In the Interest of T.D.-B., a Child v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-25-00054-CV

IN THE INTEREST OF T.D.-B., A CHILD

On Appeal from the County Court at Law No. 2
Gregg County, Texas
Trial Court No. 2023-1964-CCL2

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
Concurring Opinion by Justice van Cleef
Dissenting Opinion by Justice Rambin
MEMORANDUM OPINION

The Department of Family and Protective Services filed a petition to terminate Father’s

parental rights to his daughter, Talia.1 Following a bench trial, the trial court terminated Father’s

parental rights after finding that (1) he “knowingly placed or . . . allowed the child to remain in

conditions or surroundings [that] endanger[ed her] physical or emotional well-being,” (2) he

“engaged in conduct or knowingly placed the child with persons who engaged in conduct [that]

endanger[ed her] physical or emotional well-being,” (3) he failed to comply with provisions of a

court order establishing the actions needed to obtain Talia’s return, (4) he “used a controlled

substance . . . in a manner that endangered” the child and he “failed to complete a court-ordered

substance abuse treatment program,” (5) he posed a continuing danger to the child despite the

Department’s reasonable efforts to return her, and (6) termination of his parental rights was in

the child’s best interests. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O)(i), (P), (b)(2),

(f) (Supp.).2

On appeal, Father argues that the evidence is insufficient to support the trial court’s

finding that the Department could not return Talia to Father despite its reasonable efforts due to

continuing danger or to support the trial court’s best-interest finding. Because we find that

legally and factually sufficient evidence supports the trial court’s termination of Father’s parental

rights, we affirm the trial court’s judgment.

1
We use pseudonyms to protect the identity of the child. See TEX. R. APP. P. 9.8.
2
Mother’s parental rights to Talia were also terminated after she filed an affidavit of relinquishment of her parental
rights. Mother does not appeal.
2
I. Sufficient Evidence Supports Grounds for Termination of Parental Rights

In his first point of error, Father argues that the evidence is legally and factually

insufficient to support the trial court’s findings that statutory grounds existed to support the

termination of his parental rights.

A. Standard of Review

“The natural right existing between parents and their children is of constitutional

dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to

make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel

v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates

fundamental interests, a higher standard of proof—clear and convincing evidence—is required at

trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). “This Court is . . . required to

‘engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to

support the termination of parental rights.’” Id. (quoting In re A.B., 437 S.W.3d at 500).

“[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id. (alteration in

original) (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007), pet. denied,

260 S.W.3d 463 (Tex. 2008) (per curiam) (quoting Holick, 685 S.W.2d at 20)).

“In order to terminate parental rights, the trial court must find, by clear and convincing

evidence, that the parent has engaged in at least one statutory ground for termination and that

termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001; In re

E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘degree of

3
proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.’” Id. (quoting TEX. FAM. CODE ANN. § 101.007 (citing

In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009))). “This standard of proof necessarily affects our

review of the evidence.” Id.

“In our legal sufficiency review, we consider all the evidence in the light most favorable

to the findings to determine whether the fact-finder reasonably could have formed a firm belief

or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920

(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)

(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We

assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a

reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have

reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re

J.P.B., 180 S.W.3d at 573).

“In our review of factual sufficiency, we give due consideration to evidence the trial

court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209

S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder

reasonably could have found to be clear and convincing and determine ‘“whether the evidence is

such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the

. . . allegations.”’” Id. (alteration in original) (quoting In re H.R.M., 209 S.W.3d at 108 (quoting

In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)) (citing In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex.

2002))). “If, in light of the entire record, the disputed evidence that a reasonable factfinder could

4
not have credited in favor of the finding is so significant that a factfinder could not reasonably

have formed a firm belief or conviction, then the evidence is factually insufficient.” Id. (quoting

In re J.F.C., 96 S.W.3d at 266). “‘[I]n making this determination,’ we must undertake ‘“an

exacting review of the entire record with a healthy regard for the constitutional interests at

stake.”’” Id. (alteration in original) (quoting In re A.B., 437 S.W.3d at 503 (quoting In re C.H.,

89 S.W.3d at 26)). “We also recognize that the trial court, as the fact-finder, is the sole arbiter of

a witness’s demeanor and credibility, and it may believe all, part, or none of a witness’

testimony.” In re A.M., No. 06-18-00012-CV, 2018 WL 3077784, at *3 (Tex. App.—Texarkana

June 22, 2018, pet. denied) (mem. op.) (citing In re H.R.M., 209 S.W.3d at 109).

“Despite the profound constitutional interests at stake in a proceeding to terminate

parental rights, ‘“the rights of natural parents are not absolute; protection of the child is

paramount.”’” In re L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361 (Tex.

2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)) (citing In re M.S., 115 S.W.3d

534, 547 (Tex. 2003))). “A child’s emotional and physical interests must not be sacrificed

merely to preserve parental rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—

Texarkana 2015, no pet.) (citing In re C.H., 89 S.W.3d at 26)).

B. The Evidence at Trial

Jessica Galindo, an investigator with Child Protective Services, testified that, on October

22, 2023, the Department received an intake stating that Talia was “born at 33 weeks with the

mother testing positive for amphetamines.” Because of her premature birth, which Galindo

opined was from Mother’s methamphetamine use, Talia was sent to the Neonatal Intensive Care

5
Unit (NICU) in Houston. Galindo testified that Talia had low birth weight, had breathing

problems, and could not feed from a bottle. Because of those problems, Talia remained in the

NICU for a few months.

Michael Shane Morris, a toxicologist employed by Quest Diagnostics, testified that

Mother tested positive for amphetamine and methamphetamine on a consistent basis after Talia’s

removal. Morris testified that Father tested positive for methamphetamine and marihuana

metabolite on November 9, 2023, and tested positive for marihuana metabolite on December 28,

2023, and January 11, February 8, February 22, March 7, and March 28, 2024. Father also failed

to appear for a November 21, 2024, drug test, which was presumed positive. According to

Theresa Robinson, a permanency specialist with 4Kids4Families, Father had no negative drug

test results during the pendency of the case.

Father testified that he first used methamphetamine when he was eighteen and had been

using the drug “[o]ff and on for 10 years.” Father admitted that he and Mother both used

methamphetamine together when they “first found out [Mother] was pregnant” and that he was

using the drug every day around the time that Talia was born. Father testified that he and Mother

were homeless when Talia was born prematurely. Father also admitted that he was jailed during

the pendency of the case for a drug-related charge and used marihuana metabolite after his

release from jail.

Even so, Father did not believe that it was in Talia’s best interest to terminate his parent-

child relationship. Father testified that he was living with his adoptive mother and his brother’s

family and wished for Talia to move in with them. Yet, 4Kids4Families had been trying to

6
complete the required home study of the adoptive mother and brother’s home for months,

without any success. Father testified that he knew he was required to move out of the home to

begin the home study but never did so. Father acknowledged that he had eliminated the

possibility of placing Talia with his family by refusing to move out. While he planned to

renovate a camper trailer that had a hole in the floor, he admitted he did not have a place to move

it to.

Father had the right to supervised visitation once a week but had never progressed to

obtaining additional visitation rights because of his positive drug tests. Father claimed he had

been methamphetamine-free for “[a]bout a month and a half” but admitted he was still using

“CBD, Delta-8,” which he legally purchased to help with his anxiety. When asked if marihuana

was illegal in Texas, Father responded, “To be honest, I’m not sure,” even though he was

previously jailed for possession of a marihuana vape pen.

