In THE INTEREST OF A.P., a CHILD v. the State of Texas

Supreme Court of Texas
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No. 22-0482
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In the Interest of A.P., a Child

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On Petition for Review from the
Court of Appeals for the Tenth District of Texas
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JUSTICE YOUNG, joined by Justice Lehrmann, Justice Blacklock,
and Justice Busby, concurring in the denial of the petition for review.

This petition raises the important and delicate question of what
role a parent’s status as a victim of domestic violence should play when
the government seeks to terminate a parent–child relationship. In this
case, the court of appeals affirmed the termination of the parental rights
of petitioner A.R., whom I will call “Mother.” In explaining why this
termination was in the best interest of A.P., whom I will call “Daughter,”
the court’s chief explanation was as follows:
Most telling, and most troubling in our best interest review,
however, is the emotional trauma that was inflicted on
[Daughter] which was expressed at a visit with [Mother] in
the middle of the proceedings. [Mother] came to a visit with
[Daughter] with visible blood, bruises, cuts, and scratches
from some type of altercation. [Daughter] was extremely
upset when she saw her mother. . . . [Mother] did not want
to miss the visit, so she came in a battered condition without
consideration for how it might affect [Daughter] to see her
that way.
No. 10-22-00008-CV, 2022 WL 1417356, at *3 (Tex. App.—Waco 2022).
Although I concur in the denial of the petition for review, I do so
despite rather than because of that assertion. I certainly do not doubt
that emotional trauma can properly inform the best-interest analysis.
Nor do I suggest that the parental rights of a victim of domestic violence
cannot be terminated if, for example, that parent cannot protect her child.
Rather, precisely because termination is so serious, courts must ensure
that the analysis does not reduce to inevitably terminating the rights of
such a parent because of her status as a domestic-violence victim.
My concerns touch on both the record (which reflects a far less
gruesome image than the quoted depiction) and the law (which requires
heightened rigor and care before destroying the fundamental
constitutional rights of parents to a relationship with their children and
vice versa). Sadly, it is a recurring circumstance for parents—most
typically mothers—to simultaneously be victims of abuse and be subject
to the loss of their parental rights. I therefore write separately to address
the judicial treatment of that recurring pattern.

* * *
First, some legal and factual background. Daughter was removed
by the State following concerns about drug use and neglect. To have even
a shot at reunification with her child, Mother learned, she must comply
with a “service plan.” A service plan is a document prepared by the
government and then made an order of the court. It consists of a lengthy
and detailed series of requirements designed to show that retaining the
parent–child relationship remains in the child’s best interest, including
by demonstrating that the problems leading to the removal of the child

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have been remedied.
“These [service] plans can be difficult—perhaps impossible—to
comply with fully.” In re A.A., ___ S.W.3d ___, 2023 WL 3910142, at *9
(Tex. June 9, 2023). Yet noncompliance with a service plan is a serious
predicate ground for terminating parental rights. See Tex. Fam. Code
§ 161.001(b)(1)(O). Very serious indeed: many terminations in this State
are predicated solely on the failure to complete a service plan under
paragraph O, as reflected in this Court’s cases and those in the courts of
appeals. Both the government and the courts have often been extremely
unforgiving of even minor deviations.
The requirements of a service plan vary, but typically among them,
as here, is compliance with a schedule of supervised visits with the child.
The plans likewise generally include (also as in this case) the admonition
that failing to make a visit would constitute grounds for the courts to
permanently terminate parental rights.
Translated into more ordinary language, failure to make the visits
(or to do anything else the service plan requires) could lead the court to
end Mother’s very status as Daughter’s mother. In the eyes of the law,
they would become strangers. As a legal matter, that family would cease
to exist. Justice Lehrmann’s bleak but accurate statement says it best:
“Termination of parental rights, the total and irrevocable dissolution of
the parent–child relationship, constitutes the ‘death penalty’ of civil
cases.” In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J.,
concurring). The Court has repeatedly agreed with Justice Lehrmann’s
description. See, e.g., In re J.W., 645 S.W.3d 726, 751 (Tex. 2022); In re
D.T., 625 S.W.3d 62, 69 (Tex. 2021).

