In the Interest of A.R. and K.G., Children v. the State of Texas

In the Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-26-00075-CV IN THE INTEREST OF A.R. AND K.G., CHILDREN On Appeal from the County Court at Law Bowie County, Texas Trial Court No. 23C1140-CCL Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens Concurring Opinion by Justice Rambin  MEMORANDUM OPINION The Department of Family and Protective Services filed a petition to terminate Father’s parental rights to his child, A.R.1,2 The trial court terminated Father’s parental rights after finding that (1) he had “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger[ed] the physical or emotional well-being of the child,” (2) he had “constructively abandoned the child,” and (3) termination of Father’s parental rights was in the child’s best interests. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (N), (b)(2) (Supp.). On appeal, Father challenges the trial court’s finding terminating his parental rights under Section 161.001(b)(1)(D) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Because Father does not challenge the predicate finding under Section 161.001(b)(1)(N) of the Texas Family Code, we affirm the trial court’s judgment. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N).3 Even so, because we do not find that legally and factually sufficient evidence supports the trial court’s finding under ground (D), we sustain Father’s sole issue on appeal and modify the trial court’s judgment to delete the ground (D) finding. I. Evidence at Trial Lavada McClinton, a permanency specialist with 4Kids4Families, testified that she became involved in the case in May 2024, she had “never even met [Father],” and Father did not 1 We use initials or pseudonyms to protect the identity of the child. See TEX. R. APP. P. 9.8. 2 Another child, K.G., was involved in the underlying termination proceedings, but Father was not alleged to be the father of K.G. 3 On appeal, Father also does not challenge the trial court’s best-interest finding. 2 work any services nor did he drug test. She explained that she had attempted to send letters to Father monthly, but that she was never given a permanent address for him. McClinton testified that she was concerned about Father’s stability, drug use, and allegations of domestic violence. She explained that the affidavit of removal noted Father as the offending parent for removal, making specific mention of his drug-use and domestic-violence history. However, she did not know whether Father had ever been convicted of domestic violence or any other crimes and could not say that Father had ever failed any drug tests. She also testified that A.R. was safely placed with a foster placement, was bonded to the foster family, was with his sibling, and that the foster family wanted to adopt both children. Joey Keilbach, a Bowie County Court Appointed Special Advocate (CASA) coordinator, stated that he became involved at the time of A.R.’s removal. He described A.R., who was four years old at the time of the final hearing, as a funny, very loving, “very, very smart” boy. Keilbach testified that A.R. was bonded to his brother, his caregivers, and the children in the home. During the duration of the case, he noted that he had minimal contact with Father. Keilbach noted that the concerns about reunification with Father were domestic violence, drug use, and his arrest history during the pendency of the case. Father testified on his own behalf, explained that he was sixteen years old when A.R. was born, and said that the case began approximately two years after A.R.’s birth. He stated that he has lived at the same address since he was a young child, that it has always been his permanent address, and that he provided it to the Department. He then explained that when his grandmother 3 died, the house became vacant, but that it is still his address. He has not seen A.R. during the pendency of the case, but Mother checked in and would let him know how he was doing. Father explained that he missed court dates because he was trying to avoid criminal-legal issues that he has since resolved. Father testified that he never had any drug charges filed against him. Rather, his jail time during the case was all due to violations of probation, which he was on as a result of a family-violence charge. He stated that he had two charges of domestic violence, one he was then on probation for, and the other was “thrown away.” After all of the testimony, the trial court found that the Department met its burden of proof, that termination was in A.R.’s best interests, and subsequently terminated Father’s parental rights to A.R. under Section 161.001(b)(1) grounds (D) and (N). II. Standard of Review “Proceedings to terminate the parent–child relationship implicate rights of constitutional magnitude that qualify for heightened judicial protection.” In re A.C., 560 S.W.3d 624, 626 (Tex. 2018). [T]he government may not sever the legal ties between parents and children without clearing a high bar. A court may terminate a parent’s right to parent [his] child if it finds by clear and convincing evidence both that (1) the parent committed an act prohibited by Section 161.001(b)(1) of the Texas Family Code and (2) termination is in the best interest[s] of the child. In re K.N., 741 S.W.3d 165, 178 (Tex. 2026). “Clear and convincing evidence” is “the measure or degree of 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.” TEX. FAM. CODE ANN. § 101.007; In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) 4 (per curiam). Therefore, 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.” In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). “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 915, 920 (Tex. App.