and an extension was granted on December 9, 2024, at Father's request. The Department articulated the extraordinary circumstances that existed at that time, including that the parents were not working services, following recommendations, nor showing behavioral changes. Other events that contributed to the necessity for the extension were a change in the judge who was assigned to preside over the case, the timing of Father's request for a jury trial, and the substitution of Mother's trial attorney because of a conflict that developed during the case.

The jury trial commenced on March 23, 2026, and concluded on March 27, 2026. At the time of trial, R.N. was approximately two years and five months old. Fourteen witnesses testified during the trial, including three Department investigators (Jeremiah Wenzel, Chrisstena Nelson, and Johnny Longoria), the most recent 2INgage caseworker (Amanda Poole), a San Antonio courtesy worker from the Department (Faith Parchem), both parents, one of Father's prior attorney's (Emily Miller), R.N.'s maternal grandmother (Miranda Harrington), R.N.'s maternal aunt (Trinity Tilley), R.N.'s primary pediatrician (Dr. Scott Morris), R.N.'s pediatric geneticist (Dr. Claudia Soler-Alfonso), a child abuse pediatrician (Dr. Marcus DeGraw), and R.N.'s current placement (Joann Alva). A portion of the transcript from a de novo permanency hearing held on September 30, 2024, which contained testimony of both parents and another Department caseworker, Diane Hackney, was also read to the jury.

III. The Evidence Presented at Trial

Because an abundance of evidence, witness testimony, and documentary evidence was presented during the trial of this case, and because of our disposition of this appeal, we believe it is necessary to discuss in detail the evidence that is pertinent to the issues we address below.

A. Jeremiah Wenzel

Jeremiah Wenzel was the Department investigator who was assigned during R.N.'s first hospitalization to investigate the allegation of R.N.'s failure to thrive. This intake did not include concerns about the parents' home. On December 13, Jamie Rickafort, a nurse, told Wenzel that the parents were focused during their conversations with R.N.'s treating physician (Dr. Hull) but did not appear to be comprehending the information provided to them by the medical staff. Brandi Pemberton, a social worker at Hendrick Hospital in Brownwood, also reported that day to Wenzel that the parents were not understanding the necessary parenting skills. During R.N.'s hospitalization, there was continued concern for the parents co-sleeping despite being provided with co-sleeping written material and verbal instructions on multiple occasions. On December 26 and 27, 2023, Wenzel was told by Dr. Hull that he had no concerns about R.N. not gaining weight.

On January 3, 2024, Wenzel arrived at the parents' home around 9:30 a.m. and observed the parents in possession of R.N. without a safety monitor. The parents reported that one safety monitor, Howard Johnson, left for work between 6:00 a.m. and 7:00 a.m. and the other monitor, Jacob Johnson, was asleep. The parents had been alone with R.N. for approximately two to four hours. The Department did not seek to remove the child after this violation of the safety plan. Instead, Wenzel reviewed the safety plan with the parents again and agreed to continue with FBSS. Notably, Wenzel found in his initial investigation that there was reason to believe that R.N.'s failure to thrive was related to the parents' inability to care for and feed her.

After removal, the parents proposed that R.N. be placed with Harrington. Wenzel testified that the Department discussed with the parents that Harrington's home “was a long distance” from Brownwood and requested other placement options that were geographically closer.

Wenzel recalled that the parents were concerned that R.N.'s physicians were not “doing anything” that improved the child's condition. Wenzel agreed that the parents acted appropriately by seeking medical treatment for R.N.

B. Chrisstena Nelson

Chrisstena Nelson was temporarily assigned as an investigator while Wenzel was on vacation. Nelson visited the parents at the hospital on January 5 and 8 during R.N.'s second hospitalization. Mother's explanations to Nelson regarding R.N.'s missed feedings did not coincide with the feeding logs. When questioned by Nelson, Mother admitted that she was randomly filling in the feeding times and amounts. Mother also admitted that she and Father were not following the safety plan requirement of 24/7 supervision. Nelson discussed various options with the parents such as entering a PCSP and sending photographs of the bottles that were used for feeding to create a digital feeding log. The parents said they had no options for the PCSP; they agreed to the digital feeding log but then never implemented it. According to Nelsen, the parents also violated the safety plan by arriving at the hospital unsupervised with R.N.

When R.N. was discharged from her second hospitalization, she left with the parents, even though the Department was aware that the parents were not complying with the safety plan. Nelson understood that the event that caused the Department to seek removal was because R.N. lost an ounce of weight within approximately fifteen hours of being discharged from her second hospitalization.

C. Dr. Scott Morris

Dr. Scott Morris was R.N.'s pediatrician from R.N.'s birth through trial, excepting the time that R.N. was in San Antonio during the monitored return to the parents. At birth, R.N. appeared healthy; however, Dr. Morris acknowledged that R.N. had a genetic problem that was not identifiable on the newborn exam. R.N. weighed eight pounds at birth. Dr. Morris testified that on November 29, R.N. weighed eight pounds and fourteen ounces. R.N. was under the care of her parents during this time. On that date, Dr. Morris diagnosed R.N. with feeding problems.

Dr. Morris saw R.N. again on December 11, and she weighed eight pounds and fifteen ounces. Dr. Morris expected typical weight gain to be about an ounce or thirty grams each day. Dr. Morris diagnosed R.N. with failure to thrive, and R.N. was thereafter hospitalized for five days. R.N.'s weight improved from eight pounds and fifteen ounces to nine pounds and six ounces during this hospitalization. According to Dr. Morris, R.N.'s feedings were conducted by nurses, the parents with nurse supervision, and the parents while documenting the feedings. Dr. Morris testified that the parents did well with the feedings during this hospitalization. When R.N. was discharged with the parents, Dr. Morris requested a safety plan that required the parents to document R.N.'s feedings and supervision to ensure that R.N. was receiving the prescribed feeding volume at the correct frequency. R.N. weighed nine pounds and five ounces on December 16 when she was released from the hospital to the parents.

While in the care of the parents after the first hospitalization, Dr. Morris reported that R.N. initially gained some weight but was ultimately required to be hospitalized a second time on January 3, 2024. R.N.'s weight between the first and the second hospitalizations only increased one ounce. Dr. Morris characterized the child's weight gain on December 19 as great but stated that R.N.'s weight gain between hospitalizations was not appropriate, that R.N. was endangered by being at home with the parents, and that R.N. was again in a life-threatening situation.

Dr. Morris reported that, during R.N.'s hospitalizations, R.N. gained weight and grew appropriately, but not while she was under the care of her parents. When asked if the problem was social versus genetic, Dr. Morris indicated it was multi-factorial, but a significant factor was a social one. Dr. Morris had “grave concern[s]” about the social problems before R.N. was removed because R.N. was able to gain weight while feedings were supervised. Although he could assign “concern,” Dr. Morris could not assign percentages as to whether R.N.'s condition was because of her genetic variation, social factors, cardiac concerns, or the care provided by her caregivers.

