In the Interest of D.D.J.-C. and N.M.C.-J., Children v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00245-CV

IN THE INTEREST OF D.D.J.-C. AND N.M.C.-J., CHILDREN

On Appeal from the 287th Judicial District Court
Parmer County, Texas
Trial Court No. 11728, Honorable Kathryn Gurley, Presiding

February 4, 2025
DISSENTING OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

“Justice is not blind to common sense, nor should it be deaf to reality.” Today, the

majority minimizes the undeniable dangers of a household where sixteen complete

strangers—unvetted, undocumented, and entirely unknown—were harbored under one

roof. The majority insists that the Department failed to prove a dangerous environment

by clear and convincing evidence. I disagree.

A home is meant to be a refuge, a place of safety for a child. Instead, this mother’s

home became a hub for instability, secrecy, and ultimately, police intervention. When law

enforcement finds cause to raid a residence, it is not because of mere speculation—it is
because danger lurks behind its doors. The presence of these sixteen complete

strangers—combined with the chaos and legal jeopardy that followed—created far more

than a questionable living situation. It created an environment where risk was not just

possible, but inevitable. Because I believe the evidence overwhelmingly establishes a

dangerous environment, I respectfully dissent.

The crux of the majority’s opinion ignores the practical reality of parenting and

common sense. If a child asks to spend the night at a friend’s house and tells their parent

that the mother will be present—along with sixteen complete strangers—what responsible

parent would allow it? None. Because the mere presence of unknown individuals—

especially in large numbers and without any vetting—creates an inherently unpredictable

and potentially dangerous environment. The majority dismisses this risk as speculative,

but their reluctance to acknowledge the obvious defies both logic and parental instinct. If

no reasonable parent would willingly place their child in that situation for a single night,

how can the majority justify a child living in such conditions indefinitely?

The majority has also now muddied the waters with regard to section

161.001(b)(1)(Q) with simply one sentence in its opinion: “Consequently, we see no

evidence to support a finding that Mother was confined or imprisoned for the requisite

two-year period ending on July 19, 2024.” Without this one sentence in the opinion, I

would concur in the well drafted analysis of issue two. However, by including it, the

majority now creates an element of the statute that is simply not present in the statutory

language.

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The majority errs in its interpretation of section 161.001(b)(1)(Q) by misapplying

fundamental rules of statutory construction. Specifically, the majority ignores the last

antecedent rule, which dictates that a qualifying phrase—such as the two-year modifier—

applies only to the closest preceding noun or phrase unless a comma clearly extends its

reach. Here, the statute states that termination is warranted when a parent has

“knowingly engaged in criminal conduct that has resulted in the parent’s conviction of an

offense; and confinement or imprisonment and inability to care for the child for not less

than two years from the date of filing the petition.” Properly read, the two-year

requirement applies solely to the inability to care for the child, not to the confinement or

imprisonment itself. Yet, the majority improperly extends this limitation, requiring proof

that the parent’s incarceration will last two years—an interpretation unsupported by the

statutory text.

For these reasons, I respectfully dissent.

ANALYSIS

ISSUE ONE—EVIDENCE SUPPORTING TERMINATION UNDER SUBSECTION (D)

Where the majority and I differ in the analysis is whether the evidence of the

presence of complete strangers in the home created an endangering environment under

subsection (D). Termination under (D) requires that the child’s environment is a source

of endangerment, and the parent’s conduct may create that dangerous environment. In

the Interest of C.E., 687 S.W.3d 304, 310 (Tex. 2024) (citations omitted). Proof that a

parent specifically caused an injury is not necessary. Id. A finding of endangerment is
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supported “if the evidence . . . shows a course of conduct which has the effect of

endangering the physical or emotional well-being of the child.” Id. (quoting Tex. Dep’t of

Hum. Servs. v. Boyd, 727 S.W.2d 531, 534 (Tex. 1987)). Therefore, “endangerment

encompasses a larger array of conduct that exposes a child to loss or injury or jeopardizes

the child.” In the Interest of R.R.A., 687 S.W.3d 269, 277 (Tex. 2024) (internal quotations,

brackets, and citations omitted).