Robinson testified that Father completed parenting classes, a drug and alcohol

assessment, a psychological evaluation, and individual counseling but did not successfully

complete substance abuse counseling or a treatment program. Robinson testified that Father was

provided with supervised visitation when he was not incarcerated but “would be consistently

late” until the months before trial. Robinson testified that Father brought a person to one of the

visits who had a “consistent, strong smell of marijuana” on his person. According to Robinson,

it was not in Talia’s best interest to be returned to Father because he posed a significant threat to

her physical and emotional health.

7
Angie Higueros, a Court Appointed Special Advocate (CASA) supervisor, testified that

Talia’s foster placement was safe and that her foster mother was taking care of the child’s needs.

Higueros testified that CASA was concerned about Father’s ability to provide a home for Talia

and believed that terminating Father’s parental rights was in Talia’s best interest.

Colton Newberg, Father’s adoptive brother, did not wish to see Father’s parental rights

terminated. Even so, Newberg testified that it was not in Talia’s best interest to be returned to

Father in his then-current state and testified that he and his wife wished to adopt Talia.

After hearing this evidence, the trial court terminated Father’s parental rights to Talia.

C. Sufficient Evidence Supports the Ground D and E Findings

“Generally, ‘[o]nly one predicate ground and a best interest finding are necessary for

termination, so “a court need uphold only one termination ground—in addition to upholding a

challenged best interest finding—even if the trial court based the termination on more than one

ground.”’” In re C.C., 720 S.W.3d 31, 57 (Tex. App.—Texarkana 2025, no pet.) (alteration in

original) (quoting In re M.P., 639 S.W.3d 700, 702 (Tex. 2022) (per curiam) (quoting In re N.G.,

577 S.W.3d 230, 233 (Tex. 2019) (per curiam))). Even so, “due process requires that courts also

review termination under Subsections 161.001(b)(1)(D) and (E) even after affirming termination

on another ground because of the collateral effects of termination on those grounds.” In re M.P.,

639 S.W.3d at 702.

Ground D permits termination of parental rights “if the court finds by clear and

convincing evidence . . . that the parent has . . . knowingly placed or knowingly allowed the child

to remain in conditions or surroundings which endanger the physical or emotional well-being of

8
the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Ground E permits termination of parental

rights “if the court finds by clear and convincing evidence . . . that the parent has . . . engaged in

conduct or knowingly placed the child with persons who engaged in conduct which endangers

the physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E).

Endanger “means more than a threat of metaphysical injury or potential ill effects of a

less-than-ideal family environment.” In re E.N.C., 384 S.W.3d at 803. “‘[E]ndanger’ means to

expose to loss or injury; to jeopardize.” Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987); In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.) (quoting

Boyd, 727 S.W.2d at 533); see In re L.E.S., 471 S.W.3d at 923. Because the term ‘“endanger’

. . . include[s] a substantial risk of harm to the child,” direct harm to the child is not required.

In re R.R.A., 687 S.W.3d 269, 271 (Tex. 2024); see In re N.L.S., 715 S.W.3d 760, 764 (Tex.

2025) (per curiam). Accordingly, “[i]t is not necessary that the conduct be directed at the child

or that the child actually suffer injury.” In re L.E.S., 471 S.W.3d at 923.

When evaluating Ground D, “we are to examine the time prior to [the child’s] removal to

determine whether the environment of the home posed a danger to [her] physical or emotional

well-being.” In re D.R., 631 S.W.3d 826, 833 (Tex. App.—Texarkana 2021, no pet.) (quoting

In re L.E.S., 471 S.W.3d at 926). “Ground (D) permits termination [of parental rights] based on

a single act or omission [by the parent].” Id. (alterations in original) (quoting In re L.C., 145

S.W.3d 790, 797 (Tex. App.—Texarkana 2004, no pet.)). “[U]nlawful conduct by a parent . . .

can create an environment that endangers the physical and emotional well-being of a child as

required for termination under [Ground] (D).” Id. at 834 (alterations in original) (quoting In re

9
C.J.B., No. 05-19-00165-CV, 2019 WL 3940987, at *6 (Tex. App.—Dallas Aug. 21, 2019, no

pet.) (mem. op.)).

Under Ground “(E), it is sufficient that the child’s well-being is jeopardized or exposed to

loss or injury.” In re L.E.S., 471 S.W.3d at 923 (citing Boyd, 727 S.W.2d at 533; In re N.S.G.,

235 S.W.3d at 367). “Further, termination under [Ground] (E) must be based on more than a

single act or omission. Instead, a ‘voluntary, deliberate, and conscious course of conduct by the

parent is required.’” Id. (quoting Perez v. Tex. Dep’t of Protective & Regul. Servs., 148 S.W.3d

427, 436 (Tex. App.—El Paso 2004, no pet.) (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex.

App.—Eastland 1999, no pet.); Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 366–67)).

“Ground E ‘refers only to the parent’s conduct, as evidenced not only by the parent’s

acts, but also by the parent’s omissions or failures to act.’” In re R.G., No. 06-24-00035-CV,

2024 WL 4142842, at *5 (Tex. App.—Texarkana Sept. 11, 2024, no pet.) (mem. op.) (quoting

In re S.K., 198 S.W.3d 899, 902 (Tex. App.—Dallas 2006, pet. denied)). “The endangering

conduct may also occur ‘either before or after the child’s removal by the Department.’” Id.

(quoting In re Z.J., No. 02-19-00118-CV, 2019 WL 6205252, at *11 (Tex. App.—Fort Worth

Nov. 21, 2019, pet. denied) (mem. op.) (citing Walker v. Tex. Dep’t of Fam. & Protective Servs.,

312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied))). In our analysis

under Ground E, we may also consider a parent’s failure to complete relevant requirements of a

family service plan. In re Z.J., 2019 WL 6205252, at *11; In re U.H.R., No. 07-18-00318-CV,

2019 WL 81874, at *5 (Tex. App.—Amarillo Jan. 2, 2019, no pet.) (mem. op.).

10
The evidence at trial showed Father used methamphetamine with Mother while being

fully aware that she was pregnant, creating a danger for premature birth. “[I]llegal drug use by a

parent . . . supports the conclusion that the children’s surroundings endanger their physical or

emotional well-being.” In re D.R., 631 S.W.3d at 834 (alteration in original) (quoting In re K.B.,

No. 06-20-00074-CV, 2020 WL 7702179, at *4 (Tex. App.—Texarkana Dec. 29, 2020, no pet.)

(mem. op.)). Here, the record shows that Talia was born prematurely and suffered the

consequences of Mother’s and Father’s drug use in the form of low birthweight, trouble

breathing, and trouble eating. As a result, the evidence was both legally and factually sufficient

to show, by clear and convincing evidence, that Father’s drug use around Mother, and his

acceptance of Mother’s drug use while she was pregnant, created conditions or surroundings that

endangered Talia’s physical well-being.

Father readily admitted his long history of drug abuse. “‘Because it exposes the child to

the possibility that the parent may be impaired or imprisoned, illegal drug use may support

termination under’ Ground E.” In re H.M.J., No. 06-18-00009-CV, 2018 WL 3028980, at *5

(Tex. App.—Texarkana June 19, 2018, no pet.) (mem. op.) (quoting In re A.L., No. 06-14-

00050-CV, 2014 WL 5204888, at *7 (Tex. App.—Texarkana Oct. 8, 2014, no pet.) (mem. op.)