On or about July 30, 2025, R.N. was placed on a monitored return with the parents in San Antonio. R.N. returned to see Dr. Morris with the Alvas on October 11, 2025; she weighed twenty pounds. Two days later, R.N. weighed twenty-one pounds and two ounces. Dr. Morris concluded that R.N. did not gain significant weight during the monitored return but did as soon as she returned to the Alvas.

Dr. Morris characterized the weight that R.N. gained between the October 11 and 13 visits as substantial. He “wondered if the child was hungry,” and further indicated that he could “only imagine” that the child's gain in weight was from either consuming a lot of food and water or not having previously been given much food or water.

Dr. Morris acknowledged that R.N.'s weight at times vacillated with illness and, at least one decline, was because R.N. was weighed while clothed instead of being naked. For example, on June 23, 2025, R.N. weighed nineteen pounds two ounces but a few days later, while having a fever, R.N. weighed eighteen pounds six ounces. Dr. Morris admitted that the child lost and gained weight while in the care of the Department, the parents, and the Alvas. Dr. Morris also testified that some of R.N.'s weight loss while the child was not in the parents' care were because of illness. Dr. Morris described R.N. as difficult to feed at times.

Dr. Morris instructed the parents during R.N.'s hospitalization about how to properly feed her, and to maintain feeding logs before the second admission. Although the parents followed feeding instructions during R.N.'s hospitalizations, Dr. Morris testified that by the second hospitalization the parents were not meeting the child's needs, the child was in danger, the parents were not able to keep the child healthy, the child's nutritional goals were not being met during a critical time period for nutrition, and efforts had been made to help the parents correct the situation. Dr. Morris could not discern whether the parents completely comprehended the instructions that he gave them or if the parents were simply unwilling to follow them. If the parents had followed the instructions, Dr. Morris stated that R.N. would not have been hospitalized the second time. However, Dr. Morris admitted that he had no evidence that the parents were not following his feeding instructions during the times that R.N. lost weight while in their care and acknowledged that the parents showed concern for R.N. by taking her to his clinic. Dr. Morris described R.N. as thriving as of the date of trial.

D. Dr. Claudia Soler-Alfonso

Dr. Claudia Soler-Alfonso is a pediatrician and medical geneticist at Cook's. Dr. Soler-Alfonso had only one video appointment with R.N. The purpose of the appointment was to provide a second opinion regarding R.N.'s genetic testing that was performed by a prior geneticist sometime in June 2025. Dr. Soler-Alfonoso never spoke to the parents.

According to Dr. Soler-Alfonso, the genetic testing clearly explained R.N.'s developmental delays but did not provide much insight as to her growth delays. R.N. has a very serious genetic issue that affects how the brain develops, specifically for movement and development. A child with developmental differences is referred to as a child with neurodevelopmental conditions; those children often have feeding issues, such as with swallowing and getting or demonstrating hunger cues. If feeding difficulties from neurodevelopmental conditions are sustained over time, it can result in a diagnosis of failure to thrive.

As for R.N., Dr. Soler-Alfonso stated that additional evaluations were necessary to determine whether R.N.'s genetic conditions were affecting her ability to feed and grow. Those evaluations included physical, occupational, speech, and feeding therapies. Dr. Soler-Alfonso noted in her records the reasons for R.N.'s developmental delays and failure to thrive, and nothing in Dr. Soler-Alfonso's report suggested that the parents actions or inactions could have caused the child's genetic variations.

E. Dr. Marcus DeGraw

Dr. Marcus DeGraw testified on behalf of the parents. Dr. DeGraw was tendered as an expert in the fields of general child pediatrics and child abuse pediatrics. Dr. DeGraw only reviewed R.N.'s medical records; he did not physically examine R.N. Nor did Dr. DeGraw speak with Dr. Morris, Dr. Hull, Dr. Soler-Alfonso, the nurses at the hospital, or the parents. However, Dr. DeGraw testified that physically examining R.N., or speaking with the pediatricians or the parents would not change his opinions.

Dr. DeGraw disagreed with Dr. Morris's opinion that the child's failure to gain weight was largely a result of the parents' ability to feed the child rather than the child's genetic problem. Dr. DeGraw opined that any doctor's concern during R.N.'s early infancy was appropriate but a neglect theory at the time of trial “bl[e]w [his] mind.” Although the approach by R.N.'s doctors to hospitalize her was appropriate, Dr. DeGraw disagreed that illness, unless significant, would cause weight loss for a child and he did not believe it was an appropriate suggestion that R.N. only struggled when ill.

In Dr. DeGraw's opinion, R.N.'s genetic condition was likely the primary reason for her early failure to thrive and persistent difficulty with growth. Dr. DeGraw testified that, despite a complete change in parenting, venue, and care, the child continued to struggle with growth and gaining weight. Dr. DeGraw stated that there was nothing in the files that he reviewed that caused him concern that the parents abused or neglected R.N.

F. Trinity Tilley

Trinity Tilley is Mother's sister; she was twenty at the time of trial. Tilley lived in Brownwood when R.N. was born. Tilley testified that initially the parents and R.N. lived in an apartment but were evicted a couple of weeks after R.N. was born. Following the eviction, the parents and R.N. moved into Howard's home, who Mother referred to as both her “dad” and “stepdad.” Tilley, her child, and an uncle also resided in Howard's home. The parents and R.N. began residing at Howard's home before R.N.'s first hospitalization and remained there until two weeks after R.N.'s second hospitalization. Tilley stated that when the parents stopped living with Howard, they moved in with Father's foster sister and her fiancé. The fiancé was confined in the Brown County jail at the time of trial for charges of aggravated assault with a deadly weapon, assault family violence by occlusion, and injury to a child, elderly individual, or disabled individual. See TEX. PENAL CODE ANN. §§ 22.01(b)(2), 22.02(a)(2) (West 2026), § 22.04 (West Supp. 2026). Approximately one to two weeks later, the parents moved to San Antonio.

During the time that Tilley resided with the parents and R.N. she recalled the parents telling her about the safety plan with the Department and discussing the hospital's feeding instructions. Tilley also saw the hospital's written feeding instructions and the feeding log. Tilley observed that the parents did not feed R.N. as instructed by the hospital staff and did not fill out the feeding log every time after a feeding. She believed the parents cared more about “video games and themselves” than feeding R.N. However, Tilley did state that the parents complied with the safety plan's 24/7 supervision requirement.