—Texarkana 2015, no pet.) (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))). “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.)). “[T]he appellate standard for reviewing termination findings is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re A.C., No. 06-25-00084-CV, 2026 WL 878798, at *2 (Tex. App.— Texarkana Mar. 31, 2026, pets. denied) (mem. op.) (alteration in original) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “Both legal and factual sufficiency review deal with whether ‘a reasonable factfinder could form a firm belief or conviction,’ but there is a difference between legal and factual sufficiency.” Id. (quoting In re A.C., 560 S.W.3d at 631). For legal sufficiency, “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” termination of the parent-child relationship was in the best interests of the child. In re L.E.S., 471 S.W.3d at 920 (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) 5 (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). By comparison, when reviewing “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. at 25)). “If, in light of the entire record, the disputed evidence that a reasonable factfinder could 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 256, 266 (Tex. 2002)). To make this determination, we “undertake ‘“an exacting review of the entire record with a healthy regard for the constitutional interests at stake.”’” Id. (quoting In re A.B., 437 S.W.3d at 503 (quoting In re C.H., 89 S.W.3d at 26)). “In conducting that review, we emphasize that the clear-and-convincing-evidence standard is unforgiving. It requires a degree of proof that elicits ‘a firm belief or conviction as to the truth of the allegations sought to be established.’” 6 In re K.N., 741 S.W.3d at 178 (quoting In re G.M., 596 S.W.2d 846, 847 (Tex. 1980) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam))). A. Evidence Insufficient to Support a Finding of Termination Under Ground (D) In his sole complaint on appeal, Father asserts that the evidence was insufficient to support termination under ground (D), which authorizes termination if a parent “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). We note that the trial court also terminated Father’s parental rights pursuant to statutory- predicate ground (N). See TEX. FAM. CODE ANN. § 161.001(b)(1)(N) (authorizing termination if parent “constructively abandoned the child”). “Only one predicate [ground] finding under Section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child’s best interest.” In re N.G., 577 S.W.3d at 232 (quoting In re K-A.B.M., 551 S.W.3d 275, 284 (Tex. App.—El Paso 2018, no pet.)). On appeal, Father does not challenge the trial court’s finding with respect to predicate ground (N). By not challenging the trial court’s findings under ground (N), Father failed to challenge all independent grounds listed in the termination order. One unchallenged ground is sufficient to support a trial court’s statutory-violation finding. See TEX. FAM. CODE ANN. § 161.001(b)(1). As such, we affirm the trial court’s judgment as to termination of Father’s parental rights under predicate ground (N). B. Ground (D) Even so, the Texas Supreme Court, in In re N.G., stated that: 7  When a parent has presented the issue on appeal, an appellate court that denies review of a [S]ection 161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent’s only chance for review of a finding that will be binding as to parental rights to other children. In re N.G., 577 S.W.3d at 235. The Texas Supreme Court held “that due process and due course of law requirements mandate that an appellate court detail its analysis for an appeal of termination of parental rights under [S]ection 161.001(b)(1)(D) or (E) of the [Texas] Family Code.” Id. at 237. Accordingly, due process requires us to address Father’s challenge to the ground (D) finding. The trial court found that Mother knowingly placed or knowingly allowed R.W. to remain in conditions or surroundings that endangered his physical or emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D). 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 the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). “‘[E]ndanger’ 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 796, 803 (Tex. 2012). “‘[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. 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 [his] physical or emotional 8 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 C.J.B., No. 05-19-00165-CV, 2019 WL 3940987, at *6 (Tex. App.—Dallas Aug. 21, 2019, no pet.) (mem. op.)). “As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child.” In re A.V., No. 04-26-00125-CV, 2026 WL 2333607, at *4 (Tex. App.