INTEREST OF v. << (2026)

DISSENTING OPINION

The majority affirms the termination of the parental rights of appellants J.S.R. (“Father”) and M.A.C. (“Mother”), the biological parents of A.L.L.N.R. (“Son” born in 2023) and A.R.A.R. (“Daughter” born in 2024) (collectively the “Children”). I concur in the majority's holding that affirms the termination of Mother's parental rights. As for Father, in four issues, he contends that the evidence is legally and factually insufficient to support the trial court's termination order on the three predicate and best interests grounds. Father also contends that the trial court's designation of the Texas Department of Family and Protective Services as the Children's permanent managing conservator is erroneous because it rests on an invalid termination order. The majority overrules Father's issues, and it affirms the termination of his parental rights. I would sustain Father's issues and reverse and remand. Therefore, I respectfully dissent, in part.

I. Endangerment & Endangering Use of Controlled Substances

In Father's first issue, he argues that the evidence is legally and factually insufficient to support the trial court's subsection (E) endangerment by conduct finding. In Father's third issue, he argues that the evidence is legally and factually insufficient to support the trial court's subsection (O) endangering use of controlled substance finding. Father argues that the Department's case regarding subsections (E) and (O) rests mainly on Father's positive drug testing, missed drug tests, incomplete treatment, and presence in Great Grandparents' home when the safety plan was violated. Father emphasizes that there is no evidence Father used drugs in the Children's presence, that the Children suffered from any injuries as a result of Father's drug use, or that the Children were subject to malnutrition, medical neglect, developmental harm, and domestic violence as a result of Father's drug use. Father contends that Crossroads' diagnoses of mild amphetamine use disorder, later, mild alcohol use disorder, moderate cannabis use disorder, and moderate stimulant use disorder do not, alone, qualify as the kind of severe, persistent, child-endangering course of conduct required by subsection (E).

The Department contends that “[u]nder predicate ground (E), ‘endangering conduct’ may include a parent's use of narcotics and its effect on his ability to parent, regardless of whether the conduct is directed towards the child.” (Emphasis added). The Department further contends that “expert opinion testimony” showed Father was thoroughly unable to consistently engage in the treatment recommended to address his substance use. It references our opinion in In re E.J.M., 673 S.W.3d 310, 330 (Tex. App.—San Antonio 2023, no pet.) (en banc), for the proposition, as the Department puts it, that “a parent's knowledge that the mother of their child abused drugs during pregnancy, combined with a failure to intervene, may be treated as endangerment under predicate ground (E).”

The Department's reliance on In re E.J.M. is misplaced. Vanessa Espinosa, an investigator with the Department, testified that Father's “words told [her] he was shocked, but his body language, his facial expression did not show that he was surprised.” The Department references no authority where such a conclusory statement meets the clear and convincing standard. The majority asserts that Father and Mother “both tested positive at the birth of their child.” However, the only evidence the majority could be basing its assertion on is the testimony of Valerie Kelley, a family-based safety services worker with the Department, who testified that “[i]nitially, [Father] wasn't our focal point, but after he tested positive, we included him in services as well.” Daughter was born in September 2024, and the only drug test for Father before Daughter's birth was over a year earlier, on October 25, 2023. Those results were negative. Father's next drug test in the record was on November 27, 2024, two months after Daughter was born, when Father tested positive for amphetamine and methamphetamine. The majority also emphasizes that “all interactions between the parents and the Department occurred with the parents together, they made decisions about treatment together, and all visits with the children were either attended by both parents or neither.” I fail to see how the parents' unified approach to parenting and their interactions with the Department support the majority's conclusion. In re H.S., No. 24-0307, ––– S.W.3d ––––, ––––, 2026 WL 1614496, at *11 (Tex. Jun. 5, 2026) (“The [D]epartment's brief in this Court repeatedly refers to concerns about ‘Mother's and Father's enmeshed relationship.’ Married people typically have ‘enmeshed’ relationships, which is in fact close to the very definition of marriage and what it requires.”). On this record, the Department failed to present legally sufficient evidence that Mother and Father used methamphetamine and marijuana together while Father knew Mother was pregnant with Daughter. Cf. In re E.J.M., 673 S.W.3d at 330 (“At the time they took methamphetamine together, [father] knew [mother] was pregnant with [child.]”).

The Department's singular reliance on the diagnoses of Father's substance use disorders, positive test results, and missed tests to establish that subsection (E) endangerment by conduct and subsection (O) endangering use of controlled substance findings fares no better under recent precedent from the Supreme Court of Texas. In In re K.N., No. 24-0881, ––– S.W.3d ––––, ––––, 2026 WL 1614378, at *14 (Tex. Jun. 5, 2026), the Supreme Court of Texas held that “illegal drug use alone may not be sufficient to show endangerment; rather, a reviewing court should consider additional evidence that a factfinder could reasonably credit that demonstrates that illegal drug use presents a risk to the parent's ability to parent.” Id. (internal citations and quotation marks omitted). The Department wholly failed to present any evidence linking Father's substance use disorders to an inability to parent.

