IN THE INTEREST OF CHILD v. << (2026)

OPINION

The Texas Supreme Court has recognized that terminating parental rights under subsection (D) or (E) carries significant collateral consequences: either finding may later serve as an independent basis for terminating a parent's rights to another child. See In re N.G., 577 S.W.3d 230, 234, 237 (Tex. 2019) (per curiam); TEX. FAM. CODE § 161.001(b)(1)(M). This case illustrates those consequences.

Appellant, T.H., appeals from the trial court's order terminating her parental rights to her son, A.M.¹ One of the predicate grounds relied on by the Department of Family and Protective Services was section 161.001(b)(1)(M). Subsection (M) permits termination if a parent has had her parental rights terminated to another child based on a finding under subsection (D) or (E).

In a previous case involving another child, D.M., the trial court terminated Mother's parental rights under subsections (D), (E), (L), and (O). This Court affirmed the termination order. See In re D.M., No. 07-25-00235-CV, 2025 Tex. App. LEXIS 8255, at *7 (Tex. App.—Amarillo Oct. 27, 2025, no pet.) (mem. op.). Because subsections (D) and (E) were not specifically challenged on appeal, this Court held it was bound by the trial court's findings of those predicate grounds. In re S.L., 421 S.W.3d 34, 37 (Tex. App.—Waco 2013, no pet.).

Those unchallenged findings now have the collateral consequence contemplated by subsection (M). Mother again faces termination, this time as to A.M., based in part on the (D) and (E) findings entered in the earlier proceeding. By two issues, she maintains (1) the evidence is legally and factually insufficient to support termination under section 161.001(b)(1)(L)(ix) and (2) termination under section 161.001(b)(1)(M) violated her due process rights under the United States and Texas Constitutions. We affirm.

BACKGROUND

Mother pleaded guilty to causing injuries to D.M., A.M.'s older sibling, in exchange for four years' deferred adjudication community supervision beginning November 22, 2024. Her parental rights to D.M. were terminated in 2025, and, as noted above, her appeal from that order was unsuccessful.

The Department later sought removal of A.M. based on concerns about Mother's untreated mental health issues and her living arrangements. Mother lived with her boyfriend, two other adults, and two older children. According to the Department, several members of the household had CPS or criminal histories. Mother considered those histories “none of [her] business” and testified she did not “see any issues with them being around [her] child.” She also acknowledged that neither her boyfriend nor the other adults in the home would cooperate with the Department.

Of particular concern was Mother's boyfriend. He had been arrested and was under indictment for sexual assault of a child.² Mother testified that she and her roommates had attempted to discuss the allegation with him, but he refused. Asked whether she nevertheless intended to remain in the relationship, Mother responded, “[m]ore than likely, yes.”

Mother also acknowledged her guilty plea for injuring D.M. The trial court admitted a certified copy of the prior termination order and a copy of the Order of Deferred Adjudication.

Other evidence reflected progress by Mother during the case. Her drug tests were consistently negative, she maintained stable employment, and she had lived in the same home for more than a year. The caseworker considered the physical condition of the home appropriate. Mother maintained communication with the caseworker, sought counseling, completed a TPC evaluation, and participated in services.

The Department's concern, however, was not the physical condition of Mother's home but her inability to protect A.M. The caseworker emphasized that A.M. is non-verbal and unable to communicate inappropriate conduct. Mother believed he would nevertheless find a way to alert her, explaining that she had communicated well with D.M. when D.M. was also non-verbal. The caseworker identified Mother's continued relationship with her boyfriend and the histories of the other household members as the Department's primary safety concerns.

At the time of the final hearing, A.M. had lived with his foster mother, a registered nurse, for five months. His older sister, D.M., lived in the same home. The foster mother, who was in the process of adopting D.M., planned to adopt A.M. as well if Mother's parental rights were terminated. She described the siblings as bonded and their relationship as “sweet.”

A.M. also had significant medical and developmental needs. He suffers from dysphagia, a feeding disorder that makes swallowing liquids difficult and presents a risk of pneumonia. He was receiving feeding therapy and being evaluated for sleep apnea, autism, and intellectual disabilities. His foster mother was addressing those needs. She also testified that Mother's weekly virtual visits with A.M. were “going pretty well,” although Mother missed several visits after confirming she would participate.

At the close of the evidence, the trial court asked the ad litem for her recommendation. She observed that Mother's behavior and approach to parenting had not materially changed since the prior termination and that, despite a year of involvement by the Department, Mother's boyfriend and the other adults in the home had not cooperated in addressing the Department's safety concerns. The ad litem recommended termination as being in A.M.'s best interest.

APPLICABLE LAW

The Texas Family Code permits a court to terminate the relationship between a parent and a child if the Department establishes at least one of the predicate grounds under section 161.001(b)(1) of the Code and that termination of that relationship is in the best interest of the child. See § 161.001(b)(1), (2). See also In re R.J.G., 681 S.W.3d 370, 377 (Tex. 2023).

ANALYSIS

We begin with Mother's second issue, in which she contends termination under subsection (M) violated her constitutional rights. She does not challenge the sufficiency of the evidence supporting subsection (M). The Department responds that Mother failed to preserve her constitutional claim for appellate review. We agree.

Mother concedes she did not raise a constitutional challenge in the trial court. She nevertheless argues the following factors overcome the presumption that error-preservation rules comport with due process: (1) the private interest affected by the proceeding or official action; (2) the countervailing governmental interest supporting use of the challenged proceeding; and (3) the risk of an erroneous deprivation of that interest due to the procedure used. In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003).

We presume both a statute's constitutionality and that rules governing preservation of error in civil cases comport with due process. Whitworth v. Bynum, 699 S.W.2d 194, 197 (Tex. 1985); Lassiter v. Dep't of Social Services, 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). Those preservation rules apply with particular force in termination proceedings: “adhering to our preservation rules isn't a mere technical nicety, the interests at stake are too important to relax rules that serve a critical purpose.” In re L.M.I., 119 S.W.3d 707, 708 (Tex. 2003). “[A]ppellate review of potentially reversible error never presented to a trial court would undermine the Legislature's dual intent to ensure finality in these cases and expedite their resolution.” Id. (citing In re B.L.D., 113 S.W.3d at 353). Because Mother did not present her constitutional challenge to the trial court, she failed to preserve it for appellate review.

Nor does Mother challenge the sufficiency of the evidence supporting the trial court's subsection (M) finding. We therefore are bound by that finding. The Department satisfied its burden by introducing a certified copy of the prior termination order. See In re H.H., 622 S.W.3d 460, 469 (Tex. App.—Texarkana Sept. 25, 2020, no pet.); see also In re C.M.J., 573 S.W.3d 404, 412 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (finding evidence of a prior decree reflecting the requisite findings under subsection (D) or (E) satisfies the Department's burden under subsection (M) as a matter of law with no evidence weighing required). We overrule issue two. Because only one predicate ground is required to support termination, we need not address Mother's first issue challenging subsection (L)(ix).

CONCLUSION

The trial court's Order of Termination severing the relationship between Mother and A.M. is affirmed.

FOOTNOTES

1.   To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. CODE § 109.002(d). See also TEX. R. APP. P. 9.8(b). Father voluntarily relinquished his rights and is not a party to this appeal.

2.   A copy of the indictment filed December 16, 2025, was admitted into evidence. It recites Mother's boyfriend “did then and there intentionally or knowingly cause the penetration of the sexual organ of L.M.S., a child who was then and there younger than 17 years of age, by defendant's sexual organ.”

Alex Yarbrough Justice