Tilley testified that the parents allowed R.N. to “cry and cry and cry,” which concerned her because the parents were not feeding R.N. every three hours as instructed. Tilley would bottle-feed R.N. when she was crying and did not observe any issue with R.N. choking or struggling to feed. When Tilley would point out to the parents that R.N. was hungry, Tilley testified that Father would become defensive and make remarks such as “back off”; ask her to leave him or R.N. alone; tell her that “that is his daughter” and “he will do what he wants”; and state that R.N. was “fine,” or that “[crying was] good for her lungs.”

Tilley testified that Mother's behavior had changed since she met Father. Before they met, Mother was happy, talkative, and laughed often. But now Mother was “closed off,” had separated herself from everyone in the family, and did not talk to them unless Father was with her. Tilley believed that Mother could not successfully parent R.N. around Father but could if she was not with him.

G. Miranda Harrington

When R.N. was placed with Harrington, they lived in Donna, which is in South Texas. Harrington testified that she arranged for R.N. to be treated by a pediatrician, took R.N. to a specialist, obtained a referral for a geneticist, monitored feedings, logged the times and amount that R.N. was fed, and followed the physician's instructions regarding the specific formulas to feed R.N.

After about three months with Harrington, the parents decided that R.N. should be closer to Brownwood, which, at the time, was closer to them for visitation purposes. Harrington recommended, and R.N. was moved to the Alvas' home in Brownwood. Two or three days after the child arrived there, however, Harrington reported that the parents moved to San Antonio. The move requested by the parents occurred before R.N.'s appointment with the geneticist.

Harrington testified that she did not care for Father because of his “criminal background,” or for how Father manipulated and controlled Mother. Harrington described Father's treatment of Mother as emotional abuse. Harrington testified that she was unaware of any evidence of physical abuse between the parents. Harrington's perspective was that Mother cannot speak to Harrington without Father being present.

H. Father

As a child, Father was in foster care and lived in many placements. Following the termination of his parents' parental rights, he was adopted. Father testified that he experienced mental, sexual, and physical abuse on multiple occasions while in foster care.

Father is a registered sex offender and is required to register until June 2028. He was referred to juvenile proceedings when he was thirteen for conduct that occurred when he was twelve. Father testified that the charge was “rape” but described the underlying conduct as touching a then seven-year-old female relative while she was unclothed. As a juvenile, Father attended and completed the Pegasus sex offender treatment program. He testified that he has not reoffended and regrets his past conduct.

Father testified that his brother, Z.N., was also physically abused while in foster care. Z.N. is also a registered sex offender. According to Father, Z.N. influenced him when Father sexually abused his younger female relative. At times, Father and Mother allowed R.N. to have contact with both the paternal grandmother, who had a history with the Department, and Z.N. Father's caseworker allowed him to decide whether this contact was appropriate, and Father believed that it was safe for his mother and Z.N. to be around R.N.

Father admitted that R.N. was hospitalized because he did not feed her as instructed. At birth, Father denied that he was given documentation by hospital staff that instructed him how to care for R.N. but he recalled the hospital staff telling them to “stick the bottle in her mouth[,] squeeze the bottle[,] and then close her mouth and make her swallow it.” Father did not use this method because it could cause choking and was a safety risk for R.N. Father stated that the hospital staffs likewise did not give the parents any written instructions about how to care for R.N., except for “safety sleeping.” Father recalled asking Dr. Hull to refer R.N. to Cook's during her first hospitalization but his request was denied. Father experienced similar weight gain issues when he was younger—he weighed ninety pounds from age thirteen to eighteen.

Father testified that he completed a drug and alcohol test and a psychological evaluation for the Department. He also provided proof that he completed counseling. He denied that he controls Mother.

During the monitored return, Father researched the availability of pediatricians who could treat R.N. and he took her to a gastroenterologist at Christus Children's hospital. The parents were feeding R.N. a high protein diet and had tried using PediaSure and Duocal. Father testified that R.N. would eat almost anything, but she is no longer fed with a bottle and is not in any danger with them.

Despite the allegation, he denied ever showering with R.N. Father described R.N. as a “bag of giggles” that is happy to see him during visitations, and she becomes upset when the visits end.

I. Amanda Poole

Amanda Poole was the third caseworker assigned by the Department to R.N.'s case. The Department created one family plan of service in February 2024 that contained all the services for both parents. The service plan required the parents, among other things, to: (1) learn how to feed R.N.; (2) give R.N. what she needed to grow and develop properly; (3) maintain safe and stable housing; (4) allow announced and unannounced home visits and photographs to be taken during these visits; (5) maintain employment; (6) complete a parenting program and demonstrate the skills that they learned from that parenting program; (7) attend visitation; (8) document R.N.'s feedings during visitations; and (9) complete a mental health assessment, complete a psychological evaluation, participate in counseling, and follow all recommendations. The service plan also stated that counseling was to address “taking responsibility for [the parents'] actions that led to the removal of [R.N.], depression/anxiety, and any other needs that may arise.” The only service specific to Father was that he “comply[ ] with the terms of his sex offender registry” and avoid engaging in any criminal activity.

The service plan informed the parents that so long as they were in a relationship, their progress would be evaluated together; however, if their relationship ended, they would be evaluated independently. The parents attended counseling with more than one therapist. After the monitored return ended, the parents selected their counselors and presented reports from these counselors that the parents had completed their sessions and were discharged. However, the Department would not accept these reports as proof that the parents had completed counseling because Poole did not “feel like they can make a determination on if [the parents] met all their goals in four sessions” and the goals identified by the counselors did not include “therapy for them to deal with the reason the child came into care [and] parenting services to help them know how to better parent their child.”

Poole testified that Father's status as a sex offender is a “big thing,” however, she admitted that she did not refer Father for any services that were related to his sexual offense, no one asked the trial court for him to complete sex offender counseling, and that she would have referred a relevant service for him if she believed it was necessary. She observed no signs that Father had reoffended. The only exception was an intake for alleged sexual abuse that was ruled out. Poole stated that the Pegasus program Father completed was a good program that she had seen others do well in; however, she believed there is always a “concern” that a registered sex offender may reoffend. She testified that Father was not at a higher risk than the average person to offend or reoffend. Poole testified that Father had not violated the terms of his sex offender registry, and she did not oppose placing R.N. on the monitored return based on Father's status as a registered sex offender.

Poole recounted four home visits that were made by either herself, Parchem, or Longoria between September 3 and October 6. Poole reported the following “safety problems” that were observed during these home visits: (1) roaches crawling on the floor; (2) tools left in the open; (3) a small crowbar on the stairs; (4) a cigarette butt on the stairs; (5) no security gates to block the stairway and prevent R.N.'s access; and (6) a mop bucket full of milky white water with dead roaches floating in it. The mop bucket concerned Poole because R.N. could drown if she fell in it, but she later admitted that R.N. was not harmed by the mop bucket's presence. The tools that were observed that caused concerns included a screwdriver, a small drill bit, and the crowbar.

