In the Interest of A.C.P., A.I.P., A.M.P., M.j-r.P. III, and M.C.S., Children

Supreme Court of Texas
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No. 25-0688
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In the Interest of A.C.P., A.I.P., A.M.P., M.J-R.P. III,
and M.C.S., Children

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On Petition for Review from the
Court of Appeals for the Fourth District of Texas
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Statement of JUSTICE YOUNG, with whom Justice Devine and
Justice Sullivan join, respecting the denial of the petition for review.

Every case in which the government invokes the Texas judiciary’s
authority to terminate a parent–child relationship represents a tragedy
for the family involved. This particular case also illustrates a serious
problem for the law: what to do when the government apparently regards
termination as so obviously justified that it fails to create a strong record
of the basis for that result.
The trial court ordered termination of Mother’s parental rights to
her five children. The court of appeals reversed, with each justice on the
panel writing to express markedly divergent reasoning. The justice
writing the lead opinion concluded that the government had established
at least one predicate ground for termination but had failed to develop
a record that could satisfy the demanding showing required by our law
to conclude that termination was in the children’s best interests.
No. 04-24-00653-CV, 2025 WL 900127, at *6, *9 (Tex. App.—San Antonio
Mar. 25, 2025) (Meza, J.). A concurring justice would have held that the
record was too deficient to establish even one predicate ground and would
thus have stopped there. 719 S.W.3d 645, 645 (Tex. App.—San Antonio
2025) (Brissette, J., concurring in the judgment).* A dissenting justice
would have affirmed termination, asserting that the record provided
sufficient factual inferences to justify the trial court’s findings of both a
predicate ground and best interests by clear and convincing evidence. Id.
at 647 (McCray, J., dissenting in part). The en banc court of appeals then
divided 3–3 with one justice not sitting. Another justice (joined by two
others, including the original dissenter) wrote a detailed opinion explaining
why en banc review was warranted and why the panel’s decision was, in
her view, erroneous. 719 S.W.3d 679, 683–90 (Tex. App.—San Antonio
2025) (Rios, J., dissenting from denial of reconsideration en banc).
The tie vote required denial of reconsideration en banc. The
judgment of termination was thus reversed, but the court of appeals upheld
the designation of the Department of Family and Protective Services as the
children’s managing conservator. 2025 WL 900127, at *12. That is where
the case now stands. The children remain protected but not legally cut off
from any relationship with their mother. Not ideal, but perhaps adequate
under the circumstances. Mother will have the opportunity to prove in
future hearings that she should be restored as managing conservator. If
she can make that high showing, then it will turn out to have been

* For whatever reason, the lead opinion is unpublished while the
concurring and dissenting panel opinions and the opinion dissenting from the
denial of reconsideration en banc are published.

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fortunate that the termination was reversed. If she never can, the status
quo currently prevents the children’s adoption (should that opportunity
arise), but it at least ensures their protection.
The Court reasonably denies the department’s petition for review.
The splintered opinions from the court of appeals mean that this case is
unlikely to be one that can serve as precedent in others; the 3–3 vote of
the en banc court signals that the court of appeals itself will be on the
lookout for opportunities to clarify the law when it has a full complement
of justices. But perhaps most important of all, the result in this case
ought to provide the State with the incentive to ensure that no court ever
again sees a case like this one. If the justices who supported reversal of
termination are correct that the record was needlessly deficient even
though the department could easily have demonstrated the need for
termination, then the solution is also easy: just include enough of that
readily available evidence in the record. The department does that in hard
cases; it should be simple to do so when it regards a case as a slam dunk.
That point is the message I draw from Justice Brissette’s concurring
opinion. I express no view of how the court of appeals should have decided
this case—of whether the record was just adequate enough (as Justice
McCray thought) or sufficient to uphold a predicate-ground finding but
not the best-interest finding (as Justice Meza thought) or insufficient to
uphold even a predicate-ground finding (as Justice Brissette thought).
But I readily agree with Justice Brissette that the State must turn sharp
corners when it comes to exercising the fearsome governmental power of
taking children away from their parents. I say that with full recognition
of the difficulties faced in this fraught area of law and with great

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appreciation for the men and women who labor in these harrowing cases.

* * *
“[T]ermination is always the last resort,” D.V. v. Dep’t Fam. &
Protective Servs., 722 S.W.3d 854, 861 (Tex. 2025), but one that becomes
necessary when, for example, a parent has proven wholly incapable of
discharging the most elementary obligations of parenthood, such as
providing basic safety, shelter, and nourishment. It is depressing to
contemplate how many of our fellow citizens fail to meet that quite low
bar and thus have forfeited one of the most elevated titles available to
anyone: “Mother” or “Father.” But a court can reach that distressing
conclusion only with proof—and proof that is clear and convincing.
This requirement is easy to say but sometimes hard to apply. The
justices of the court of appeals struggled with this case, ultimately finding
themselves intractably divided. All of them appear to agree that, at least
based on what was alleged and what may have been established at an early
stage of the case, Mother fell so woefully short that it was entirely proper
for the department to pursue parental termination. The family apparently
lived in a building described as an abandoned barbecue restaurant that
provided little protection. Two of the children were bitten by snakes (one
of those bites, though, might have been from a wild rabbit); the elder of
those two children has suffered permanent disfigurement from her injury.
One child apparently became involved with drugs and illegal behavior, was
stabbed in the abdomen during an altercation, and by age 15 was on
probation with criminal charges pending. There had been allegations of
sexual abuse against at least one child by the father of a different child.
Mother herself had been imprisoned multiple times.