—San Antonio Aug. 12, 2026, pet. denied) (mem. op.) (quoting In re J.O.A., 283 S.W.3d 336, 345 n.4 (Tex. 2009)). “Domestic violence, want of self- control, and propensity for violence may be considered as evidence of endangerment.” Id. (quoting In re P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th Dist.] 2019, no pet.)). Moreover, “abusive or violent conduct by a parent or other resident of a child’s home can produce an environment that endangers the physical or emotional well-being of a child.” In re L.E.S., 471 S.W.3d at 925 (quoting In re B.E.T., No. 06-14-00069-CV, 2015 WL 495303, at *5 (Tex. App.—Texarkana Feb. 5, 2015, no pet.) (mem. op.)). As a result, “evidence of domestic violence is [] relevant to endangerment, even if the violence is not directed at the child.” In re A.V., 2026 WL 2333607, at *4 (alteration in original) (quoting J.G. v. Tex. Dep’t of Fam. & Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.) (citing In re P.W., 9 579 S.W.3d at 727 (“A parent’s abusive or violent conduct can produce a home environment that endangers a child’s well-being.”))). Additionally, “[e]vidence that a [parent] has engaged in abusive and violent conduct in the past permits an inference that the [parent] will continue to engage in violent behavior in the future.” In re M.D.M., 579 S.W.3d 744, 765 (Tex. App.—Houston [1st Dist.] 2019, no pet.). Evidence of domestic violence, therefore, can support findings under both grounds (D) and (E). See J.G., 592 S.W.3d at 524 (explaining that “domestic violence ‘may produce an environment that endangers the physical or emotional well-being of a child’ supporting termination under subsection (D)” (quoting In re P.W., 579 S.W.3d at 727)). Here, the testimony shows that the Department had concerns regarding Father’s drug use and his multiple arrests for domestic violence, including one charge for assaulting Mother. As to the Department’s concerns about Father’s drug use, Father argues that there was little evidence that would show he had used drugs in a way that endangered A.R. prior to removal. As to the Department’s concerns about domestic violence, Father argues that even though the record clearly reflects his arrest and incarceration for assaultive conduct on Mother, the quality of the Department’s evidence “was not sufficient for the trial court to find by clear and convincing evidence [that] he had endangered A.R. within the meaning of subsection (D).” Regarding Father’s alleged drug use, we find the evidence to be insufficient. McClinton admitted that she had limited access to “the system” prior to her involvement in the case. McClinton also admitted that she did not know if Father took any drug tests, and she could not say he failed any drug tests. Father testified that he did take a drug test but was never notified of 10 the results. Moreover, the Department did not present any evidence of drug use, failed drug tests, or criminal history related to drug use. The evidence related to the Department’s drug-use concerns was, therefore, insufficient to support termination under ground (D). During the final hearing, Father admitted that he had been charged with domestic violence twice. Father testified that one of the charges was filed by his “auntie” because she didn’t want Father in her house. However, there was no testimony offered that Father was violent toward his aunt. Father also testified that charge was dropped, and the Department offered no evidence to the contrary. There was no other evidence admitted regarding that alleged charge. As for the second domestic-violence charge, Father testified that the charge was filed by his “baby momma.” Father testified that he was on probation for that charge and had completed his probation. However, other than this scant testimony, there was no evidence presented at trial regarding when the incident occurred, where the incident occurred, or what happened during the incident. Moreover, there was no evidence about whether the incident was in the home where Mother lived with the child, or if it even occurred in the presence of A.R. Furthermore, there was no evidence of other domestic-violence incidents between Mother and Father, or that A.R. remained in conditions or surroundings that endangered his physical or emotional well-being. See In re R.W., 627 S.W.3d 501, 513 (Tex. App.—Texarkana 2021, no pet.). Finally, no records regarding the arrest, charges, any plea deal, or probation were offered into evidence. We also note that there is a suggestion—in the record of another hearing in this case— that the trial court was the same trial court that presided over the criminal-domestic violence 11 charge that is the subject of ground (D). There are also allegations of domestic violence in the affidavit supporting removal. Even so, “[t]he only evidence that can support the trial court’s order is [the] evidence admitted at trial.” In re X.M.B.E., 706 S.W.3d 714, 720 n.5 (Tex. App.— Eastland 2025, no pet.) (second alteration in original) (quoting In re E.F., 591 S.W.3d 138, 142 n.4 (Tex. App.