There were also “concerns” reported to Poole by Gypsy Poppawell, another courtesy worker, following other home visits. Poppawell did not have concerns with every home visit, however, when she did Poppawell would advise the parents to clean their home and they complied. Although the parents cleaned their home at Poppawell's request, she developed subsequent concerns about the home's cleanliness.

As to R.N.'s weight, Poole testified that the child continued to struggle with gaining weight but that she had “gained weight off and on throughout this case.” She expressed concern that the parents would starve R.N. Poole testified that R.N. weighed twenty-one pounds on March 4, 2026, and twenty-one pounds and two ounces when the monitored return ended on October 10, 2025. When Poole picked up R.N. on the day the monitored return ended, R.N. drank all the PediaSure she was given in a sippy cup and ate snacks. Poole stated that R.N. has some genetic issues, and that she only gained about eight ounces during the monitored return.

The Department's goal was termination of each parent's parental rights and adoption by the Alvas. Poole admitted that adoption was “not necessary but that's what we're going for.” Poole believed that termination was in R.N.'s best interest because the parents had been given many opportunities to prove that they could effectively parent but “concerns” remained regarding their ability to maintain a safe home, be protective parents, and meet all of R.N.'s medical needs in the future. The concerns about the parents' ability to meet R.N.'s medical needs included their lack of available funds and reliable transportation. But Poole conceded that these concerns were speculative. Poole last visited the parents' home on March 19, 2026. She described the home that day as clean and “a lot better than it ha[d] been throughout this case.”

J. Faith Parchem

Faith Parchem was the Department's second courtesy worker assigned to R.N. in San Antonio while the parents resided there. Parchem made unannounced visits to the parents' home on the following dates: September 3, 2025, September 19, 2025, and October 3, 2025. Parchem never took photographs of the home's condition during any home visit.

No one answered the door on Parchem's second home visit, but she made contact with the parents on her first and third home visits. On the first home visit, Parchem was concerned with the home's cleanliness and she identified the following specific concerns: (1) clothes were piled up high and laundry baskets were stacked on top of each other; (2) three unwashed dishes with food on them were in the open; and (3) “bits” of trash were on the floor. Parchem estimated that the stack of laundry baskets was at least as tall as R.N. Parchem did not know the age of the food, but she acknowledged that there was no mold on the food and it could have been on dishes from the family's most recent meal. As for the trash, Parchem identified about ten pieces that were roughly an inch in size. Parchem explained the hazards of old food and trash possibly making R.N. sick, as well as the “tip-over risk” of the laundry baskets. Parchem also advised the parents about how to correct these conditions.

On the third visit, Parchem identified the following concerns: (1) the absence of a baby gate near the stairs; (2) an unsmoked cigarette was on the stairs; (3) at least six roaches were observed, one of which Mother flicked toward R.N.; (4) a strong odor of dog urine; (5) a small patch of unknown wetness in the dog's crate that R.N. climbed into; (6) small pieces of trash throughout the home; and (7) R.N. did not want to go to Mother and instead was more attentive to Parchem, whom she had only met once before for approximately thirty minutes.

Parchem testified that the condition of the parents' home on the third visit was worse than her first visit a month earlier. Parchem noted that there was no food in the cabinets because the home was being sprayed for bugs. The refrigerator, on the other hand, was “packed” with food. Parchem did not ask the parents about the source of the bugs. Parchem believed that it would be safer if the family left their home while it was being sprayed with toxic poisons; however, she testified that she “was not at the residence when they were spraying for bugs[,]” and she did “not know when they sprayed for bugs, if [the parents] were home, [or] if [R.N.] was home” at the time the home was sprayed. Parchem did not sniff the wet area in the dog crate and stated it could have been anything, including water or drool.

Parchem had no personal knowledge of either parent ever physically harming R.N. Parchem believed that the parents' home environment was not safe and endangered R.N, and she made an intake for physical neglect on October 3, 2025. The report made by Parchem did not reference R.N.'s weight, and she did not note any evidence of harm to R.N. because of the alleged neglect. After its investigation, the Department made a finding on Parchem's intake of “unable to determine,” meaning that the Department had insufficient evidence to conclude whether alleged abuse or neglect had occurred. Parchem testified that the threshold to remove a child not yet in the Department's custody is higher than a child on a monitored return, and that R.N. would not have been removed under the higher standard.

K. Johnny Longoria

Johnny Longoria is a special investigator with the Department. On October 6, 2025, Longoria was assigned the intake made by Parchem. According to Longoria, the referral alleged serious concerns for R.N.'s safety. Longoria went to the parents' home on the day he was assigned the intake and was allowed into the residence by Father. Longoria recalled that the first room in the home was very dark and cluttered to the point that he needed to watch where he walked. Longoria did not ask Father to turn the lights on, nor did he use his flashlight to observe the rooms. Longoria smelled a faint odor of urine in the home.

While there, Father requested to know the Department's allegations and that he needed to speak with his attorney before deciding whether to agree to an interview with Longoria. Father called Mother's attorney, Marcus Wood. At the conclusion of the call, Father declined Longoria's request to be interviewed.

Longoria testified that, in most cases, he would have taken photographs of the home with the homeowners' permission. Although Longoria did not ask to take photographs of the parents' home, Father denied Longoria's request to take photographs of R.N.

Before the investigation was completed, R.N. was removed from the monitored return. Longoria and Poppawell went to the parents' home on October 9 to remove R.N. Father allowed Poppawell into the home but would not surrender R.N. without a court order. Longoria and Poppawell returned to the parents' home the following day with a court order, at which time they removed R.N. based on the information provided by Parchem, not on the information Longoria had accumulated during his limited investigation. As noted above, ultimately, the disposition of Longoria's investigation was “unable to determine.”

L. Mother

Mother was twenty-three at the time of trial. At the outset, she denied that Father controlled her.

R.N. was delivered by cesarean section without any complications. The only feeding instructions she recalled receiving from the hospital staff immediately after R.N. was born was to feed R.N. every two to three hours. She recalled that R.N. had a lip tie and did not want to eat. Mother tried to help her eat by using different bottles and nipples for the bottles. Mother testified that she told the doctors that something was wrong with R.N., but no one would listen. Dr. Morris refused to refer R.N. to a specialist when she and Father had requested one. According to Mother, the only medical advice that she did not follow was to “force feed[ ]” R.N. because it would have resulted in R.N. choking. Mother understood the concerns that the doctors and the Department initially had for R.N. Mother testified that, after removal, the only parent-child visitation that the parents missed were visits that the Department cancelled. Throughout the case, Mother worked in the food service industry and at a gas station.