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The opinions of the court-of-appeals justices detail these and many
other similar points. The problem is that the actual record at trial is
remarkably sparse about them. That deficiency is serious because the
right of fit parents “to guide and direct their children’s upbringing, and
simply to be with their children, is unique among all other claims in our
civil legal system.” D.V., 722 S.W.3d at 858. That is why we strictly
scrutinize proceedings in which the State seeks the termination of parental
rights. See id.; see also Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976).
Appellate courts participate in that scrutiny by ensuring, among other
things, that the record supports each termination order. When the
government inadequately shows its work in the trial court, it is difficult for
an appellate court to know whether the termination was legally justified.
Take this case, for example, in which the court of appeals was
fractured largely because of the state of the record. The entire transcript
of the (alas) video-conferenced trial amounts to 70 pages. Within those
70 pages, the court dealt not only with Mother’s case as to five children,
but also the cases of the four different fathers whose parental rights were
in jeopardy. And the exhibits volume includes little more than service
plans and matters related to paternity—no police reports, no criminal
convictions, no photographs, and no medical records. It is therefore not
surprising to me that Justice Meza was underwhelmed by the department’s
evidence that termination was in the children’s best interests. In her view,
“while there was clear and convincing evidence of endangerment pre-
removal, the record contains paltry evidence of post-removal facts.” 2025
WL 900127, at *9. Whenever the department contemplates “the ‘death
penalty’ of civil cases,” In re R.J.G., 681 S.W.3d 370, 381 (Tex. 2023)

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(quoting In re D.T., 625 S.W.3d 62, 69 (Tex. 2021)), it should proceed only
on the basis of a solid record that meticulously documents the grounds
for termination, the children’s interests, and the department’s efforts to
preserve the family.
If clear and convincing evidence supporting termination existed but
was simply not presented, the consequences are more than troubling.
Justice Brissette’s views as to this point warrant careful consideration,
and I quote her opinion at some length:
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. 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.
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.
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.

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719 S.W.3d at 645–46 (citations omitted).
As Justice Brissette notes, the removal affidavit contained facts that
the department did not later present at trial that may have strengthened
the department’s case, including Mother’s extensive history with the
department and the criminal-justice system, a live-in grandmother’s drug
use, and the fact that the abandoned barbeque restaurant where the family
lived was basically just a shed. See id. at 646. If the facts in the removal
affidavit were true, and if there had been no change in circumstances that
displaced them, then the department should have presented them all at
trial. Justice Brissette is likely correct in her diagnosis that “the
Department found this was an open and shut case and handled it
accordingly.” Id. (Of course, if the facts in the affidavit are not true, then
the department inexcusably separated the children from their mother on
false pretenses.)
To be sure, and as noted above, the slim trial record does contain
some disturbing allegations. The en banc dissent powerfully examines the
details of the case; it reasonably (and accurately) asserts that it would be a
serious error for a court’s “concern with the brevity of the record” to ipso
facto compel a reviewing court to conclude that the record did not support
the judgment. 719 S.W.3d at 689. Page count and evidentiary sufficiency
are not necessarily correlated at all.
Again, I decline to take any position and indeed have not confirmed
in my own mind whether this particular case’s judgment was correct or
whether the dissent got it right. But even if one assumes that the record
could justify the judgment of termination, the concerns that Justice
Brissette expressed still strike me as entirely correct—that it is essential

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for the department to create a record that is clean and clear enough to
justify the harsh remedy of termination. Doing so is necessary to protect
children. If a thorough record would still have failed to demonstrate a need
for termination, then the rights of the children to their parents (and not
just the other way around) would be threatened by judicial willingness to
presume facts or conclusions that are not actually in evidence. And if the
record would have been sufficient had it been complete, then a needlessly
inadequate record threatens the safety of children by denying an appellate
court the ability to verify that the State has cleared the heavy legal
obstacles to termination. A child’s right to escape hellish and abusive
conditions cannot be sacrificed at the altar of parents’ rights to avoid
termination. That is why it is so important for the department to take
every single case seriously and to build a complete record every time
termination is on the table.
The irony is that this task should be easier in cases that the
department regards as straightforward, which is why I hope that cases
like this never again need to be resolved by a Texas court. The men and
women who toil daily to protect children and families deserve our collective
gratitude; my comments today should not be read as advocating
unreasonable new burdens on those already laboring with insufficient
resources. I am not confident that, day in and day out, I could do what
they do, and I approach cases like this one from a position of humility.
If anything, therefore, I hope that my comments encourage these men and
women to recognize that the very importance of the task to which they
devote themselves requires taking enough steps to ensure that the truth
that they have discovered is well established on a record that others must

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review. That effort, arduous as it may sometimes seem, is what will allow
their hard work to result in accurate legal judgments that will protect the
depressingly large number of Texas children who, through no fault of their
own, lack parents who can or will protect them and who must therefore be
protected by the law.

Evan A. Young
Justice

STATEMENT FILED: June 5, 2026

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