The case law and instruction from our high court is clear: we do not need evidence

of actual injury to uphold a termination under subsection (D), only evidence the

environmental conditions had a substantial potential to “[expose] the child to loss or injury

or jeopardizes the child.” Id. The majority points to the care provided by Mother, that she

never left them unattended and she separated herself from the complete strangers in the

house. Despite the laudable care Mother may have ensured for her children, the evidence

included Mother’s guilty plea to the crime of harboring illegal aliens under federal law—a

class E felony. 8 U.S.C.S. § 1324(a)(1)(A)(iii), (a)(1)(B)(ii).1

By pleading guilty to a felony, Mother admitted her “knowing [or] reckless

disregard” of the legal status of the persons who were entering her home, however

transient or temporary they may be. She admitted by her felony guilty plea she knew the

persons who entered her home were there in violation of the law, and a high risk existed

that at any moment these persons would be arrested in her home with her children

present, which is exactly what happened. By giving them shelter in her home, Mother

1 It is worth emphasizing that Mother’s crime—harboring illegal aliens—is classified as a class E

felony under federal law. See 18 U.S.C. § 3559(a)(5). The majority downplays the gravity of the situation
in the home, yet the federal government has deemed this offense serious enough to warrant felony status,
rather than a mere misdemeanor. This underscores the inherent risks and legal consequences associated
with Mother’s conduct—risks the majority improperly minimizes.
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herself became engaged in a criminal act, which ran the risk of her own arrest in front of

her children, which also happened. The Texas Family Code does not require that

endangering “conduct be directed at the child” or that the child “actually suffer[] injury.” In

the Interest of C.E., 687 S.W.3d at 310 (quoting In re J.W., 645 S.W.3d 726, 748 (Tex.

2022). Instead, termination under (D) requires that the child’s environment is a source of

endangerment, and the parent’s conduct may create that dangerous environment. Id.

(citing In re W.J.H., 111 S.W.3d 707, 715 (Tex. App.—Fort Worth 2003, pet. denied))

(emphasis added). Further, intentional criminal activity that exposes a parent to

incarceration is conduct that endangers the physical and emotional well-being of a child

because of the resulting abandonment of the child. In the Interest of K.L., No. 07-16-

00236-CV, 2016 Tex. App. LEXIS 11989, at *8 (Tex. App.—Amarillo Nov. 4, 2016, no

pet.) (mem. op.) (citing In re V.V., 349 S.W.3d 548, 554 (Tex. App.—Houston [1st Dist.]

2010, pet. denied)); Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)

(“[I]mprisonment is certainly a factor to be considered . . . on the issue of endangerment).2

Because of the potential for a raid by law enforcement, the children were at

substantial risk of abandonment and thereby could have suffered emotional and physical

injury after Mother’s arrest. This risk existed at all times Mother was engaged in the

activity of harboring persons without legal status, and she admitted to this risk both by her

guilty plea and when she testified at the final hearing that she harbored complete

strangers in her home. She also admitted at the hearing she did not know the people

2 See also In re J.F.-G., 627 S.W.3d 304, 315–17 (Tex. 2021) (“[M]ultiple criminal episodes of

escalating seriousness—together with the duration and consequences of the incarceration, is relevant
when the resulting abandonment presents a risk . . . to a child’s physical or emotional well-being.”); In the
Interest of R.R.A., 687 S.W.3d at 281 (father’s drug use, homelessness, employment instability, and near-
complete abandonment of his children were sufficient for findings under subsections (D) and (E)).
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who were in her home. There is always a potential for danger when it comes to strangers.

In the Interest of R.S., 2015 Tex. App. LEXIS 10253, at *11 (Tex. App.—Fort Worth Oct.

1, 2015, no pet.) (mem. op.) (citations omitted). See also In re J.A.S., 2012 Tex. App.

LEXIS 8087, at *6 (Tex. App.—Amarillo Sept. 25, 2012, no pet.) (mem. op.) (considering

placement of children in the care of strangers as basis for termination).

The word “stranger” appears a few times in the majority’s analysis. It should be

noted, there are different types of “strangers” and associated risks:

1. Familiar-Strangers (Known Group, Unknown Individuals)
o Example: Inviting your church choir over—you may not know every
member personally, but you know the group as a whole and trust
the organization they are part of.
o Risk Level: Lower risk because the people are indirectly vetted
through a trusted institution or group. If an issue arises, there is
accountability within the organization.
2. Acquaintance-Strangers (Introduced but not truly known)
o Example: A coworker bringing a friend to your house. You know
your coworker but have no knowledge of the friend’s background or
character.
o Risk Level: Moderate risk—while you have a connection to the
person, you still lack full knowledge of their intentions, history, or
behavior.
3. Complete Strangers (Unknown People, No Connection)
o Example: Allowing people into your home whom you’ve never met,
have no connection to, and know nothing about (e.g., harboring
illegal aliens with no background knowledge of who they are or why
they are there).
o Risk Level: High risk—there is zero vetting, no accountability, and
no way to assess potential dangers. These individuals could have
criminal backgrounds, dangerous intentions, or pose a risk to the
safety of those in the home.

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The majority declines to find endangerment from the presence of sixteen complete

strangers in Mother’s home because she did not explicitly leave her children in their care.