During the monitored return, Mother worked during the day, and Father worked at night so that R.N. always had someone present to care for her. A pediatrician in San Antonio treated R.N. during the monitored return and Mother noted that San Antonio had more health care options and specialists there. Mother acknowledged that their home had roaches during the monitored return. An exterminator was unable to find the source of the roaches, but the home was sprayed. During the extermination process, Mother and Father removed the food from the cabinets so that the food would not be exposed to the extermination chemicals and they went to a neighbor's home. As for Parchem's statement that Mother flicked a roach toward R.N., Mother testified that she was attempting to kill the roach when she flicked it. And as it relates to Parchem's testimony that R.N. preferred to be with her during the third visit, the parents testified that R.N. loves new people, and Mother testified that she was not surprised that R.N. ran to Parchem during that visit because of this. Mother further testified that R.N. was hungry immediately following the removal because Mother and Father were preparing to feed R.N. lunch when the Department's caseworkers arrived.

At the time of trial, Mother reported that the parents had stable housing and had acquired a vehicle. She produced a letter from her chosen counselor that indicated that she had completed therapy. Mother testified that she had a good relationship with the Alvas before this case was filed but that she no longer wanted R.N. to be placed with them because the Alvas call R.N. by a different name and there are older boys in the Alvas' home.

M. Joann Alva

Joann Alva is Howard's sister, and she considers Mother to be her niece. She is married to Christopher. The Alvas have a large family, consisting of ten children, fourteen grandchildren, and three great grandchildren; all of them live nearby. They have biological children and adopted children. At the time of trial, R.N. and three of the Alvas' adopted children were residing with the Alvas. R.N. was two years and five months old when trial commenced and had lived with the Alvas for twenty-two months. R.N. had lived five to six months with her parents and one month with Harrington.

Joann described R.N. as a happy child that is full of joy, always smiling, and “fun-loving.” R.N. calls Joann “mama” and Christopher “dad.” Joann testified that she loves R.N. and stated that R.N. loves her too. The Alvas hope to adopt R.N.

Joann supervised the visitations and phone calls between R.N. and the parents until Father told her that he could not be around children because he was a “child sexual offender.” At that point, Joann only supervised the phone calls.

There was an allegation of sexual abuse made against the parents while R.N. was living with the Alvas. When R.N. returned to the Alva's home, she had a “red and swollen” vagina. Joann took R.N. to the hospital, and a “SANE test” was ordered. According to Joann, the doctor that ordered the exam was concerned that R.N. had been sexually molested or assaulted because “she was swollen and red.”

When R.N. returned to the Alvas home after the monitored return ended, Joann described changes that she observed in R.N.'s behavior. She noticed that R.N. would cry and often throw fits at bedtime, and she explained that R.N. had “night terrors” where R.N. would cry and would not go back to her room. Joann also described R.N. as being very hungry.

Joann stated that she had concerns about Mother consuming alcohol, but she conceded that she never reported those concerns to the Department. Her concerns were based on having observed Mother drinking alcohol on her sixteenth or seventeenth birthday. More recently she knew of two instances where Mother “got drunk and lost her phone.” R.N. was with the Alvas, and not Mother, on these occasions.

IV. Section 161.001(f) – Reasonable Efforts and Continuing Danger

In their second issue, Mother and Father challenge the legal and factual sufficiency of the jury's findings that: (1) each parent endangered R.N. pursuant to Section 161.001(b)(1)(D) and (E); (2) termination of each parent's parental rights is in R.N.'s best interest; and (3) the Department made reasonable efforts to return R.N. to the parents and, despite those reasonable efforts, a continuing danger existed in the parents' home that prevented the return of R.N. to them. See FAM. §§ 161.001(b)(1)(D), (E), (b)(2), (f). We begin with the parents' sufficiency challenges to the Section 161.001(f) findings because our resolution of this issue is dispositive of this appeal.

Pursuant to Section 161.001(f), the parent-child relationship may not be terminated unless:

[T]he [factfinder determines] by clear and convincing evidence ․ that ․ the [D]epartment made reasonable efforts to return the child to the parent before commencement of a trial on the merits and despite those reasonable efforts, a continuing danger remains in the home that prevents the return of the child to the parent.

FAM. § 161.001(f)(1). In this regard, the Department must establish by clear and convincing evidence two statutory prongs—“reasonable efforts” and “continuing danger.” See id.

A. Reasonable Efforts

Subsection (f) borrows the phrase “reasonable efforts to return the child to the parent” from Section 161.001(b)(1)(N), the “constructive abandonment” statutory termination ground. See FAM. § 161.001(b)(1)(N), (f); In re M.N.M., 708 S.W.3d 321, 328 (Tex. App.—Eastland 2025, pet. denied). We and our sister courts have held that, in appropriate circumstances, which are not present here, the Department's implementation of a family service plan may constitute a reasonable effort to return the child to a parent. D.F. v. Tex. Dep't of Fam. & Protective Servs., 731 S.W.3d 726, 742 (Tex. App.—Austin 2026, no pet.); M.N.M., 708 S.W.3d at 329 (collecting cases); In re M.A., No. 11-26-00054-CV, 2026 WL 2339171, at *15 (Tex. App. — Eastland Aug. 13, 2026, no pet.); In re T.R., No. 01-25-00924-CV, 2026 WL 958570, at *11–12 (Tex. App.—Houston [1st Dist.] Apr. 9, 2026, pet. denied) (collecting cases); see also In re K.G., 350 S.W.3d 338, 354 (Tex. App.—Fort Worth 2011, pet. denied); In re H.B.S., No. 12-26-00007-CV, 2026 WL 960744, at *5–6 (Tex. App.—Tyler Apr. 8, 2026, pet. denied) (mem. op.).

However, evidence of a service plan is not absolutely required nor is it the exclusive means of establishing the Department's reasonable efforts to return the child. M.N.M., 708 S.W.3d at 329 (collecting cases). Instead, the pertinent inquiry “is whether the Department made reasonable efforts, not ideal efforts.” Id. (quoting In re J.A., No. 04-20-00242-CV, 2020 WL 5027663, at *2 (Tex. App.—San Antonio Aug. 26, 2020, no pet.) (mem. op.)); In re J.B., No. 11-26-00093-CV, 2026 WL 2869295, at *8 (Tex. App.—Eastland, Sept. 24, 2026, no pet. h.) (mem. op.); M.A., 2026 WL 2339171, at *15; In re J.H., No. 01-25-00854-CV, 2026 WL 968923, at *15 (Tex. App.—Houston [1st Dist.] Apr. 10, 2026, no pet. h.) (mem. op.). The reasonableness of the Department's reunification efforts must also be considered with the parents' recent history and engagement, or lack thereof. M.N.M., 708 S.W.3d at 332; see M.A., 2026 WL 2339171, at *15.

The trial court's termination order lists the following as the reasonable efforts made by the Department to return R.N. to the parents, namely, that it: (1) provided a safety plan before removal and attempted to update the safety plan after the parents violated it; (2) assigned the case to FBSS; (3) created a family service plan that was “narrowly tailored to address any specific issues identified”; (4) made referrals for services, and either provided services or paid for them; and (5) agreed to a monitored return for the parents that ended in its early stages. In addition to these findings, the evidence shows that the Department attempted to place R.N. with family members (i.e., Harrington and the Alvas). See M.N.M., 708 S.W.3d at 329.