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This Court, therefore, has long expressed “the view that
termination is such a drastic and grave measure that involuntary
termination statutes are strictly construed in favor of the parent,” Holick
v. Smith, 685 S.W.2d 18, 21 (Tex. 1985), reserving termination for only
the gravest of cases. But at least as a general matter, it is not
unreasonable to condition successful completion of a service plan (and
thus to avoid the dire outcome of parental termination) on maintaining a
schedule of visits with the child. After all, what fit parent whose child
has been removed by the State would regard such visits as a burden
rather than a gift? What parent would not desire as many visits with her
child as possible, whether a service plan requires them or not?
The record in this case reflects that Mother desperately wanted to
see her child and vice versa. As the court of appeals observed, Daughter
“appeared to be bonded to her mother.” Daughter’s counselor confirmed
at trial that “[Daughter] absolutely missed her mom. She did voice that
quite a bit.” The foster mother made the same point on the stand. When
Daughter was upset, she said, “we soothed her and calmed her down, and
she said that she missed her mom.”
Mother, however, had few resources and was in an abusive
relationship. A scheduled visit was approaching, but she had recently
been beaten and appeared battered in a way that might distress
Daughter. What should she do? Give up the chance to see Daughter and
risk termination? Or go, but risk seriously disturbing Daughter by
appearing in her current condition?
Mother seemed to face defeat no matter what she did. Under
paragraph O, adhering to the service plan was essential to avoid

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termination of her parental rights. But if attending the visit meant
inflicting emotional harm on Daughter—who was just five years old at
the time—that would then supply another predicate ground for
termination under paragraph E. See Tex. Fam. Code § 161.001(b)(1)(E).
Facing this Hobson’s choice, Mother chose to make the visit—and
this is what led to the court of appeals’ lead conclusion about best interest.
As I noted, that court emphasized Mother’s “visible blood, bruises, cuts,
and scratches” as its primary basis for affirming that the termination was
in Daughter’s best interest. The description in the court of appeals’
opinion is so jarring because it suggests that Mother, openly bleeding, had
done nothing to conceal such fresh and untreated injuries. One might
well wonder, given this frightening depiction, whether Mother could not
have shielded Daughter from seeing at least some of it. Could she not
have obscured the worst wounds, put on a long-sleeved shirt, washed off
the blood, or taken similar steps?
In fact, the record does not bear out the overstated portrayal of how
Mother appeared to Daughter—certainly not enough to be the most
significant and weighty part of a best-interest analysis that culminates
in termination. The language adopted by the court of appeals does appear
in the record—they were the words of counsel for the State to which a
witness who was not at the scene said “Yes” (during direct examination,
no less). I quote the relevant testimony in the margin below.1 But

1 The witness was the licensed professional counselor assigned to
Daughter. After counsel established that the witness found Daughter to be
truthful, this line of questioning developed:
Q. Okay. And, now, there was sometime, I believe, in

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another witness was on the scene—the foster father, who personally took
Daughter to the visit in question and observed Mother. His direct
examination came after the testimony of the counselor that the court of
appeals summarized. In his own words—not merely saying “yes” to
counsel—he described Mother’s appearance this way: “She had, as I
recall, a black eye, scuff marks along her arm and on her leg.” He added
that he “would have put the injuries at about five days. The scuff marks
were scabbed over.” He agreed with counsel for the State that “the

August where she had a meeting with her mother, correct?
A. Yes.
Q. And this particular visit traumatized [Daughter],
would you say?
A. This event was emotionally triggering for her.
Q. And let me -- let me be clear for the Court. The mother
showed up to a visit where she was bloody and bruised, correct?
A. Yes.
Q. And that had been reported to you by [Daughter]?
A. It had been reported to me by several parties,
[Daughter] including one of them.
The Court briefly interrupted the testimony to address an administrative
matter. The examination continued, when counsel notably omitted the key word
“bloody”:
Q. Okay, Ms. Pryor. I believe I was asking you about the
incident where the mother showed up to her visit with [Daughter]
looking bruised, correct?
A. Yes.
Notably, several minutes later in her testimony, that witness read
from her notes, quoting what Daughter had told her, reflecting injuries
but not gore:
“I saw Mom all beat up. She had cuts all over her. She
had a black eye. [Boyfriend] did this to her. I don’t know why she
is with him. He did this before.” [Daughter] was able to point and
describe to me where the lacerations and cuts were on her -- on
the mom’s body. So she remembered very specific details of that
event.