Instead, the majority suggests that, had the Department shown evidence of violence, drug

use, or other dangerous behavior by the complete strangers, or if Mother had entrusted

them with her children’s care, the outcome might be different. This reasoning is

fundamentally flawed because it ignores the nature of the complete strangers in the home

and overlooks the very real dangers of exposing children to unknown, unvetted individuals

engaged in criminal conduct.

Unlike a situation where a parent has acquaintances or distant relatives living in

the home, Mother had no knowledge of who these individuals were, where they came

from, or what risks they posed. These were not merely unfamiliar faces in a known

group—they were complete strangers to Mother herself, breaking the law simply by being

there. Mother admitted that she had no idea what level of risk these individuals posed to

her children, including whether they were engaged in additional criminal activity that could

endanger them. The majority’s conclusion rests on the assumption that because no

specific acts of harm were proven, the situation was not dangerous. This ignores the

inherent risk of exposing children to unknown, unvetted individuals who had already

demonstrated a disregard for the law.

If these complete strangers had been inclined to harm the children, nothing would

have prevented them from doing so. Mother’s closed door and mere presence as one

adult offered no meaningful protection from sixteen unknown individuals living under the

same roof. The law does not require us to wait for a tragedy to occur before recognizing

an obviously dangerous environment. The presence of so many complete strangers,
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coupled with ongoing criminal activity, created an endangering environment that

threatened the children’s health and safety.

I acknowledge that the mere presence of strangers alone may not always be

enough to support termination under subsection (D). But when viewed in the context of

ongoing criminal conduct, the totality of the circumstances created an undeniable risk to

the children. This aligns with the Texas Supreme Court’s analysis in In the Interest of

R.R.A., which recognized endangerment can be inferred from a course of conduct that

presents substantial risks to a child’s physical or emotional well-being. 687 S.W.3d at

277.

Here, Mother’s decision to harbor complete strangers, engage in unlawful activity,

and expose her children to unknown risks created precisely the type of endangering

environment the law seeks to prevent. A reasonable factfinder could form a firm

conviction that Mother knowingly placed her children in conditions that threatened their

safety. I would overrule Mother’s first issue and affirm the trial court’s termination order.

ISSUE TWO—EVIDENCE SUPPORTING TERMINATION UNDER SUBSECTION Q

While I concur in the majority’s result—the evidence is insufficient to support the

trial court’s finding—I write separately because I believe the majority has now muddied

the waters with regard to section 161.001(b)(1)(Q). Subsection (Q) permits termination if

the parent is found to have:

. . . knowingly engaged in criminal conduct that has resulted in the parent’s:

(i) conviction of an offense; and

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(ii) confinement or imprisonment and inability to care for the child
for not less than two years from the date of filing the petition[.]

TEX. FAM. CODE ANN. § 161.001(b)(1)(Q).

Where the majority and I differ in our analysis, albeit reaching the same conclusion,

is the application of the words “for not less than two years.” The majority incorrectly

applies the phrase “for two years” to the words “confinement or imprisonment” as part of

its analysis, quoting the burden shifting scheme in our opinion from In re Caballero to

suggest the Department need only prove the parent will be confined or incarcerated for

two years in order to meet its burden under subsection (Q). 53 S.W.3d 391, 397 (Tex.

App.—Amarillo 2001, pet. denied) (op. on reh’g).

First, despite the language in our prior precedent, there is no burden-shifting

language in the statute, and no basis for imposing such a scheme. Second, the majority’s

interpretation ignores the last-antecedent doctrine, which provides “a qualifying phrase in

[a statute] must be confined to the words and phrases immediately preceding it to which

it may, without impairing the meaning of the sentence, be applied.” Spradlin v. Jim Walter

Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000); accord In the Interest of C.J.N.-S, 540

S.W.3d 589, 592 (Tex. 2018) (determining phrase “a parent of the child or another person

having physical custody or guardianship of the child under a court order” gives standing

to parents regardless of custody under last-antecedent doctrine under TEX. FAM. CODE

Ann. § 154.303).3 Further, “modifiers are intended to refer to the words closest to them

3 Cf. City of Corsicana v. Willman, 147 Tex. 377, 379, 216 S.W.2d 175, 176 (1949) (“[B]ut the [last-

antecedent] rule is neither controlling nor inflexible. It may be rebutted by the circumstances. It should not
be applied without regard to the meaning of the language read as a whole. It is not applicable when a
further extension is clearly required by the intent and meaning of the context.”).
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in [a] sentence.” Mikob Props. v. Joachim, 468 S.W.3d 587, 596 (Tex. App.—Dallas 2015,

pet. denied) (quoting Samano v. Sun Oil. Co., 621 S.W.2d 580, 581-82 (Tex. 1981)). The

qualifying clause applies only to the closest preceding noun or phrase unless a comma

clearly extends its reach, as “a ‘properly placed comma’ can ‘cancel’ the last-antecedent

canon.” TotalEnergies Petrochemicals & Refin. USA, Inc. v. Kinder Morgan Petcoke, LP,

658 S.W.3d 647, 668 n.39 (Tex. App.—Houston [14th Dist.] 2022, pet. denied) (quoting

Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 161

(2012)).