While each finding may provide proof of reasonable efforts, the Department's customary and routine implementation of these same efforts in every instance in which it seeks termination does not alone satisfy the reasonable efforts criteria. As we have said, the reasonableness of the Department's efforts must be evaluated and measured against the parents' recent history. See id. at 332; M.A., 2026 WL 2339171, at *15. Moreover, merely creating a service plan and sending referrals for services to the parents, without more, does not conclude the Department's obligations to them. See M.A., 2026 WL 2339171, at *15; M.N.M., 708 S.W.3d at 332.

We note that the case before us bears significant similarities to H.S., which cannot be ignored. In H.S., the supreme court held that the evidence was legally insufficient to support the finding that termination of the mother's parental rights was in the children's best interest.³ 741 S.W.3d at 13. The parents in H.S. were married and the father had a history of family violence. Id. at 9–10. The Department signaled to the mother that it was permissible for her to remain with the father; despite this, the Department's asserted grounds for termination against the mother at trial were premised on her unwillingness to separate from the father. Id. at 20–21. The supreme court explained:

[W]hen a parent's rights may be terminated based on a spouse's violence, the department should proceed with particular caution—especially when the spouse's violence is not directed at the children.

․

Imposing a demand for divorce is unlawful, and imposing such an unlawful demand sub silentio is even worse than demanding it overtly. This case reflects the problem that can arise if the real goal—to separate a married couple—is communicated only indirectly, while a demand for the couple to reunite and thrive is made overtly. Generating such cognitive dissonance creates independent problems related to due process because parties cannot be expected to comply with orders that they cannot reasonably understand. There is every indication here that [the mother] never understood exactly what the department wanted.

Id. at 18, 21. We believe that the rationale expressed by the court in H.S. is applicable to the reasonable-efforts argument raised by Mother.

In the instant case, the Department relied on Father's status as a registered sex offender and his one, prior act of sexual misconduct with a minor child when he was twelve as a basis to seek termination. Mother indicated to the Department that it was her understanding that Father's status as a registered sex offender was not a concern and, because it was not, she intended to remain with him. Mother was not required to work any services that pertained to Father's sex offender status, and she believed she had completed the conditions of her service plan.

Due process requires that the Department explicitly explain to Mother that remaining in the same household with Father under these circumstances could result in the Department seeking termination of her parental rights to R.N. See H.S., 741 S.W.3d at 12, 23 (finding that the Department had not given mother a clear directive regarding father). Here, the record is devoid of any admonishment and the Department's intentions on this issue. Instead, the Department affirmatively signaled to Mother that there would be no adverse consequences if she remained with Father—the terms of the safety plan before removal, the service plan, and the parties' Rule 11 Agreement for a transition monitored return so state. The uncontroverted evidence further established that R.N. was placed on the monitored return even though the Department knew Father was a registered sex offender, R.N. was not removed from the monitored return because of any sexual abuse concerns, and the Department did not ask Father to work any services with regard to his sex offender status except to comply with his sex offender registration requirements—which he was already duty bound to follow—and not to engage in any criminal activity.

As to Father, the same uncontroverted evidence applies to his sufficiency challenge. Had the Department given a clear directive to him that remaining in the home with Mother would cause the Department to seek termination of his and her parental rights, Father may have chosen to take steps to avoid such an outcome.

Mindful of the deference that we must afford the jury as the factfinder and viewing the evidence in the light most favorable to the jury's finding, we conclude that a reasonable factfinder could have formed a firm belief or conviction that the Department's efforts at reunification were reasonable. However, when we weigh the disputed evidence that is contrary to the jury's finding against the evidence that favors it, we conclude that a reasonable factfinder could not have formed a firm belief or conviction that the Department's efforts were reasonable in this circumstance because the Department failed to: (1) admonish the parents that Father's status as a registered sex offender created a continuing danger that prevented R.N.'s return to them; (2) create a family plan of service that addressed the steps that were necessary for the parents to eliminate the alleged continuing danger; and (3) refer appropriate services to the parents to assist them in remediating the alleged continuing danger. Cf. H.S., 741 S.W.3d at 12. Accordingly, for these reasons, we hold that the evidence of the Department's “reasonable efforts” under Section 161.001(f) is legally sufficient but not factually sufficient to support the jury's finding as to each parent.⁴

B. Continuing Danger

We have not, until today, construed the meaning of the phrase “continuing danger” as used in Section 161.001(f), although some of our sister courts have.

“Statutory construction is a question of law, and [our] review is conducted de novo.” City of Round Rock v. Rodriguez, 399 S.W.3d 130, 133 (Tex. 2013). “Our ultimate purpose when construing a statute is to [discern] the Legislature's intent,” and the statute's text is the best indication of it. Id. We must not interpret the statute in a manner that renders any part or provision meaningless or superfluous. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008). “In ascertaining a term's meaning, courts look primarily to how that term is used throughout the statute as a whole.” Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Statutory terms should be interpreted consistently in every part of a statute. Id. Thus, “courts should not give an undefined statutory term a meaning [that is] out of harmony or inconsistent with other provisions, although it might be susceptible of such a construction if standing alone.” Id.

Like our sister courts, we note that the phrase “continuing danger” appears in more than one section of the Family Code. For example, at the adversary and each permanency hearing before the final hearing on the merits commences, a continuing danger must be found; otherwise, the child must be returned to the parent. See FAM. §§ 262.201(g)(3), 263.002(c)(1). Likewise, a “continuing danger” can compel a parent's or a family's participation in court ordered services. See FAM. §§ 262.404(a)(1), 264.203(m)(1); see also id. § 262.1015(f)(1) (continuing danger required to order removal of an alleged perpetrator). Because of this, the construction of the phrase “continuing danger” in Section 161.001(f) should be consistent and harmonize with the construction of the same phrase as it is used in other sections of the Family Code. See Needham, 82 S.W.3d at 318.

However, no other section of the Family Code that references this phrase uses the same evidentiary standard—clear and convincing—that is mandated by Section 161.001(f). See In re T.R.C., No. 09-26-00019-CV, 2026 WL 1953219, at *24–26 (Tex. App.—Beaumont July 6, 2026, no pet.) (“[W]e are unaware of any provision of the Texas Family Code that uses ‘continuing danger’ in the same manner as it is used in [S]ection 161.001(f), particularly under the relevant [clear and convincing] evidentiary standard.” (quoting T.R., 2026 WL 958570, at *13)).