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injuries did not appear to be new.” (Emphasis added.)2 His wife, when
describing the visit at trial, recounted it this way, also omitting any
depictions of blood and gore: “My husband picked [Daughter] up late in
the afternoon . . . to take her to Cameron Park to have a visit with her
mom. . . . When she came home, she related a story of seeing her mom in
an injured way.”
In short, the record confirms that Mother was noticeably injured—
but nothing like the evocative description provided by counsel for the
State and relied upon by the court of appeals. This discrepancy is no
minor detail. It matters because the court of appeals found the “emotional
trauma that was inflicted on [Daughter]” by seeing her battered mother
at the ill-starred visit was not just a detail in the story but its chief

2 In other words, even counsel backed away from the blood-dripping
image that the single, brief question she asked to the licensed professional
counselor might have suggested. Again for completeness, the relevant testimony
of the foster father proceeded as follows:
Q. So, Mr. Wilson, were you present at that visit?
A. At the beginning of the visit.
Q. Were you able to see the mother?
A. Yes.
Q. Okay. Can you describe what the mother looked like?
A. She had, as I recall, a black eye, scuff marks along her
arm and on her leg.
Q. Okay. So it appeared that she had been recently
injured?
A. I would have put the injuries at about five days. The
scuff marks were scabbed over.
...
Q. . . . So, Mr. Wilson, the injuries did not appear to be
new, correct?
A. No.
Q. And, so, can you describe what you saw and
[Daughter]’s reaction to seeing her mother that way?
A. She was scared and concerned.

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episode. It was the “[m]ost telling, and most troubling [consideration] in
our best interest review,” according to the court.
Because of the grave consequences of a termination, it is
incumbent that we get it right when we tell parents why they no longer
may be parents. The event remains relevant, of course. Even if Mother’s
appearance was not nearly as shocking as described, it is at least clear
that she could not fully conceal her victimization at the visit—certainly
not from her perceptive child. The court of appeals accurately described
that some witnesses thought Daughter’s general anxiety increased
after—and because of—the visit in question. Id.3 At trial, counsel for the
State cross-examined Mother about this fateful visit, asking, “You didn’t
think that there was a problem showing up to your visit with [Daughter]
having bruises and cuts all over you?” Mother responded with candor and
humility: “I knew that it wasn’t probably the best idea. But I didn’t want
to miss the chance of not seeing my daughter.”4
Without question, the visit was challenging—which speaks well of
Daughter’s emotional maturity despite her short yet heartbreaking
childhood. It would probably be more concerning if such a small child
who cared about her mother had no reaction upon perceiving her parent’s
suffering. The emotional distress to Daughter was real, in other words,
but when placed in its proper context, it seems less abnormal. Daughter’s

3 Daughter surmised that the abuse came from Mother’s partner (who
had a record of domestic abuse). Mother, by contrast, “contended that she had
been in an unprovoked altercation with [a family member] right before the visit.”
4The court of appeals’ contention that Mother “came in a battered
condition without consideration for how it might affect [Daughter]” (emphasis
added) seems to be supported by no evidence, but it would be reasonable to draw
the no-consideration conclusion if the depiction of the visit had been accurate.

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evident love for Mother makes it easier to understand the little girl’s pain.

* * *
I pause to emphasize that I have no intent to romanticize the story
or suggest that Mother was a model parent. To the contrary, Daughter’s
early life did not satisfy the basic standards that any child in Texas
should enjoy. Our laws properly protect children when their parents’
shortcomings fall below a certain level. Following a trial, the district
court terminated Mother’s rights to Daughter, and a panoply of reasons—
not just the distressing visit when Mother had been battered—explain
this decision. The court of appeals had no real choice but to affirm.
Indeed, as the court of appeals noted, Mother did not challenge every
ground for termination on appeal, making it impossible to reverse the
termination on the ground that no predicate act could be established.
Nor, given this record, is there a legal basis to disturb the district court’s
best-interest conclusion—that basis just cannot be the one that the court
of appeals deemed most telling and significant.
This brings me to my final point: the law that applies in these
circumstances. Getting the law right is just as important as ensuring
that we accurately recount the record in this and every termination case.
To conduct the best-interest analysis in a termination proceeding,
Texas courts have traditionally considered several enumerated “Holley”
factors.5 The list in the footnote is not exhaustive, but, in my judgment,

