In THE INTEREST OF R.R.A., H.G.A., H.B.A., CHILDREN v. the State of Texas

Supreme Court of Texas
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No. 22-0978
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In the Interest of R.R.A., H.G.A., H.B.A., Children

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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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JUSTICE BLACKLOCK, joined by Justice Busby, dissenting.

Texas’s child welfare system has many problems. The underlying
problem is that far too many parents in Texas are woefully incapable of
caring for their children. The reason almost always involves drugs,
frequently methamphetamine. If we could rid our society of the scourge
of these drugs, the benefit to the children of Texas—particularly the
poorest and most vulnerable children—would be incalculable. We could
try much harder to do this for our children, but we do not. Our inability
to win the long-running “war on drugs” is a failure of will. It can be
done, but obviously not in the way we are doing it.
Until we get far more serious about protecting families and
children from addictive, destructive substances like methamphetamine,
there will be no shortage of Texas children in desperate circumstances
with nowhere to turn for help but the government. Our child welfare
system struggles to accommodate this terrible demand. The system’s
difficulty handling the volume of children in its custody is well
documented.1 One solution to the volume problem, of course, would be
to focus resources on the worst cases, cases in which abused or neglected
children have suffered the dire consequences of their parents’ terrible
failures. Sadly, there is no shortage of such cases. Resources spent on
marginal cases—in which a troubled family has thus far cared
adequately for its children but the government suspects this may not
continue—are resources not spent ensuring that the many children
already facing acute abuse or neglect are well cared for when the State
must assume the grave responsibility of taking them into its custody.
This was just such a marginal case. Unlike the majority, I have
no quarrel with the court of appeals’ eminently reasonable decision to
reverse the termination of this father’s rights. 654 S.W.3d 535, 556 (Tex.
App.—Houston [14th Dist.] 2022).
***
The father in this case used methamphetamine, and the
government’s concern about his drug use was understandable. But CPS
never observed the children themselves to be anything other than
healthy and happy. This father clearly loves his children, despite his
problems. He obviously needed help caring for them, and he got that
help from his mother, the children’s grandmother. He got no help from
the children’s mother, whose meth addiction appears to have been more
debilitating than his. Unlike so many men in similar circumstances who

1 See, e.g., M. D. by Stukenberg v. Abbott, 907 F.3d 237, 258 (5th Cir.

2018) (“The combination of unmanageable caseloads and high caseworker
turnover [at the Texas Department of Family and Protective Services] creates
a ‘cycle of crisis’ that allows children to ‘fall through the cracks.’”).

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abandon their children to fatherlessness, this father remained. His
children did not have a model father, but they had a father. They also
had a grandmother. And by all accounts, they were clean, healthy, and
well-fed. There were no clear signs of abuse or neglect. Their family
was far from ideal, but it was a family.
At one point, the best the father could do was to sleep in his truck
with his children for a short time. Were the children hungry, desperate,
dirty, or in danger at this time? There is no evidence of that. The
evidence is that their grandmother was nearby and was consistently
involved in their care. When CPS arrived to investigate the allegation
that the children were living with their father in his truck, the children
were found to be healthy and living with their grandmother. No positive
drug test indicates that the father was impaired during the time that he
and his children slept in his truck. The children were removed when
the father later tested positive for meth, but there is no indication that
their living arrangement at that time, with their grandmother,
endangered them. To the contrary, at the CPS visit that precipitated
the children’s initial removal into state custody, CPS observed the
children to be “clean and eating pizza” in their grandmother’s care.
At a later point, the grandmother was hospitalized for an illness,
which left the father alone to care for the children. This violated
restrictions on the father’s visitation that had been imposed after the
first removal. When the authorities arrived, they found an unidentified
woman with meth paraphernalia at the grandmother’s house. They
arrested her and took the children. Father, however, tested negative for
drugs a few days later—so any suggestion that he was doing drugs with

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the arrested female visitor instead of caring for his children is not
supported by evidence. There is no clear and convincing indication that
these children had been abused or neglected in any way at the time they
were last taken from their father—or at any other time in their father’s
or their grandmother’s care.
The Family Code presumes that not all drug use by parents
endangers children so as to warrant termination of parental rights.
Section 161.001(b)(1)(P) authorizes termination of parental rights when
the parent has “used a controlled substance . . . in a manner that
endangered the health or safety of the child.” TEX. FAM. CODE
§ 161.001(b)(1)(P). This provision only makes sense if some uses of a
controlled substance by a parent do not endanger the health or safety of
children in a way that warrants termination.
The allegation against this father at the time of the children’s
initial removal was that he routinely snuck out of the grandmother’s
house to use meth while his mother cared for his children. Hardly the
behavior of a good parent, but how exactly does it endanger the children,
who remain with their capable grandmother? Where is the clear and
convincing evidence that, at any particular point in time, these children
were endangered by the way their family cared for them? A damning
litany of the father’s sins fills the majority opinion, but there is no
mention of any moment in these children’s lives at which we can say
with confidence that they suffered a particular harm or faced a
particular danger. Instead, we have only suspicion and inference about
the generalized dangers associated with parental addiction and
instability. This is no substitute for clear and convincing evidence