The closest the Department gets is its suggestion that Mother and Father living with Great Grandparents is some evidence that they were unable to provide the Children with a stable home. On this record, the only evidence the Department marshaled was that Mother and Father continually resided with Great Grandparents through the termination proceeding. The Department presented no evidence that Great Grandparents' home was unsafe. Thus, the family continually residing with Great Grandparents throughout the underlying proceeding is a semblance of continuity that cuts against the Department's notion of instability. Moreover, many Texans reside in multi-generational households for any number of reasons.

The Department presented legally insufficient evidence of the subsection (E) and subsection (O) predicate grounds. Therefore, I would sustain Father's first and third issues.

II. Abandonment

In Father's second issue, he argues that the evidence is legally and factually insufficient to support the trial court's subsection (N) constructive abandonment finding.

Subsection 161.001(b)(1)(N) allows a trial court to terminate a parent's rights if the court finds by clear and convincing evidence that the parent constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department for not less than six months, and: (1) the Department has made reasonable efforts to return the child to the parent; (2) the parent has not regularly visited or maintained significant contact with the child; and (3) the parent has demonstrated an inability to provide the child with a safe environment. Tex. Fam. Code Ann. § 161.001(b)(1)(N).

Father and the Department dispute whether Father “regularly visited or maintained significant contact with the” Children. Father emphasizes that he made nineteen of the thirty-one visits with the Children, that even Jackline Arrendondo, a legal caseworker with the Department, acknowledged the visits were “appropriate” and “weren't bad,” and that the missed visits were attributable to an unreliable or vandalized vehicle. In light of this evidence, Father argues that the Department failed to establish by clear and convincing evidence either the regular visit or significant contact element. The Department references our opinion in In re H.R., 87 S.W.3d 691, 699 (Tex. App.—San Antonio 2002, no pet.), wherein we noted that the mother in that termination proceeding “intermittently visited [her child] from February 2001 through May 2001” and then failed to see the child again up through the December 2001 trial. Thus, the mother in In re H.R. did not visit her child for almost seven months.

In this case, Father testified that his vehicle was at times either unreliable or had been vandalized to the point of being inoperable. It was always the Department's burden to prove by clear and convincing evidence the “regularly visited or maintained significant contact” element and that became more pronounced when Father explained that transportation issues caused him to miss visits. Cf. In re V.S.R., No. 12-25-00001-CV, 2025 WL 974090, at *5 (Tex. App.—Tyler Mar. 31, 2025, no pet.) (mem. op.) (“Although we recognize that it is not Father's burden, the record contains no documentary evidence or firsthand evidence for any of Father's reasons for missing visitations.”). The record contains no evidence linking missed visits with periods during which Father had reliable transportation. Accordingly, the evidence on the “regularly visited or maintained significant contact” element is legally insufficient. Therefore, I would sustain Father's second issue.

III. Conservatorship

In Father's fifth issue, he argues that “[w]hen a trial court's termination order is reversed on appeal, the trial court's conservatorship order should also be reconsidered.” Father further argues that “[e]ven if [he] was not yet in a position to be immediately reunited with [the] [C]hildren, the unique circumstances of this case warranted a possession order that granted him possessory conservatorship rights, so that he could have more time to be provided his services and to complete his service plan.” The Department's brief contains no competing argument.

When the Department's petition to terminate parental rights is denied, such as the judgment I would render as to Father, the trial court must “render any order in the best interest of the child.” Tex. Fam. Code Ann. § 161.205. As an appellate court reviewing a matter months later, we are not equipped to know if circumstances of Father or the Children have changed since the trial court made its designation of the Department as the Children's permanent managing conservator; such a determination requires a factfinder. In re A.L.M., 300 S.W.3d 914, 931 (Tex. App.—Texarkana 2009, no pet.). Therefore, I would remand the case to the trial court for the limited purpose of rendering an order consistent with Section 161.205 of the Texas Family Code. See id.; In re A.S., 261 S.W.3d 76, 93 n.19 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).

I would sustain in part Father's fifth issue by reversing the trial court's designation of the Department as the Children's permanent managing conservator. I would overrule the remainder of Father's fifth issue by remanding the case to the trial court for further proceedings pursuant to Section 161.205 of the Texas Family Code.

IV. Conclusion

For the foregoing reasons, I respectfully concur in part and dissent in part.

Dissenting Opinion by: Rebeca C. Martinez, Chief Justice