5They include: “(A) the desires of the child; (B) the emotional and
physical needs of the child now and in the future; (C) the emotional and physical
danger to the child now and in the future; (D) the parental abilities of the
individuals seeking custody; (E) the programs available to assist these

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the court of appeals erred in extending it to include (and to elevate to top
importance) Mother’s battered appearance and condition at a mandatory,
scheduled visitation.
I address this point because, as I said earlier, the stakes are so
high: “A parent’s fundamental right to the care, custody, and control of
his child is of constitutional magnitude.” J.W., 645 S.W.3d at 740. And
it goes the other way, too: no child should be deprived of her biological
parent unless the law requires it. While that high bar is met here,6 the
one event that mattered most to the court of appeals is not among the
plausible grounds to uphold the trial court’s judgment.
And this concern is why I write separately. While this case can
only come out one way, placing such emphasis on this mistaken factor
could lead to improper judgments in future cases. I fear that this
approach is just shy of deeming a mother’s status as a victim to be in and
of itself sufficient to warrant termination.
Showing up and putting forth effort to maintain a relationship
with a child is usually seen as a positive step. Of course, it is the best
interest of the child that we are focused on, and I do not discount the
fear, sadness, or anger that a child may feel when seeing a battered or

individuals to promote the best interest of the child; (F) the plans for the child
by these individuals or by the agency seeking custody; (G) the stability of the
home or proposed placement; (H) the acts or omissions of the parent which may
indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.” Holley v. Adams, 544
S.W.2d 367, 372 (Tex. 1976) (footnotes omitted).
Both Mother and the men with whom she resided abused drugs and
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were unable to give Daughter the supervision and support she needed. These
men had a history of domestic violence. One of them stabbed himself, allegedly
in Daughter’s presence.

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abused parent. But even as our focus remains on the child, we should
be especially wary of standards, or the application of standards, that
disproportionately affect victims of domestic violence and such victims’
children.
This is not to say that the victimization of a parent could not lead
to circumstances that are linked to relevant and probative bases for a
best-interest analysis. The problem is in cutting corners and
inadvertently converting a parent’s status as an abuse victim into a de
facto basis for termination. For example, Daughter’s own safety might be
in question if Mother’s safety was in jeopardy—something that might be
true regardless of how well Mother could disguise her injuries. Likewise,
knowingly or repeatedly placing Daughter in a position where she would
likely observe serious violence against anyone (the parent or someone
else) would clearly warrant the State’s protection and likely termination
of parental rights.
Those factors may properly be weighed in a best-interest analysis.
But pointing to evidence of a direct link to such considerations is crucial,
particularly when addressing an isolated incident like the visit here.
Otherwise, the fact that a woman was assaulted—something that is never
the victim’s fault—practically becomes the chief tool to destroy that
woman’s status as a mother simply for showing up to see her child after
enduring an unquestionably tragic and violent event. Our courts must
remain highly attuned to the risk of conflating victimization with
unfitness without taking that additional step.

* * *
I finally add that my comments come with deep respect for the

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court of appeals in this case and all the other courts that must confront
sad cases like this one. This Court sees case after case involving the
termination of parental rights; our colleagues on the trial courts and the
courts of appeals see far more of this depressing corner of the docket.
I wish that the People of Texas better understood the faithful, daily
service to our State that these judges of our trial and intermediate
appellate courts perform by addressing this grim aspect of their caseload
day after day. It is grinding work to pass judgment on whether one of our
fellow citizens has fallen so far beneath basic standards that his or her
right to remain a parent must be withdrawn. But the work must be done.
My respectful disagreement with the analysis of the court of
appeals is accompanied by my recognition of that court’s determination
to protect the rights of both an innocent daughter—a precious child who
deserves a flourishing future—and her mother, a citizen who deserves
every lawful consideration before losing her parental rights. Parental-
termination cases are never easy or taken lightly by any court, as I well
know. Surely that is especially true in cases like this one, where it is clear
that the problem was not a lack of love, but the inability—due to drugs or
other malign influences—to rise to the high calling of a parent. Yet judges
must follow the law. I conclude that the law required the court of appeals
to uphold the district court’s termination order, and I concur in the denial
of the petition for review of the court of appeals’ judgment.

Evan A. Young
Justice

OPINION FILED: June 30, 2023

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