—San Antonio 2019, no pet.)). As such, we cannot consider that information in our review of this case. Because of the Department’s failure to include specifics in the record of the final hearing by a request for judicial notice, testimony, or admission of exhibits regarding allegations of drug use or domestic-violence charges against Father, we conclude that the Department failed to sustain its burden to support a ground (D) termination. Considering the entire record, we conclude that the evidence is both legally and factually insufficient to support the trial court’s findings by clear and convincing evidence under ground (D). We, therefore, sustain this issue. III. Conclusion Although we conclude that the evidence was insufficient to terminate Father’s parental rights under ground (D), we affirm the trial court’s judgment as to termination of Father’s parental rights under predicate ground (N). We, therefore, modify the trial court’s judgment to delete the ground (D) finding and affirm the judgment, as modified. See TEX. R. APP. P. 43.2(B) (empowering courts of appeals to “modify the trial court’s judgment and affirm it as modified”). Scott E. Stevens Chief Justice 12  CONCURRENCE What is going on here? Father’s appeal did not contest termination on Ground N. Nor did Father contest that termination is in A.R.’s best interests. Because Father conceded termination based on Ground N, the Department had what it needed to affirm the termination of Father’s rights to A.R., and to give the assurance of finality to the family, that thankfully and commendably, adopted him. But that was not enough for the Department. Even after that concession, the Department sought to affirm termination on Ground D. Could this Court have said that, given the outcome based on Ground N, there is no need to address Ground D? No. Ground D is an endangerment ground for termination that “has consequences for termination of parental rights as to children in a future proceeding.” In re Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019) (per curiam) (emphasis added); see TEX. FAM. CODE. ANN. § 161.001(b)(1)(M) (Supp.).4 The ongoing effect of a Ground D finding is so pronounced that “due process and due course of law require that the court of appeals review the legal and factual sufficiency of the evidence supporting a trial court’s order of termination under Subsections 161.001(b)(1)(D) . . . when challenged on appeal.” In re M.P., 4 The ongoing effect of an endangerment finding is not confined to its use under Ground M. “[E]ndangering conduct may include the parent’s actions before the child’s birth, while the parent had custody of older children . . . .” In re J.O.A., 283 S.W.3d at 345(citing Boyd, 727 S.W.2d at 533). Later the Texas Supreme Court said, “We agree that an offense occurring before a person’s children are born can be a relevant factor in establishing an endangering course of conduct . . . .” In re E.N.C., 384 S.W.3d at 804–05 (citation omitted) (citing In re J.O.A., 283 S.W.3d at 345). As for Ground M itself, “nothing in (M) suggest[ed] that prior (D) and (E) findings [had] a legal shelf-life under (M).” In re K.F., No. 07-20-00159-CV, 2020 WL 5901345, at *2 (Tex. App.—Amarillo Oct. 5, 2020, pet. denied) (mem. op.). However, in 2021, the Texas Legislature placed a one-year statute of limitations on the manner in which Ground M may be used. See TEX. FAM. CODE ANN. § 161.001(d-1) (Supp.); In re M.N.R., 719 S.W.3d 647, 656 n.8 (Tex. App.—San Antonio 2025, pet. denied). That is not, however, the same thing as limiting Ground M’s use to one year after an endangerment termination. See In re M.N.R., 719 S.W.3d at 656. 13 639 S.W.3d 700, 704 (Tex. 2022) (per curiam) (citing In re N.G., 577 S.W3d at 237; In re Z.M.M., 577 S.W.3d at 543). In my view, this is what is going on: The Department attempted to put a pre-emptive lifelong mark on a young father regarding any future children he might ever have. Was it proper for the Department to do this given the recent amendment to the Texas Constitution, recent changes enacted by the Texas Legislature, and recent decisions of the Texas Supreme Court? The Department did not even bother to make that case. That is why I write separately. I. Recent Texas Supreme Court Authority The Texas Supreme Court stated that The law demands that every parental-termination order satisfy the rigorous requirements of the clear-and-convincing evidence standard. Anything less offends not only our Constitution and [Texas] Family Code, but the innate “right and the corresponding responsibility” of parents “to direct their children’s upbringing and to be their children’s primary source of protection and guidance.” In re K.N., 741 S.W.3d at 172 (emphasis added) (quoting In re H.S., 741 S.W.3d 4, 8 (Tex. 2026)).5 This impacts what is required on appeal because appeal has always been about “review of the record evidence.” In re J.F.C., 96 S.W.3d at 266. In recent decisions, the Texas Supreme Court has emphasized this, and provided examples of the evidence required: Just as striking as what the record contains is what it does not contain. Despite knowing that it bore a heightened evidentiary burden that would be strictly scrutinized on appeal, the department offered little to none of the kind of evidence we would expect in a termination case based on endangerment: medical records, 5 See also In re N.G., 577 S.W.3d at 235 (citing TEX. CONST. art. I, § 19). 