(quoting Walker, 312 S.W.3d at 617)). Father’s “failure to remain drug-free while under the

Department’s supervision will support a finding of endangering conduct under [Ground] (E)

. . . .” Id. (quoting In re J.A.W., No. 02-08-215-CV, 2009 WL 579287, at *4 (Tex. App.—

Fort Worth Mar. 5, 2009, no pet.) (per curiam) (mem. op.) (citing Vasquez v. Tex. Dep’t of

11
Protective & Regul. Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied))).

Here, the evidence shows that Father tested positive for methamphetamine after Talia’s

removal, had a presumptive positive test as late as November 2024, and consistently tested

positive for marihuana metabolite throughout the pendency of the case. Even so, he did not

complete any substance abuse counseling or treatment program. Additionally, Father had been

jailed during the case, resulting in missed visitations. The record also shows that Father and

Mother were homeless while Mother was pregnant and that Father still had no stable home of his

own. Based on that evidence, a rational factfinder “could reasonably infer Father’s difficulties in

providing shelter and support for” Talia “were related to his drug use.” In re R.R.A., 687 S.W.3d

at 279. As a result, legally and factually sufficient evidence showed that Father engaged in a

course of conduct that endangered Talia’s physical and emotional well-being.

D. Continuing Danger Remained Despite the Department’s Efforts to Return the Child

While arguing the sufficiency of the evidence on Grounds D and E, Father raised a

complaint related to Section 161.001(f), which states, in relevant part, that

the court may not order termination of the parent-child relationship under
Subsection (b)(1) unless the court finds by clear and convincing evidence and
describes in writing with specificity in a separate section of the order that:

(1) the department made reasonable efforts to return the child to the
parent before commencement of a trial on the merits and despite those
reasonable efforts, a continuing danger remains in the home that prevents
the return of the child to the parent.

TEX. FAM. CODE ANN. § 161.001(f)(1).

12
Here, the Department made reasonable efforts to return Talia to Father by implementing a

family service plan and by attempting to complete a home study. See In re M.N.M., 708 S.W.3d

321, 329 (Tex. App.—Eastland 2025, pets. denied) (“The Department’s implementation of a

family service plan is generally considered a reasonable effort to return the child to the parent.”

(citing A.D. v. Texas Dep’t of Fam. & Protective Servs., 673 S.W.3d 704, 714 (Tex. App.—

Austin 2023, no pet.))).

Father failed to abide by the terms of the family service plan and admitted the home study

could not be initiated since Father was present in the home. As for the issue of continuing

danger, Father admitted to a long history of methamphetamine use. Although he claimed to be

methamphetamine-free for “[a]bout a month and a half,” Father’s claim was never substantiated

since he was presumed positive for the drug on November 21, 2024, and Robinson testified that

Father had no negative drug test during the pendency of the case. See In re R.R.A., 687 S.W.3d

at 281 (noting that the Department’s family service plan “deemed a failure to test as a positive

test.”). Moreover, it was undisputed that Father tested positive for marihuana throughout the

pendency of the case and was jailed for drug possession, which prevented him from visiting

Talia. From this evidence, the trial court could have formed a firm belief or conviction that

Father posed a continuing danger to Talia. As a result, we find no error in the trial court’s

Section 161.001(f) finding.

Because we find that legally and factually sufficient evidence supported the trial court’s

Ground D and E findings, and that the trial court did not err by finding that there was a

13
continuing danger to Talia despite the Department’s reasonable efforts to return her, we overrule

Father’s first point of error.

II. Sufficient Evidence Supports the Trial Court’s Best-Interest Finding

Next, Father argues that the evidence is legally and factually insufficient to support the

trial court’s finding that termination of his parental rights was in Talia’s best interest.

“There is a strong presumption that keeping a child with a parent is in the child’s best

interest.” In re R.G., 2024 WL 4142842, at *6 (quoting In re J.A.S., Jr., No. 13-12-00612-CV,

2013 WL 782692, at *7 (Tex. App.—Corpus Christi–Edinburg Feb. 28, 2013, pet. denied)

(mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam))). “Termination

‘“can never be justified without the most solid and substantial reasons.”’” In re N.L.D., 412

S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543 S.W.2d

349, 352 (Tex. 1976)).

In determining the best interests of a child, courts consider the following Holley3 factors:

(1) the desires of the child, (2) the emotional and physical needs of the child now
and in the future, (3) the emotional and physical danger to the child now and in
the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals, (6) the plans for the child by these
individuals, (7) the stability of the home, (8) the acts or omissions of the parent
that may indicate the existing parent-child relationship is not a proper one, and
(9) any excuse for the acts or omissions of the parent.

Id. at 819 (citing Holley, 544 S.W.2d at 372); see In re E.N.C., 384 S.W.3d at 807; see also TEX.

FAM. CODE ANN. § 263.307(b).

3
See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
14
The Department is not required to present proof of each Holley factor. See In re M.C.,

482 S.W.3d 675, 688 (Tex. App.—Texarkana 2016, pet. denied) (citing In re C.H., 89 S.W.3d at

27). “When considering the child’s best interest, we may take into account that a parent is

unable to provide adequate care for a child, lacks parenting skills, or exercises poor judgment.”

Id. (citing In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.)). “Parental

drug abuse, which reflects poor judgment, is also a factor that may be considered when

determining the child’s best interest.” Id. (citing In re M.R., 243 S.W.3d 807, 820 (Tex. App.—

Fort Worth 2007, no pet.)). We may consider evidence used to support the grounds for

termination of parental rights in the best-interest analysis. In re C.H., 89 S.W.3d at 28.

As for the first factor, Talia, who was less than one and one-half years old, was too young

to express her desires. Even so, Robinson testified that the child was “always happy to see Dad”

and that she was bonded with both Father and her foster family. Father’s testimony shows that

he loved Talia and wished to be with her. Due to the fundamental interests implicated in

terminating a parent-child relationship, we find that there was sufficient evidence to support a

finding that the first Holley factor weighed in Father’s favor.

Next, the emotional and physical needs of Talia were great given her young age.

Robinson testified that Talia had to attend “physical therapy due to being born premature and

[was] behind in her development.” She also testified that Talia got “sick pretty regularly due to

her immune system not being as strong.” Father was unemployed for the majority of the case

and did not show that he had the ability to pay for the specialized treatment Talia needed. We

15
find that there was sufficient evidence to support a finding that the second Holley factor weighed

against Father.

As for the third factor, the evidence at trial shows that Father endangered Talia by using

methamphetamine with Mother while she was pregnant, was jailed during the pendency of the

case for possessing a marihuana vape pen, and had no negative drug tests. Galindo testified that

drug use creates an altered mind state making it difficult for a parent to meet a child’s basic

needs for food, shelter, and clothing. Robinson agreed with Galindo’s assessment and testified

that drug use could “inhibit employment.” Father was unemployed and homeless during

Mother’s pregnancy and still had no home of his own. Because he was incarcerated, he lacked

employment for the majority of the case’s pendency. Although Father testified that he had been

employed as a landscaper for “[a] couple of weeks” by the time of trial, he lacked stability and a

home of his own. See In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.—Houston [1st Dist.] 2017,

pet. denied) (quoting In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325, at *9 (Tex. App.—

Houston [14th Dist.] Feb. 12, 2013, pet. denied) (mem. op.)). Because Father’s history

suggested that he was incapable of providing for his own needs as well as Talia’s, we find that

there was sufficient evidence to support a finding that the third Holley factor weighed in favor of

terminating Father’s parental rights.

Next, the record shows that Father only had weekly supervised visitation with Talia and

had never progressed to receiving unsupervised visits because he could not pass a drug test.

Although he had taken parenting classes, the record shows that Father’s acts, including bringing

a person who smelled strongly of marihuana to a visitation and being late to visitation,

16
demonstrated a lack of parental ability. Accordingly, we find that there was sufficient evidence

to support a finding that the fourth Holley factor weighed in favor of terminating Father’s

parental rights.