The courts in T.R.C. and T.R. have held, and we agree, that a “continuing danger” as used in Section 161.001(f) requires that the danger (1) be continuing, (2) remain in the parents' home, and (3) prevent the return of the child to the parent. See T.R.C., 2026 WL 1953219, at *24–26; T.R., 2026 WL 958570, at *13–14. Thus, the present existence of a “continuing danger” is critical to this determination. Much like our holding that reasonable efforts are evaluated against the backdrop of the parent's recent history, so too should the determination of whether a continuing danger presently exists in the parent's home. See M.N.M., 708 S.W.3d at 332; see also T.R.C., 2026 WL 1953219, at *24–26; T.R., 2026 WL 958570, at *13; In re T.D.-B., No. 06-25-00054-CV, 2025 WL 3684457, at *17 (Tex. App.—Texarkana Dec. 19, 2025, pet. denied) (mem. op.) (Rambin, J., dissenting) (“[T]o give effect to ‘continuing,’ what has happened before should be attenuated by what has happened since, and a greater emphasis should be placed on the circumstances at the time of the final hearing.”).

Further, a factfinder may determine that a parent's prior conduct supports a finding of “continuing danger,” in much the same way that prior conduct may support a finding of endangerment. See In re J.S., 687 S.W.3d 541, 548 (Tex. App.—Eastland 2024, no pet.); T.R., 2026 WL 958570, at *13–14. Given that the phrase “continuing danger” is only applied to relief that is sought by the Department, its usage in Section 161.001(f) must relate back, at least in part, to the “continuing danger” that the Department sought to alleviate at the outset of the case. That is not to say that additional or different continuing dangers cannot occur after a termination action is initiated, but evaluating the “continuing danger” that existed at the time of removal when compared to the facts of the same “continuing danger” that existed at the time trial commences is at least one factor that the factfinder should consider.

1. The Parents' Sufficiency Challenges

The “continuing danger” that existed when R.N. was first removed was the parents' inability to properly feed her. The parents were also experiencing housing instability. The Department's witnesses confirmed that the removal and finding of abuse or neglect in 2024 was related to the concerns of the child's weight and thus not related to any act of physical abuse or Father's then-existing status as a registered sex offender.

The Department relied largely on Father's sex offender status as part of its argument that a continuing danger existed in the parents' home. In In re Z.M., No. 11-26-00069-CV, 2026 WL 2523488 (Tex. App.—Eastland Aug. 27, 2026, no pet. h.), we recently addressed a father's status as a sex offender and held that, without evidence that the father's violent behavior had continued and created a risk to the child's well-being, his conduct from the distant past was of minimal probative value. 2026 WL 2523488, at *13. The same circumstance appears to be applicable here.

Father's age is unclear. Father believed that his sex offender registration hearing occurred sometime in 2017 when he was fifteen. From this we can discern that Father was twenty-three or twenty-four at the time of trial. Father testified that he has not reoffended, and he has no criminal convictions as an adult. The petition, adjudication, and disposition from Father's juvenile case were not offered at trial. See H.S., 741 S.W.3d at 23. Further, it is undisputed that Father has accepted responsibility for his actions and regrets his past conduct.

Father completed the Pegasus sexual offender rehabilitative program, which the Department admitted was successful for others. The only “service” the Department requested of Father pertained to his prior, isolated act of sexual misconduct and required that he comply with his sex offender registration requirements, which he did, and that he avoid committing other criminal acts, which he also did. And as we have said, the Department was aware of Father's sex offender status from the inception of the case but still placed R.N. on the monitored return. However, R.N. was not removed from the monitored return because of any sexual abuse concerns.

The only evidence a factfinder might have considered in evaluating Father's sex offender status in the context of whether a continuing danger presently existed was the allegation that Father once showered with R.N. before she was removed, which he denied, and the sexual abuse allegation that the Department investigated following an unsupervised visit, which it later ruled out. Assuming the jury found the evidence of the shower incident to be credible, there was no evidence presented that Father did anything other than hold R.N. Any inference that he did more would be purely speculative. See Z.M., 2026 WL 2523488, at *12.

Importantly, we have found no statute or appellate court decision that states that a parent who is a registered sex offender is, per se, considered to be a continuing danger to their child. However, the Family Code provides that in some instances it is permissible, although not mandatory, to find that aggravating circumstances exist when a parent is a registered sex offender under any state or federal law, and such a finding would dispense with the requirement to prove the “reasonable efforts” reunification issue. See FAM. §§ 161.001(f), 262.2015(a), (b)(6). Thus, if the Department believed that Father's limited sexual abuse history was significant enough to constitute a continuing danger to R.N. such that the requirement to make reasonable efforts to return the child should be waived, it could have sought a finding of aggravated circumstances. See id. § 262.2015(a). However, it did not.

In our factual sufficiency analysis, we consider whether the disputed evidence is so significant that a reasonable factfinder could not have formed a firm belief or conviction based on that evidence. See J.F.C., 96 S.W.3d at 266. Here, there was significant and substantial evidence that disputed the finding that a continuing danger remained in the parents' home that prevented the return of R.N. to them. Therefore, we conclude that the evidence controverting any continuing danger purportedly caused by Father's prior sexual misconduct is so significant that a reasonable factfinder could not rely on that conduct to form a firm belief or conviction that a continuing danger existed.

Another potential basis for the jury's finding of a continuing danger was that the parents' home environment was unsafe when trial commenced. Substantial evidence disputes this finding. For instance, it is undisputed that the conditions of the parents' home when the monitored return ended would not have caused the Department to remove a child that was not already in the conservatorship of the Department. Further, no evidence was presented that R.N. was harmed by the conditions of the parents' home. The parents maintained a stable home that was clean at the time of trial, as depicted by the photographs of their home that were admitted and published to the jury. Both parents had stable employment, and Z.N., a registered sex offender, no longer resided with them. The Department also told the parents that it was their decision to allow R.N.'s paternal grandmother and Z.N. to be around R.N. Despite this, the Department presented no evidence that R.N. was endangered by any contact, if any, that R.N. had with them.

While the evidence shows that the parents at times had an unsafe and unstable home environment, by the time that trial commenced the parents had a stable home and the Department even acknowledged that the parents' home was “a lot better than it ha[d] been throughout this case.” Therefore, we conclude that the disputed evidence that controverts that a continuing danger was caused by the parents' home environment is so substantial and significant that a reasonable factfinder could not rely on the parents' earlier unsafe home environment to form a firm belief or conviction that a continuing danger presently existed in their home to prevent the child's return to them.

Finally, the concern that the parents' inability to properly feed and provide for R.N.'s future needs was another basis relied upon by the Department to establish a continuing danger. The evidence that controverted such a finding included that the parents at times only struggled to properly feed R.N. when she was bottle feeding; however, she is now old enough to eat solid food. The Department also reported that the parents successfully fed R.N. solid food. Thus, if the parents endangered R.N. by at times bottle-feeding her incorrectly as an infant, the remoteness of that conduct and the ability of R.N. to now eat solid food gives little weight to any inference that the parents' past conduct creates a continuing danger.

