IN THE INTEREST OF AND v. << (2025)

CONCURRING OPINION

I concur in the judgment because I would arrive at that result by reversing on all grounds for termination without reaching the best interest analysis. The danger presented by this case is not that the Department sought to terminate on flimsy facts. The danger is that the State did not present the evidence it had—treating termination as a foregone conclusion.

Our role, as a reviewing court, is to review the record to determine whether there was sufficient evidence to support the trial court's findings. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). It is not our duty to determine whether abuse or neglect occurred here. It is the State's duty to investigate and prove the grounds for termination, if present. It is the trial court's duty to hold the State to its burden of proof at trial. TEX. FAM. CODE §§ 101.007 (clear and convincing evidence); 161.001(b)(1)(D) (providing trial court may order termination of the parent-child relationship if the court finds by clear and convincing evidence parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child).

It did not do so.

But, of even greater concern is that, had the Department presented at trial the facts set forth in its Affidavit for Emergency Removal, the decision in this case may very well have been different. It would be easy for us to ignore our standard of review and affirm based on information outside of the trial record. In fact, it would feel much better than the decision here, which leaves the children in foster care indefinitely unless Mother makes a significant and material change in her life and her ability to care for these children or voluntarily chooses to relinquish her rights. See TEX. FAM. CODE§ 156.101. But affirming despite the State's failure to create the necessary record creates a very dangerous precedent—one that would only further enable a system that seems to have become numb to the import of what is at stake.

We must remember that termination of parental rights is the “death penalty” of civil cases. In re D.T., 625 S.W.3d 62, 69 (Tex. 2021) (quoting In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring)); see, e.g., In re R.J.G., 681 S.W.3d 370, 381 (Tex. 2023) (same). As such, the matter before us should serve as a wake-up call—an opportunity for us all to take a collective breath and re-evaluate what we are doing and why. We are being asked to terminate the parental rights of a mother to five children and to do so on a ground that could be used to terminate her rights to any future born child.See TEX. FAM. CODE§ 161.001(b)(1)(D); In re N.G., 577 S.W.3d 230, 236–37 (Tex. 2019). We are allowing the State to step into a family's home and tear them apart—something we should, as a community, reserve only for those cases in which it is proven to be critical to ensuring the safety and well-being of the children. To ensure the State does not overstep, that it reserves termination for those cases demanding it, we must hold the State to the requirement of creating a record that supports its actions. In this case, that calls for a record that includes facts not admitted at trial but which could have easily been the subject of the caseworker's testimony including:

• Mother's extensive CPS history including numerous investigations relating to her drug use and neglect of the children, during which she failed to engage in offered services;

• Mother's extensive criminal history, including two prior incarcerations (totaling more than three years) in addition to a pending motion to revoke probation;

• A.I.P. told the caseworker that Mother told her to not tell anyone “about the weed”;

• The children's live-in maternal grandmother tested positive for cocaine and marijuana in the weeks following removal of the children and previously had her own children removed by CPS (Mother and maternal aunt);

• The maternal aunt, someone who would take the children when Mother needed her to, lacked stable housing, was living in a hotel room, and admitted to regular marijuana use;

• A nurse who cared for A.I.P. during her hospital stay stated Mother failed to change A.I.P.—then four years old—allowing her to sit in urine while Mother slept (contrary to the caseworker's trial testimony that Mother's interactions with the children were never inappropriate);

• The “abandoned barbeque restaurant” was nothing more than a shed, with a metal roof and blankets covering holes, and with doors left open day and night posing a risk of animals and intruders; and

• Mother refused to provide the location of the children to the Department when asked (contrary to the caseworker's testimony that Mother was at all times cooperative).

Clearly, the Department found this was an open and shut case and handled it accordingly. And, for the trial court—which was probably familiar with the case and with Mother—the evidence was clear and convincing. But the State must remember a reviewing court is not familiar with what has occurred in the case. We have not met Mother. We do not know her history. With few exceptions, we are limited in our review to what was presented and admitted at trial. See In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). And, when that record does not demonstrate grounds for termination, we will act accordingly.

CONCURRING AND DISSENTING OPINION

I concur with section 3 of Justice Meza's opinion, in which she affirms the trial court's judgment that there was sufficient evidence to terminate Mother's parental rights pursuant to Texas Family Code section 161.001(b)(1)(D).¹ See TEX. FAM. CODE § 161.001(b)(1)(D) (providing trial court may order termination if court finds by clear and convincing evidence parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger physical or emotional well-being of child). I also concur with section 5 of Justice Meza's opinion as I conclude the trial court properly exercised its discretion in appointing the Department of Family and Protective Services managing conservator of the children. See TEX. FAM. CODE § 161.207 (“[I]f the court terminates the parent-child relationship with respect to both parents or to the only living parent, the court shall appoint a suitable, competent adult, Department of Family and Protective Services, or a licensed child-placing agency as managing conservator of the child.”).

However, deferring to the trial court's credibility determinations, and to the permissible inferences the trial court could have drawn from the evidence to support its findings, I believe the Department also met its burden and proved by clear and convincing evidence that termination of Mother's parental rights is in the best interest of Mother's children.² TEX. FAM. CODE § 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Because I would affirm the trial court's best interest finding, I respectfully dissent from section 4 of Justice Meza's opinion and would affirm the trial court's judgment terminating Mother's parental rights.

FOOTNOTES

1.   To protect the identity of the minor children, I will refer to appellant as “Mother.” See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8.

2.   See In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (explaining that reviewing court must detail evidence relevant to issue of parental termination when reversing finding based upon insufficient evidence, but need not do so when affirming verdict of termination).