As for the programs available to assist Father, the record shows that Father failed to

comply with the terms of the family service plan because he did not attend substance abuse

counseling or treatment. Instead, he continued to test positive for drugs. In light of Father’s

failure to comply, we find that there was sufficient evidence to support a finding that the fifth

Holley factor weighed against him.

As for the sixth factor, Robinson testified that Talia’s placement was not permanent even

though Talia was bonded to her placement. Even so, Robinson testified that another respite care

placement indicated her interest in being a “forever home” for Talia if she were legally available

for adoption. Thus, the Department’s plan was for the Department to be named Talia’s

managing conservator. In contrast, Father’s plan was for Talia to be placed in his adoptive

mother and brother’s home, but he admitted that no home study could be completed because he

was still living in the home and had no place else to move. Because Father did not yet have a

plan to provide Talia with a stable home, we find that there was sufficient evidence to support a

finding that the sixth Holley factor weighed against Father.

As for the remaining factors, “[e]vidence of past misconduct or neglect can be used to

measure a parent’s future conduct.” In re Z.M., 456 S.W.3d 677, 689 (Tex. App.—Texarkana

2015, no pet.) (quoting In re I.R.K.-N., No. 10-13-00455-CV, 2014 WL 2069281, at *7 (Tex.

App.—Waco May 15, 2014, pet. denied) (mem. op.) (citing Williams v. Williams, 150 S.W.3d

17
436, 451 (Tex. App.—Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex.

App.—Waco 1992, no writ) (“Past is often prologue.”))). Father’s use of methamphetamine

with Mother while she was pregnant showed that the existing parent-child relationship was not

appropriate. The record shows that Father, who was homeless and jailed during the pendency of

the case, was unstable due to a lengthy history of drug use. Despite knowing that he had to

submit negative drug tests to obtain Talia’s return, Father was unable to do so. He also missed a

drug test in November 2024, resulting in a presumptive positive test. Father’s excuse for the

drug tests that were positive for marihuana metabolite was that he purchased legal CBD and

Delta 8 products, but he had no excuse for his presumptive positive drug test or his continued

positive drug tests for marihuana metabolite after being warned that they would inhibit his ability

to procure unsupervised visitation. That evidence was sufficient to support a finding that the last

three Holley factors weighed in favor of terminating Father’s parental rights.

After considering whether the evidence was sufficient to support the trial court’s implicit

Holley findings, we conclude that legally and factually sufficient evidence supports the trial

court’s best-interest finding against Father. As a result, we overrule Father’s last point of error.

III. Conclusion

We affirm the trial court’s order.

Scott E. Stevens
Chief Justice

18
CONCURRING OPINION

I respectfully concur.

The opinion of the Chief Justice reaches the correct result, in my view, based on Father’s

failure to test for drugs, which results in a presumptively positive test. Thus, while the case was

pending and while his admitted methamphetamine use and possible marihuana use were

impediments to Father’s possessory right, Father was presumed to still be using those drugs.

This is unfortunate, since Father seemed to make substantial progress toward ending those

habits.

However, I would not fault Father’s failure to leave the home where he lived in order to

accommodate unknown Department policies regarding home visits. The Department seemingly

determined, prior to the final disposition of this matter, that Father’s home would not be studied

and that Father’s home was not with fictive kin. Father did, in fact, have a home with fictive kin

and also desired the return of his child to him; placement with fictive kin was an alternative

suggestion. This set an odd circumstance where the same physical location would need to be

studied both with and without Father. This circumstance did not excuse the Department from

providing the trial court with at least one home study (Father’s home with fictive kin). And the

record does not disclose any specific reason why the Department could not prepare both home

studies. Presumably, the fictive kin home study would stipulate Father moving elsewhere just as

any home study might recommend changes to facilitate placement. Courts have excused the lack

of a home study in odd circumstances, but those circumstances were based, for example, on

travel distance to another State, incarceration, and other factors not present here. The lack of a

19
home study by the Department is no more excused, here, than Father’s failure to undergo

required drug testing.

Even so, based on the precedent this Court must observe, Father’s presumptively positive

drug test during the pendency of the case provides justification for affirming the trial court’s

decision.

I therefore concur with the main decision.

Charles van Cleef
Justice

DISSENTING OPINION

Let me begin with two questions posed by the attorney for the Department. These

questions were put to Father and to the man trying to help Father and this child:

“Why didn’t you go ahead and live in your truck?”

“[W]hen you found out him living there was a problem getting a home study done,
why didn’t the family kick him to the curb that day?”

(Emphasis added).

Father repeatedly testified that he wanted his daughter.4 Father was bonded with his

daughter: “She was always happy to see Dad. Typically wanted to get out of her car seat right

4
Father’s testimony regarding placement in the event his rights were terminated was in the alternative. His
testimony on these points was as follows:

Q. (BY THE STATE:) Okay. And it is my understanding that if the child is not
returned to you today that you want this family to be considered as a placement for your daughter;
is that correct?
20
after we got there.” The same is true for Father’s fictive kin family. The Department’s witness,

Robinson, testified, “[She] appears to be bonded with all of them and has a very secure bond.”

For all of his faults, Father had improved between the time of removal and the final hearing. He

was trying. This is not to condone his ongoing marihuana use, nor his sporadic work history.

But while he was not providing a steady paycheck and he was not paying a mortgage, this

Father offered a home for his daughter. In significant part, he readied this home for his daughter

A. Yes, sir.
....
Q. . . . Do you think it is in the -- are you telling this Judge it is in the best interest
of your child to send you home with your child today, no strings attached?
A. Yes, sir.
....
Q. So let me ask you again: Is it in the best interest of your daughter for her to go
home with you today no strings attached?
A. Yes, sir.
....
Q. (BY FATHER’S COUNSEL:) You don’t want your rights terminated, do you?
A. No, ma’am.
....
Q. And as her dad -- this goes without saying, but we are going to say it anyway --
you don’t believe that it would be in her best interest for your rights to be terminated; right?
A. No.
Q. You have developed a relationship with her at your visits?
A. Yes, ma’am.
Q. You’re bonded to her?
A. Yes.
Q. She’s bonded to you?
A. Yes, ma’am.
Q. You’ve heard it testified that she gets excited when she sees you
A. Yes, ma’am.
....
Q. -- at the visits; right?
A. Yes, ma’am.
Q. You would like for that to continue, wouldn’t you?
A. Yes, ma’am.
Q. You want a full-time relationship with her; correct?
A. Correct.

(Emphasis added).

21
with his own hands.5 It is a good home. So good that the Department was considering it as the

child’s forever home, so long as Father’s rights to his daughter, and vice-versa, were forever

severed. In my estimation, the Department’s refusal to conduct a home study with Father in it

resulted from a profound error of law by the Department.

Questions of law are reviewed de novo. In re R.R.A., 687 S.W.3d at 276 (“We review de

novo the court of appeals’ interpretation of ‘endanger’ in Family Code section 161.001.”).