There was speculation as to why R.N. was hungry and immediately gained weight after the monitored return ended, but the parents provided a reasonable explanation that R.N. was about to eat lunch when she was removed. No medical evidence was presented that explained why R.N. gained weight in the days that followed. In fact, Dr. Morris was left to “imagine” and “wonder” about how she was fed during the monitored return, but clear and convincing evidence requires more than an expert's imagination and suspicion. See Z.M., 2026 WL 2523488, at *12. The Department conceded that R.N. struggled to gain weight off and on throughout the pendency of the case, irrespective of who was caring for her at the time. Dr. DeGraw noted that R.N. hit her lowest weight percentile after R.N. was removed from the monitored return and was no longer in the parents' care. Further, Father has the same genetic condition as R.N. and has always been small.

For R.N.'s future needs, the parents acquired a vehicle and could therefore take R.N. to her medical appointments. Father has medical insurance available for R.N. The parents also demonstrated their ability to address R.N.'s medical needs when they researched which medical providers could provide appropriate care for her and arranged, during the monitored return, for a gastroenterologist to assess R.N.'s condition.

As with our other conclusions stated above, we conclude that the disputed evidence that controverts that any continuing danger was caused by the parents' inability to properly feed and provide for R.N.'s future needs is so significant that a reasonable factfinder could not rely on that evidence to form a firm belief or conviction that a continuing danger existed.

Based on this record, viewing the evidence in the light most favorable to the jury's findings, and giving deference to these findings, we conclude that a reasonable factfinder could have formed a firm belief or conviction that a continuing danger existed that prevented R.N.'s return to the parents when the trial on the merits commenced. However, when we weigh the disputed evidence that is contrary to the jury's findings against the evidence that favors it, we hold that a reasonable factfinder could not have formed the same firm belief or conviction, especially when evaluated against the parents' recent history. Accordingly, we conclude that the evidence of the existence of a continuing danger that prevented the return of R.N. to the parents is legally sufficient but not factually sufficient to support the jury's findings on that issue.

For the reasons we have discussed, we sustain the parents' second issue, in part, as to the factual sufficiency of evidence to support the jury's findings under Section 161.001(f). Because affirmative findings under Section 161.001(f) are required to terminate one's parental rights, we need not consider whether sufficient evidence supports the jury's endangerment and best interest findings.⁵ See TEX. R. APP. P. 47.1; FAM. §§ 161.001(b)(1)(D), (E), (b)(2), (f); see also H.S., 741 S.W.3d at 23.

V. Conservatorship

Here, the parents did not ask the jury to make a conservatorship determination because they failed to request the submission of the necessary conservatorship questions in the court's charge. Therefore, the trial court was bound by the jury's termination findings when it ruled on the issue of sole managing conservatorship. However, because we have concluded, based on the record before us, that clear and convincing evidence does not support the termination of each parent's parental rights, each parent's pre-termination status should be reinstated, as should the Department's status as R.N.'s temporary managing conservator. See In re F.E.N., 579 S.W.3d 74, 76–77 (Tex. 2019) (remand was necessary when the record did not support termination and was not adequately developed as to conservatorship); In re D.C., No. 05-22-01223-CV, 2023 WL 3243483, at *5 (Tex. App.—Dallas May 4, 2023, no pet.) (mem. op.).

Because we have sustained the parents' second issue in part and it is dispositive of this appeal, we need not address the remaining issues raised by them. See TEX. R. APP. P. 47.1; T.R.C., 2026 WL 1953219, at *33.

VI. This Court's Ruling

We reverse the trial court's final order, and we remand this cause in its entirety to the trial court for a new trial on all issues. In doing so, we note that “[w]hen an appellate court remands a cause, the effect is to remand the cause for a new trial on all issues of fact, and the case is reopened in its entirety.” See Kinder Morgan Prod. Co., LLC v. Scurry Cnty. Appraisal Dist., 637 S.W.3d 893, 919 (Tex. App.—Eastland 2021, pet. denied) (quoting Graham Sav. & Loan Ass'n, F.A. v. Blair, 986 S.W.2d 727, 729 (Tex. App.—Eastland 1999, no pet.)); see also Eagle Supply & Mfg. L.P. v. Landmark Am. Ins. Co., 630 S.W.3d 342, 353 (Tex. App.—Eastland 2021, pet. denied).

We also vacate the portion of the trial court's final order that appointed the Department as permanent managing conservator of R.N., and we reinstate the Department's appointment as temporary managing conservator of R.N. pending further proceedings on remand. F.E.N., 579 S.W.3d at 77.

Any proceedings on remand must commence within 180 days of this court's mandate. See TEX. R. APP. P. 28.4(c).

FOOTNOTES

1.   To protect the identities of the child and the child's family members, we use pseudonyms or initials to refer to them when appropriate. See TEX. R. APP. P. 9.8(b).

2.   “Family-based safety services are protective services provided to a family whose children are not in the conservatorship of the Department.” 40 TEX. ADMIN. CODE pt. 19 ch. 700 subch. G div. 2 § 710 (2021). The Department's Child Protective Services Division provides family-based safety services to families and children “to: (1) protect the children from abuse and neglect; (2) help the family reduce the risk of future abuse or neglect; and (3) prevent the removal of the children from their home.” Id.

3.   H.S. did not involve Section 161.001(f) because this subsection was not in effect at the time the termination suit in that case was filed. See H.S., 741 S.W.3d at 11. The legislature added subsection (f) to Section 161.001, effective September 1, 2023. Act of May 25, 2023, 88th Leg., R.S., ch. 675, §§ 1, 7, 2023 Tex. Gen. Laws 1644–45 (codified at FAM. § 161.001(f)). This change in the law only applies to suits affecting the parent-child relationship that are filed on or after the effective date of this statutory amendment. Id. §§ 7–8.

4.   Even though the Department made some of its typical and customary reunification efforts, those efforts, without more, are insufficient when they lead to “cognitive dissonance” and “independent problems related to due process.” See H.S., 741 S.W.3d at 21.

5.   Because we are reversing the trial court's termination order and remanding this cause to it for a new trial as to all issues, which includes the endangerment findings, the due process and collateral consequence concerns that exist when an endangerment finding under Section 161.001(b)(1)(D) or (E) is affirmed on appeal are not present here. See N.G., 577 S.W.3d 230, 234–35 (Tex. 2019) (When a parent has challenged a finding under Section 161.001(b)(1)(D) or (E), an appellate court's denial to review those findings “eliminates the parent's only chance for review of a finding that will be binding as to parental rights to other children.” (emphasis added)). Thus, we need not reach the sufficiency of those findings. Id.

W. STACY TROTTER JUSTICE