Here, the statute states that termination is warranted when a parent has “knowingly

engaged in criminal conduct that has resulted in the parent’s conviction of an offense;

and confinement or imprisonment and inability to care for the child for not less than two

years from the date of filing the petition.” Properly read, the two-year requirement applies

solely to the inability to care for the child, not to the confinement or imprisonment itself.

This interpretation also does not impair the meaning of the sentence, and it reasonably

achieves its aims, which is to permit the Department to intervene where, as a result of

incarceration, a parent is unable to care for a child for two years or more. See In the

Interest of A.V., 113 S.W.3d 355, 360 (Tex. 2003). Our prior decision, In re Caballero,

also follows this logic, as the parent in that case had been sentenced to serve more than

two years in prison and therefore it was reasonably assured he would not be able to care

for his child. Yet, the majority improperly extends this limitation, requiring proof that the

parent’s incarceration will last two years—an interpretation unsupported by the statutory

text. Rather, the Department’s burden is to show the parent is not only convicted of an

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offense and confined or imprisoned, but that she will be unable to care for her child for at

least two years.

Under the majority’s flawed analysis of section 161.001(b)(1)(Q), a parent who is

released from confinement after six months but placed in a halfway house or inpatient

treatment facility—still unable to care for their child—would evade termination simply

because they were not physically imprisoned for two years. This interpretation ignores

the statute’s focus on the parent’s actual ability to provide care, not just the duration of

incarceration. The majority’s reasoning creates an illogical loophole where a parent who

remains functionally incapable of caring for their child due to court-ordered restrictions or

institutional placement would nevertheless avoid termination, despite clear statutory

intent to protect children from prolonged instability.

Even if I set aside the statutory language issues discussed above and analyze this

case under In re Caballero, as the majority does, the burden-shifting scheme is not

triggered because the Department failed to meet its initial burden. The burden-shifting

scheme in In re Caballero is only triggered after the Department establishes the parent’s

“criminal conduct resulted in their incarceration4 for more than two years.” In re Caballero,

53 S.W.3d at 397. Here, the Department did not prove that Mother had been confined or

imprisoned for more than two years, meaning the burden never shifted to Mother to show

she could provide care.

4 It should be noted the word “incarceration” does not appear in the statute. Neither does the

phrase “more than two years.”
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Following the statutory language and a simpler approach, I believe the Department

failed to demonstrate Mother would be unable to care for her children for not less than

two years from the filing of its petition. I agree with the portion of the majority’s conclusion

Mother presented sufficient evidence of her ability to care for her children in Guatemala,

and, more importantly, the Department presented no evidence she would be unable to

care for her children for the required two-year period. Mother’s release from incarceration

made it possible to at least arrange for her children’s care and provide care herself upon

deportation. Therefore, I concur with the conclusion of the majority’s opinion on issue two,

but not the analysis. I dissent with respect to any opinion that requires a moving party

under subsection (Q) to have to establish confinement or imprisonment must be at least

two years.

CONCLUSION

Only one statutory ground is needed to support termination when there is also a

finding that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d 888, 894–

95 (Tex. App.—Amarillo 2009, pet. denied). Because I found sufficient evidence to

uphold the trial court’s finding under subsection (D), I would affirm the trial court’s

judgment.

The majority concludes the evidence is legally and factually insufficient to support

termination under either subsection (D) or (Q) but simply reverses the termination order.

The majority notes Mother’s failure to challenge appointment of the Department as the

children’s permanent managing conservator. See In re J.A.J., 243 S.W.3d 611, 716 (Tex.

2007).

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Rule 43.2 of the Texas Rules of Appellate Procedure describes the types of

judgments this Court may render. See TEX. R. APP. P. 43.2. In her brief, Appellant prays

for reversal of the termination order and a remand of the cause for further consideration.5

Thus, rendition is precluded. However, pursuant to Rule 43.2(d), the majority should

reverse the termination order and remand the cause for further proceedings to determine

other issues such as whether Mother is entitled to visitation because the majority’s opinion

leaves her parental rights intact.

Alex Yarbrough
Justice

5 We are limited to the relief sought by the parties. See Stevens v. National Educ. Ctrs. Inc., 11

S.W.3d 185, 186 (Tex.2000).
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