The error here being that the Department believes the law entitles it to tell a father

fighting for his daughter to go live in a truck and to tell a man offering shelter and support to the

father to turn the father away. I do not see the basis for that. The Department has conducted

home studies before when assessing a parent’s ability to parent. See In re J.W., 645 S.W.3d 726,

734 (Tex. 2022) (“Father proposed that he and J.W. could move in with Mother’s sister . . . and

requested that the Department conduct a home study.”). In that case, the Department conducted

the home study of the sort they refused to conduct here. See id. at 747. The home study revealed

concerns that supported a ground O finding. Id. (“With respect to Mother’s sister, the

Department’s home study raised concerns about her ability to meet a child’s needs, and a

caseworker testified that she too withdrew her name from consideration as a placement.”). Here,

ground O is not at issue, because the Department’s brief on appeal does not defend this

5
For example:

Q. (BY FATHER’S COUNSEL:) Tell the judge some of the things that you and
[fictive kin brother] have done to get the house ready?
A. We redid the ceiling. We redid the light fixtures. We did the painting. We
redid the kitchen. We’re still working on one part that’s a -- and that’s just getting the fire
extinguisher, which comes in tomorrow online from where we got it from.
22
termination on ground O.6 Dissenting justices in In re J.W. pointed out someone withdrawing

their name from being named a custodian of a child is not the same as a withdrawal of an offer of

shelter and support to the parent and the child. Id. at 764. (Blacklock, J., dissenting, joined by

Busby and Devine, JJ.). Here, though, there is no disagreement; the fictive brother, Father’s

friend of fifteen years, was all-in for both Father and this child, but the Department told him he

had to pick. Justice Young, in his concurring opinion in In re J.W. observed, “But the stakes

here—the future of small children and of families—are dramatically higher than in most

administrative cases, and the courts must subject the State’s contentions to genuine scrutiny

rather than the scrutiny of the rubber stamp.” Id. at 755 (Young, J., concurring). The majority

held,

We certainly do not condone or make light of the potential, highlighted by Father,
for the Department to summarily dismiss all kinship placement options in a “quest
to punish a parent” rather than serve the best interest of the child. Such behavior
threatens to unjustifiably invade a parent’s due process rights and would violate
both federal and state law.

Id. at 748. Point being that In re J.W. was decided very nearly three years before the final

hearing in this case, which is plenty of time for the Department to acquaint itself with the

decision and pass along its lessons to field personnel. But in this case, the Department refused to

6
That said, my judicial antennae are raised and attuned to the Department purportedly abandoning ground O but in
actuality proceeding with the wolf of O in the sheep’s clothing of grounds D and E. See In re A.A., 670 S.W.3d 520,
531 (Tex. 2023) (“At trial, DFPS typically demonstrates a parent’s failure to comply with the service plan through
the testimony of the parent’s caseworker. In some cases, that could be a more straightforward path to a termination
judgment for DFPS than putting on witnesses to make a case of endangerment would be. The more straightforward
path is not always the right one, and our judicial antennae are raised and attuned to potential misuses of (O).”).
23
conduct the sort of home study that was actually done in In re J.W., and having refused to do a

home study, proceeded to pose the questions quoted at the outset, and more.7

Beyond In re J.W., there is another reason to believe the Department has a mistaken view

of the Department’s burden. A relatively new statute that the courts have yet to address, Section

161.001(f), requires that the Department prove not only the existence of grounds for termination,

but also that a “continuing danger” exists at the time the termination order is entered. TEX. FAM.

CODE ANN. § 161.001(f)(1). Other statutes factor into my assessment of whether there was a

continuing danger. For example, since September 1, 2021, the law has been that

[t]he Department of Family and Protective Services may not take possession of a
child under this subchapter based on evidence that the parent: . . (8) tested

7
Having denied the home study (and anything beyond supervised visitation in public places) the Department
nonetheless proceeded to repeatedly ask Father questions the Department already knew the answer to. Father
repeatedly answered those questions directly and concisely. This exchange is illustrative:

Q. All right. Have you had the opportunity -- because kids get sick. Have you had
the opportunity to take care of this child when she was sick in the middle of the night?
A. No.
Q. Have you had the opportunity to figure out how you are going to get her to the
doctor when you’ve got to be at work in 20 minutes?
A. To be honest, I’d just call in.
Q. But, I mean, have you actually had to do that with her?
A. Right.
Q. The answer is no, you haven’t had the chance to --
A. No. I haven’t had the chance, no.
Q. You haven’t had the chance to demonstrate that you can handle it if she got sick
at 3:00 in the morning or if she needed to go to the doctor and you needed to be at work in 15
minutes; correct?
A. Correct.
Q. All right. You haven’t had the opportunity to deal with her being sick for days
on end with explosive diarrhea, have you?
A. No.
Q. You haven’t had the opportunity to figure out, well, what do I do if she’s got to
be at her tumbling class at 4:30 and I don’t get off work until 4:00; correct?
A. Correct.
Q. Your activities with this child have, for the most part, been limited to what you
can do at a McDonald’s for two hours; correct?
A. Right.
24
positive for marihuana, unless the department has evidence that the parent’s use
of marihuana has caused significant impairment to the child’s physical or mental
health or emotional development.

TEX. FAM. CODE ANN. § 262.116(a)(8) (Supp.). It seems to me that when the Legislature said

marihuana use alone is not grounds for the Department to take possession of a child, the

Legislature trusted the courts to be able to put two-and-two together that marihuana use alone is

not grounds for the Department to take the more drastic action of termination. But in this case,

the briefing has raised the issue of “continuing danger,” and that is my main focus.8

Father testified that he had stopped using methamphetamine.9 That testimony was

substantiated by seven tests from December 28, 2023, to March 28, 2024, which were admitted

8
Father specifically raised Section 161.001(f) in his brief. In significant part, Father couched his argument in the
“reasonable efforts to return” language of Section 161.001(f). See TEX. FAM. CODE ANN. § 161.001(f). However,
Father raised “continuing danger” as part of his Section 161.001(f) argument. Father urges that “[t]he Department
presented no evidence that Father’s continued residence with fictive kin posed any danger to [Talia] . . . . The
Department refused to conduct a home study solely because Father lived there—without offering alternatives or
evidence that his presence endangered the child.” The Department responded: “[Father] cites to no authority to
support his apparent contention that the Department was required to address barriers to placement on behalf of him
and his relatives, and the Department is aware of none.” The Department cites Rule 38.1 of the Texas Rules of
Appellate Procedure and thereby hints that we should find briefing waiver by Father. It does not seem appropriate
to find briefing waiver by either party in a parental-rights termination case when, as is discussed herein (and as the
Department obliquely concedes), there is no case addressing the meaning of “continuing danger” in Section
161.001(f). See TEX. FAM. CODE ANN. § 161.001(f). It bears noting that the Department’s argument boils down to:
“Who says we have to show that there is a danger to Talia in the Father’s home?” Thus, from the briefs, I see the
need to determine whether, via Section 161.001(f)’s “continuing danger” element, the Legislature has said, “We
have, Department. That’s who.” See TEX. FAM. CODE ANN. § 161.001.
9
His testimony was as follows:

Q. (BY THE STATE:) Okay. Now, since this case began in November of 2023,
you have continued to use illegal drugs; correct?
A. There for a little bit after I got out, I did use marijuana a couple of times. I have
been clean off of methamphetamines going on this month, last year, for a whole year.
Q. Okay.
A. No usage at all.
....
Q. (BY FATHER’S COUNSEL:) Okay. So the last time you tested positive for
meth was November of 2023; is that correct?
A. Yes, ma’am.
25
into evidence.10 That was not the only substantiation. There was, to be sure, a presumed

positive for a missed test, in November 2024, but that was the only test he ever missed. There

were, however, other tests which the Department did not offer into evidence that were negative

for methamphetamine, including multiple tests in the months between the lone presumed positive

and the final hearing in May 2025.11 Robinson admitted as much. When asked, “When is the

last time, if you know, that [Father] tested positive for meth,” Robinson responded, “For meth, it

would have been back in November of 2023, I believe.” Consequently, Father’s testimony

regarding being off of drugs for “[a]bout a month and a half” was about marihuana, not

methamphetamine.12

Which means that the Department’s stated reason for refusing to conduct a home study,

while couched in terms of being about positive “drug” tests, was actually about marihuana and