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showing how and when this father endangered these children to a degree
that warrants judicial termination of his legal fatherhood.
The government’s theory of the case seems to be that the father’s
drug addiction itself is sufficiently endangering to the children to
warrant termination. That is not enough under subsection (P), which
requires clear and convincing evidence of the way these children were
endangered by this drug use—not generalized concerns that drug
addiction is incompatible with good parenting. Drug addiction obviously
is incompatible with good parenting, but when the addicted parent has
enough good judgment to lean on more responsible family members for
support, as this father did, then the addiction itself has not necessarily
endangered the children.
“[I]nvoluntary termination statutes” should be “strictly construed
in favor of the parent.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
The Court’s expansive approach to the pivotal statutory word
“endangered,” however, has trended in the opposite direction and now
seems fully divorced from the discrete sense in which the statute uses
the word. See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (P). This is a
statute about the judicial destruction of families. The question it asks
is whether children have experienced the kind of endangerment that
justifies the forcible dissolution of a family by the government. The
question is not whether the factfinder or the appellate court can imagine
bad things happening to these children if they remain with their family.
In any non-ideal family situation—whether poverty,
homelessness, drugs, living in a rough neighborhood, etc.—the children
will face many dangers not faced by children in more ideal

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environments. This does not make their parents eligible for the civil
death penalty under the Family Code. See In re D.T., 625 S.W.3d 62, 69
(Tex. 2021) (describing parental termination as the “death penalty” of
civil cases). Properly understood, the statute requires clear and
convincing evidence of endangerment that warrants the extraordinary
remedy of termination. This surely means, at a minimum, that the
children have actually suffered significant harm or have blessedly
avoided significant harm despite being exposed to extraordinarily
dangerous conditions by their parents. I see no such evidence here.
The court of appeals was justified in reversing the judgment of
termination under the less deferential “clear and convincing evidence”
standard. Under that standard, the “inferences” upon which the
majority relies should not be allowed. See ante at 14 (“A factfinder may
infer endangerment from ‘a course of conduct’ that presents substantial
risks to the child’s physical or emotional well-being . . . .”). An inference
is not clear evidence. Nor are mere inferences convincing enough to
support the awesome remedy of parental termination.
***
Discussion by judges and lawyers of “parental termination” can
obscure an important truth. Civil human authorities may have the
power, in extreme cases, to forcibly sever the legal bond between a
parent and a child. But the relationship between parent and child is far
more than a legal construct. Parents and their children are “bound
together by natural ties deeper and stronger than any law.” See In re
A.M., 630 S.W.3d 25, 25 (Tex. 2019) (Blacklock, J., concurring in denial).
This natural bond cannot be severed by decree of an earthly government.

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Even if the court of appeals did not perfectly apply this Court’s
questionable precedent on child endangerment, we should nevertheless
have denied this petition. It is not important to the jurisprudence of
Texas that we reinstate the termination of this father’s rights. There
are many, too many, problems with our child welfare system. An
overabundance of successful appeals by parents whose rights have been
terminated is not among those problems. This Court received petitions
in roughly 356 parental-termination cases in 2022 and 2023. Nine of
those petitions were filed by the government. The other 98 percent were
filed by parents who lost in the court of appeals. Most of these cases
involve families that have already destroyed themselves as a matter of
fact by the time the State makes their destruction official as a matter of
law.
This was not such a case. This father fought for his family on
appeal, and against great odds, he won. Leaving the court of appeals’
judgment alone would not have left these children uncared-for, and it
would not have prevented the government from continuing to monitor
their welfare. We should have let the court of appeals’ decision stand
and focused our attention elsewhere.
I would therefore have denied the petition for review. The Court
having granted it, I would dismiss it as improvidently granted. Failing
that, I would affirm the judgment of the court of appeals reinstating this
father’s rights. Because the Court does otherwise, I respectfully dissent.

James D. Blacklock
Justice

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OPINION FILED: March 22, 2024

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