Q. And according to the expert, all of the drug tests that were offered into evidence
today, except for that November 2023, were positive for marijuana, marijuana metabolite; is that
correct?
A. Yes, ma’am.
10
An appendix summarizing these test results as well as the test results of November 9, 2023, is attached to this
dissent.
11
These are discussed in Father’s brief on pages 23–24 and were testified to by Robinson at volume two of the
reporter’s record, pages 81 through 82 and 136.
12
His testimony was as follows:

Q. (BY THE STATE:) Are you drug-free now?
A. Yes, sir.
Q. How long have you been drug-free?
A. I’m going on a couple of month[s].
Q. Couple of months. Okay. This case has been going on for almost a year and a
half; correct?
A. Yes, sir.
Q. All right. And it is your testimony that you’ve been drug-free for a couple of
months; correct?
A. About a month and a half.
26
only marihuana. In other words, the Department sought marihuana-based termination despite

testifying that it does not typically seek marihuana-based removal.13 Save for father’s marihuana

use, this case comes close to the question left open by In re R.R.A.14

On the subject of “drugs,” I acknowledge that In re R.R.A. held, in part, that “[t]he family

service plan, which Father acknowledged at the outset, deemed a failure to test as a positive test.

With this testing information in the record, a factfinder could infer that Father used drugs while

his termination proceedings were pending.” In re R.R.A., 687 S.W.3d at 281. But there is more

to In re R.R.A. than that.

The totality of the facts here differ dramatically from those in In re R.R.A. There, “Father

used felony-level drugs as the primary caregiver of the children when there were no other

relatives willing to care for them.” Id. at 279 (emphasis added). Here, there is no evidence

whatsoever that Father was using felony drugs at the time the Department was refusing the home

study or the time of the final hearing. There, “Father had refused drug testing for nearly a year;

had stopped visiting the children and had not inquired about their well-being.” Id. at 281. Here,

Father had shown up for drug testing with such consistency that the Department did not contend

at trial that he was using methamphetamine. Here, Father showed up for visits with such

regularity that his daughter was excited to see him. There,

13
Galindo admitted as follows:

Q. (BY THE STATE:) Ms. Galindo, does that Department still routinely remove
children for marijuana use?
A. Not marijuana use by itself.
14
“Whether a parent whose drug use is ameliorated by completing court-ordered treatment could nonetheless have
his or her rights terminated under (D) and (E) without any evidence of additional endangering conduct is not before
us.” In re R.R.A., 687 S.W.3d at 280 n.55. Here, Father did so as to methamphetamine, but not marihuana.
27
[a]t or around that time [(first removal)], Father and the children were living in
Father’s car. Father’s homelessness and employment difficulties [had] a close
temporal relationship with his drug use, and a factfinder could reasonably infer
Father’s difficulties in providing shelter and support for his three very young
children were related to his drug use.

Id. at 279. Here, the evidence was both that Father was using marihuana and that during the

same time he remodeled a home to get it ready for his daughter.

The overall picture is what matters:

The court of appeals should not have ignored the aggregate weight of Father’s
ongoing drug use, homelessness, employment instability, and near-complete
abandonment of his children for the six months preceding trial. The trial court
reasonably could have inferred that this conduct, in the aggregate, endangered the
children’s physical and emotional well-being.

Id. at 281 (emphasis added).

Our review considers more than “drug” use:

While illegal drug use alone may not be sufficient to show endangerment, a
pattern of drug use accompanied by circumstances that indicate related dangers to
the child can establish a substantial risk of harm. A reviewing court should not
evaluate drug-use evidence in isolation; rather, it should consider additional
evidence that a factfinder could reasonably credit that demonstrates that illegal
drug use presents a risk to the parent’s “ability to parent.”

Id. at 278 (emphasis omitted) (quoting In re J.O.A., 283 S.W.3d at 345).

Which brings me to the new requirement of “continuing danger.”

When the Legislature enacted Section 161.001(f), the term “continuing danger” was

already part of Texas law. But, in the prior law, the term “continuing danger” was accompanied

by the term “a substantial risk of,” and it was used in conjunction with a lower burden of proof

applicable at an earlier stage of proceedings. From at least as far back as 2001 to the present,

28
Section 262.201(g)(3) of the Texas Family Code, and its predecessor, Section 262.201(b)(3),

have provided that

at the conclusion of the full adversary hearing, the court shall order the return of
the child to the parent . . . unless the court finds sufficient evidence to satisfy a
person of ordinary prudence and caution that . . . reasonable efforts have been
made to enable the child to return home, but there is a substantial risk of a
continuing danger if the child is returned home.

TEX. FAM. CODE ANN. § 262.201(g)(3) (emphasis added).15

By contrast, the “continuing danger” of Section 161.001(f) is expressly subject to the

higher “clear and convincing” burden of proof, and the Legislature left out “a substantial risk of”

as a preceding modifier:

(f) In a suit for termination of the parent-child relationship filed by the
Department of Family and Protective Services, the court may not order
termination of the parent-child relationship under Subsection (b)(1) unless the
court finds by clear and convincing evidence and describes in writing with
specificity in a separate section of the order that:

(1) the department made reasonable efforts to return the child to the
parent before commencement of a trial on the merits and despite those
reasonable efforts, a continuing danger remains in the home that prevents
the return of the child to the parent.

TEX. FAM. CODE ANN. § 161.001(f)(1) (emphasis added).

15
For predecessor statutes, see Act of May 30, 1999, 76th Leg., R.S., ch. 1390, § 39, 1999 Tex. Gen. Laws 4696,
4706, amended by Act of May 10, 2001, 77th Leg., R.S., ch. 306, § 1, 2001 Tex. Gen. Laws 577; Act of May 22,
2001, 77th Leg., R.S., ch. 849, § 4, 2001 Tex. Gen. Laws 1693, 1694; Act of May 29, 2005, 79th Leg., R.S., ch. 268,
§ 1.34(a), 2005 Tex. Gen. Laws 621, 633; Act of May 27, 2009, 81st Leg., R.S., ch. 856, § 2, 2009 Tex. Gen. Laws
2113; Act of May 20, 2013, 83d Leg., R.S., ch. 810, § 9, 2013 Tex. Gen. Laws 2026, 2029; Act of Mar.26, 2015,
84th Leg., R.S., ch. 1, § 1.163, 2015 Tex. Gen. Laws 1, 38; Act of May 12, 2015, 84th Leg., R.S., ch. 128, § 3, 2015
Tex. Gen. Laws 1132, 1133; Act of May 23, 2015, 84th Leg., R.S., ch. 338, § 4, 2015 Tex. Gen. Laws 1523, 1524;
Act of May 26, 2015, 84th Leg., R.S., ch. 697, § 1, 2015 Tex. Gen. Laws 2173; Act of May 24, 2017, 85th Leg.,
R.S., ch. 317, § 20, 2017 Tex. Gen. Laws 612, 619; Act of May 28, 2017, 85th Leg., R.S., ch. 910, § 13, 2017 Tex.
Gen. Laws 3706, 3709; Act of May 20, 2019, 86th Leg., R.S., ch. 375, § 2, 2019 Tex. Gen. Laws 679; Act of
May 21, 2019, 86th Leg., R.S., ch. 467, § 7.004, 2019 Tex. Gen. Laws 909, 928; Act of May 22, 2019, 86th Leg.,
R.S., ch. 1294, § 7, 2019 Tex. Gen. Laws 3817, 3820; Act of Apr. 28, 2021, 87th Leg., R.S., ch. 8, §§ 7, 13(3), 2021
Tex. Gen. Laws 10, 13, 18; Act of May 23, 2021, 87th Leg., R.S., ch. 1047, § 7, 2021 Tex. Gen. Laws 2788, 2791.
29
Consequently, the “continuing danger” requirement of Section 161.001(f) has some real

bite. The Legislature withheld from the courts the power to terminate (“may not order

termination”) unless this new “continuing danger” requirement is met. TEX. FAM. CODE ANN.

§ 161.001. It is a new requirement because “continuing danger” is now subject to a higher

burden of proof, with a concomitant more stringent standard of appellate review. 16 It is also a

new requirement because it is no longer “a substantial risk of continuing danger.” TEX. FAM.

CODE ANN. § 262.201(g)(3).

Now it is “continuing danger,” period.

I come to this conclusion based on this principle of statutory construction: “‘[E]very

word of a statute must be presumed to have been used for a purpose. Likewise, we believe every

word excluded from a statute must also be presumed to have been excluded for a purpose.’”

Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) (emphasis

added) (quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)). “It

follows, then, that ‘[w]hen the Legislature employs a term in one section of a statute and

excludes it in another section, the term should not be implied where excluded.’” City of

Richardson v. Oncor Elec. Delivery Co. LLC, 539 S.W.3d 252, 260–61 (Tex. 2018) (alteration in

original) (emphasis added) (quoting Laidlaw Waste Sys., 904 S.W.2d at 659).

16
Id.; D.V. v. Tex. Dep’t of Fam. & Protective Servs., No. 24-0840, 2025 WL 3038976, at *3 (Tex. Oct. 31, 2025)
(“Parents . . . benefit from an otherwise-inapplicable elevated standard of appellate review.”); In re C.C., 720
S.W.3d at 49–50 (Tex. App.—Texarkana 2025, no pet.).
30
But this is not a settled question. The Texas Supreme Court has not ruled on the meaning

of “a substantial risk of continuing danger” at the removal and adversary hearing stage. 17 Nor

has the Texas Supreme Court yet spoken to any aspect of Section 161.001(f), including

“continuing danger” uncoupled from “a substantial risk of.”

This leaves inferior courts with a problem of statutory construction regarding the

interrelation of “continuing danger” and “endanger.” “When the Legislature uses substantially

the same words and phrases in a statute, subsequent uses of that same word in the same subject

area ordinarily carry the same meaning.” In re R.R.A., 687 S.W.3d at 277. In 1987, the Texas

Supreme Court considered the meaning of “endangers” as it appeared in a statutory termination

ground of the time that would carry forward into the present as grounds (D) and (E). Boyd, 727

S.W.2d at 533; In re R.R.A., 687 S.W.3d at 277 (“the Court interpreted ‘endanger’ for grounds

(D) and (E) in Boyd.”) The Boyd court rejected a lower court holding “that danger cannot be

inferred from parental misconduct.” Id. It appears then that, to some extent, danger can be

inferred. See id. The court went on to hold that

“endanger” means more than a threat of metaphysical injury or the possible ill
effects of a less-than-ideal family environment, it is not necessary that the
conduct be directed at the child or that the child actually suffers injury. Rather,
“endanger” means to expose to loss or injury; to jeopardize.

17
There is a Texas Supreme Court decision that has a lone mention of “substantial risk of continuing danger.” In re
E.C.R., 402 S.W.3d 239, 249 (Tex. 2013). But that was in the context of determining the factual basis for removal,
to assess whether a ground O statutory basis for termination had been satisfied. Id. at 242–43.
31
Id. (emphasis added) (citation omitted). In other words, some degree of risk is inherent in the

word “danger.” See id. This raises the question of the degree of jeopardy that would rise above

that which is merely possible or metaphysical. See id.

In 2024 and again in 2025, the Texas Supreme Court revisited the meaning of “endanger”

and summarized the holding of Boyd as involving the concept of “substantial risk.” In re R.R.A.,

687 S.W.3d at 277 (citing Boyd, 727 S.W.3d at 534) (“A factfinder may infer endangerment

from ‘a course of conduct’ that presents substantial risks to the child’s physical or emotional

well-being—the focus of grounds (D) and (E)—or to the child’s health and safety—the focus of

ground (P).”); see In re N.L.S., 715 S.W.3d at 764 (“The proper inquiry is thus whether there is

evidence that Father exhibited a pattern of behavior presenting a substantial risk of harm to

N.L.S.” (emphasis added)).

The conundrum is now apparent: in 2024 and 2025 the Texas Supreme Court expressed

endangerment in terms of “substantial risk,” but in the 2023 creation of Section 161.001(f), the

Texas Legislature severed “substantial risk” from “continuing danger.” However, by removing

“substantial risk” from Section 161.001(f) in 2023, the Legislature was not contradicting the

Texas Supreme Court, because the court did not express “endanger” in terms of “substantial

risk” until 2024 and 2025. Likewise, the Texas Supreme Court did not speak to Section

161.001(f) in 2024 and 2025 because the petitions for removal in those cases had been filed

before the effective date of Section 161.001(f). See In re R.R.A., 687 S.W.3d at 272 (removal in

2020); In re N.L.S., 715 S.W.3d at 762 (removal in 2021).

32
Therefore, inferior courts are not put to the choice of following the Texas Supreme Court

or the Texas Legislature. There is a way to read Section 161.001(f) that gives effect to the intent

of the Legislature while remaining faithful to the decisions of the Texas Supreme Court.

First, I believe that severing “a substantial risk of” from “continuing danger” in Section

161.001(f) expresses the Legislature’s intent to distinguish the comparatively lower requirements

placed on the Department by Section 262.201(g)(3) from the greater requirements of Section

161.001(f). The former is at an earlier stage of the proceedings, when the Department’s

investigation and attempts to return child to the parent are underway. The latter is at the final

hearing, when the stakes are higher and the Department has had time to develop the case for

termination, if such a case can be made.

Second, I believe that “danger” in Section 161.001(f) can remain consistent with the

Texas Supreme Court’s holding regarding the meaning of “endanger.” But that is “danger,” not

“continuing danger.” The Texas Supreme Court has not yet spoken to “continuing.” I believe

that “continuing” does some serious work. It serves to focus the inquiry on the here and now.

By focusing the timeframe that can be considered, a byproduct of “continuing” is that it sharpens

the focus on both the degree of harm and degree of risk being put forward as a justification for

the civil death penalty, which is to say that while the same considerations regarding “danger”

apply for the termination grounds of Sections 161.001(b)(1) and (f)(1), I believe that the

Legislature meant to impose new requirements via Section 161.001(f)(1). If not, why did the

Legislature bother? See Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 55 (Tex. 2014)

33
(“[W]e presume the Legislature does not impose meaningless requirements as part of its

lawmaking function.”).

The appellate cases ruling on Section 161.001(f) are very sparse, and as best I can tell,

this Court is the first to squarely address the “continuing danger” requirement. There are a

number of cases mentioning Section 161.001(f), but noting that the statute did not apply because

the petitions for terminations in those cases were filed before the effective date. 18 There are a

few cases discussing the degree of specificity in the trial court’s order, without speaking to the

meaning of “continuing danger” in Section 161.001(f).19 Another case has spoken to

“reasonable efforts at return.”20

There is an appellate case which addressed Section 161.001(f) and included “continuing

danger” in its holding. See In re M.N.M., 708 S.W.3d at 332 (“Given the unique circumstances

of this case, we conclude that the trial court could have formed a firm conviction or belief that

the Department made reasonable efforts to return [the child] to [the mother and father], but a

continuing danger prevented the child’s return.”).

18
See, e.g., In re Z.K.L., No. 06-25-00003-CV, 2025 WL 1021490, at *3 (Tex. App.—Texarkana Apr. 7, 2025, no
pet.) (mem. op.); see also In re J.S., No. 11-25-00079-CV, 2025 WL 3095495, at *7 (Tex. App.—Eastland Nov. 6,
2025, no pet.) (mem. op.); In re E.R.M., No. 05-25-00678-CV, 2025 WL 2898005, at *4 n.2 (Tex. App.—Dallas
Oct. 10, 2025, no pet.) (mem. op.); In re E.C.-L.H.-D., No. 07-24-00190-CV, 2024 WL 4692126, at *4 (Tex. App.—
Amarillo Nov. 5, 2024, pets. denied) (mem. op.).; In re Z.E.C., No. 08-23-00282-CV, 2024 WL 779616, at *9 (Tex.
App.—El Paso Feb. 26, 2024, no pet.) (mem. op.); In re J.S., 687 S.W.3d 541, 546 (Tex. App.—Eastland 2024, no
pet.).
19
See, e.g., In re M.B., No. 14-25-00418-CV, 2025 WL 3275376, at *7 (Tex. App.—Houston [14th Dist.] Nov. 25,
2025, no pet.); In re Y.K., 722 S.W.3d 273, 279–81 (Tex. App.—Fort Worth 2025, no pet.).
20
In re Z.K., No. 14-25-00231-CV, 2025 WL 2473254, at *8 (Tex. App.—Houston [14th Dist.] Aug. 28, 2025, pet.
denied) (mem. op.).
34
That case, however, focused on “reasonable efforts at return” in a way that was not

intertwined with “continuing danger.” Id. at 330 (“Section 161.001(f) requires that the

Department put forth reasonable efforts to return the child before trial, not between filing the

original petition and trial.”); id. at 327 (“Section 161.001(f): ‘Reasonable Efforts to Return the

Child’”).

That case presents a conflict of outcome with this case. The “unique circumstances” of

that case stand in stark contrast to the circumstances here: “Because [the father and mother] had

no housing at the time, they lived in [the paternal great-grandmother’s] home with the child.”

Id. at 326 (emphasis added). In other words, this is another example of the Department

attempting something there that they refused to try here. See id. The attempt in that case did not

work out for many reasons. For one, the paternal great-grandmother “was the designated safety

monitor charged with twenty-four-hour supervision of the child,” but the “Department supervisor

. . . witnessed [father and mother] with [the child] at the store without [the paternal great-

grandmother] in violation of the safety plan.” Id. What is more, the child tested positive for

“marihuana metabolite” at a level “indicative of continued marihuana exposure.” Id. Even then,

the attempt continued: “[T]he Department did not seek removal until . . . after [father and

mother] were arrested for theft.” Id. at 326–27. The father and mother had the child with them

when “they were caught shoplifting.” Id. at 327. Both the father and mother were already on

community supervision resulting from state jail felon(ies). Id. For each of them, community

supervision was revoked, resulting in state jail confinement. Id. “[I]ncarceration rendered them

physically unable to care for the child, and they had no home in which the child could reside

35
during their absence.” Id. at 332. The great-grandmother was eliminated as an option “due to

her repeated inability to supervise the child or keep her from ingesting marihuana prior to

removal,” and another family member was eliminated “based on her criminal history and

previous involvement with the Department.” Id.

Conclusion

The meaning of Section 161.001(f) matters. For this Father, what evidence can be used

against him to show a Section 161.001(f) continuing danger and what weight should that

evidence be given? I do not espouse any arbitrary temporal cutoff. The child’s circumstances

and the father’s conduct, even when the child was in utero, would count in the balance. But to

give effect to “continuing,” what has happened before should be attenuated by what has

happened since, and a greater emphasis should be placed on the circumstances at the time of the

final hearing. At the time of the final hearing, Father and his daughter were bonded. Father had

consistently shown up for visits with the child. The child was happy with her Father. Father,

regrettably, was continuing to test positive for marihuana. But Father, to his credit, was making

a concerted and successful effort to avoid using methamphetamine. On this score, I would

consider the deemed positive test, but I would give greater weight, for purposes of the continuing

danger review, to the consistency of actual tests showing no methamphetamine use and the lack

of evidence of methamphetamine in the months before the final hearing.

Significantly, there is no testimony that Father himself exposed the child to marihuana.

There was an early visit where Father brought a friend whom the Department’s witness said

smelled of marihuana. That friend never came back. The report of a marihuana odor regarding

36
the friend is significant, because it shows the Department’s witness could smell it and would

have reported it if Father had smelled marihuana during his visits. There is no such testimony in

the record, which shows that while Father did not quit using marihuana outright, he was able to

avoid using it when and before visiting his daughter.

Father had a home for his daughter, a home that the Department refused to consider. On

these facts, I would reverse termination. Regardless of his past faults and his ongoing failings, I

see a father who is trying.

“Because termination is always the last resort, it is to be hoped that the department can

abandon a request for termination in many cases.” D.V., 2025 WL 3038976, at *5. I believe this

is, or could have been, a case where a solution less drastic than termination could have been

found. Father’s appellate brief essentially asked, “In light of Section 161.001(f) where is the

continuing danger in the home that prevented the return of this child?” The Department

answered a question with a question: “Who says we have to show that?”21

I believe the Department’s question deserves an answer. I believe that answer is: “The

Texas Legislature, that’s who.”

Accordingly, I respectfully dissent.

Jeff Rambin
Justice

Date Submitted: August 25, 2025
Date Decided: December 12, 2025

21
See discussion of the parties’ briefs, supra note 8.
37
APPENDIX TO DISSENTING OPINION

Exhibit Collection Date Result

P-11 November 9, 2023

Urine

(3 RR 1436)
(3 RR 1438)
(3 RR 1560)
(2 RR 63)
(Dept. Br. 23-24)

38
P-12 November 9, 2023

Hair

(3 RR 1586)
(3 RR 1588)
(3 RR 1720)
(2 RR 64)
(Dept. Br. 23-24)

P-13 December 28, 2023

Urine

(3 RR 1744)
(3 RR 1746)
(3 RR 1820)
(2 RR 64-65)
(Dept. Br. 23-24)

P-14 January 11, 2024

Urine

(3 RR 1846)
(3 RR 1848)
(3 RR 1946)
(2 RR 65-66)
(Dept. Br. 23-24)

39
P-15 February 8, 2024

Hair

(3 RR 1952)
(3 RR 1954)
(3 RR 2052)
(2 RR 66)
(Dept. Br. 23-24)

40
P-16 February 8, 2024

Urine

(3 RR 2076)
(3 RR 2078)
(3 RR 2151)
(2 RR 66-67)
(Dept. Br. 23-24)

P-17 February 22, 2024

Urine

(3 RR 2176)
(3 RR 2178)
(3 RR 2254)
(2 RR 67-68)
(Dept. Br. 23-24)

41
P-18 March 7, 2024

Urine

(3 RR 2280)
(3 RR 2282)
(3 RR 2357)
(2 RR 68-69)
(Dept. Br. 23-24)

42
P-19 March 28, 2024

Urine

(3 RR 2382)
(3 RR 2384)
(3 RR 2458)
(2 RR-69)
(Dept. Br. 23-24)

43