14  criminal histories, police reports, or drug-testing records. When a family’s continued existence is on the line and the department must produce clear and convincing evidence, Texas courts may not just presume that supporting evidence exists in some undisclosed location. In re H.S., 741 S.W.3d at 23 (second emphasis added).6 II. The Requirements of Ground D “[T]ermination under (D) requires that the child’s environment is a source of endangerment, and the parent’s conduct may create that dangerous environment.” In re C.E., 687 S.W.3d 304, 310 (Tex. 2024) (per curiam) (citation omitted).7 Prior to In re C.E., our Court’s precedent was that, for Ground D, “conditions or surroundings cannot endanger a child unless that child is exposed to them.” In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied). “As a general matter, [the Texas Supreme Court] agree[d] with that reasoning.” In re J.W., 645 S.W.3d at 749. III. The Record in This Case With recent Texas Supreme Court decisions in mind, let us revisit the facts in this record. At trial, McClinton testified about the affidavit of removal. But the Department did not offer the affidavit itself as evidence. Nor did the Department ask the trial court to take judicial notice of its contents. McClinton was not the affiant. Nor was she a percipient witness. McClinton was not the original caseworker. McClinton admitted that she had limited access to “the system” 6 Further, the Texas Supreme Court has kept its “judicial antennae” out for termination of parental rights because the parent did not dance to the Department’s tune, and the legislature has removed that ground for termination from the Texas Family Code. See In re A.A., 670 S.W.3d 520, 531 (Tex. 2023); In re J.Z.A., 738 S.W.3d 805, 807 (Tex. 2026) (per curiam) (citing In re A.A., 670 S.W.3d at 531). 7 Relatedly, “evidence that a parent will knowingly expose the child to a dangerous environment in the future, while relevant to a best-interest determination, is not proof that the parent has knowingly exposed the child to a dangerous environment in the past for Subsection (D) purposes.” In re J.W., 645 S.W.3d 726, 749 (Tex. 2022). 15 prior to her involvement in the case. McClinton admitted that she did not know whether Father had been convicted of domestic violence. More than that, McClinton testified that the affidavit could have been merely the recitation of allegations. As for what became of those allegations, the Department did not put into the record any judgment of conviction, transcript of testimony from a criminal trial, written judicial confession, or anything else setting forth the circumstances of the assault. Father admitted to being on probation for assault. But the Department did not bother to ask him any questions regarding the degree of the offense, its manner, or its location. Nor did the Department ask any questions tying that assault to the child’s environment.8 When asked on direct examination by the Department’s counsel why the Department sought to terminate Father’s rights to A.R., McClinton testified, It’s in the best interest of [A.R.]. I’ve had the case, like I said, since May of [2024], and I’ve never even met [Father]. I’ve had minimal contact with him at the beginning, and then last month he contacted me. But other than that, I’ve had no contact with him, no services, no drug tests, on [Mother] or [Father]. IV. The Department’s Brief The Department was a party to both In re H.S. and In re K.N. The Department’s brief in this case was filed after the decisions in In re H.S. and In re K.N. Though a party to both In re H.S. and In re K.N. and therefore fully aware of them, the Department did not bring these cases to this Court’s attention. These decisions bear on all termination cases because they go to how courts of appeal should review them. In re K.N., 741 S.W.3d at 178 (“In conducting that review, 8 See In re E.N.C., 384 S.W.3d at 804 (reversing a ground (E) finding where “[t]he only evidence concerning the conviction came from [that father’s] own brief testimony on direct examination”). 16 we emphasize that the clear-and-convincing-evidence standard is unforgiving.”). Though the Department sought to mark Father for life with an endangerment finding, the Department did not argue that the endangerment finding withstands scrutiny under In re H.S. and In re K.N. The Department faces the difficult task of dealing with children in difficult circumstances. But that is not license for the conduct the Department has engaged in here. See Tex. Dep’t of Fam. & Protective Servs. v. New Jersey, 644 S.W.3d 189, 193 n.2 (Tex. 2022) (“We encourage more prompt communication regarding such case-turning developments from all litigants, but particularly from a state agency that frequently appears in our courts.”). If the Department seeks relief that requires its briefing to omit controlling Texas Supreme Court authority contrary to the Department’s position, then perhaps the better course of action would be for the Department to forego seeking that relief. The Department’s brief does not contend that the removal affidavit is in evidence; the word “affidavit” appears nowhere in the Department’s brief. Nor does the Department’s brief contend that Father’s admission of an assault provided the details of the manner and whereabouts of the assault. Indeed, there is confusion about who the assault was committed against (the Department’s brief contends it was against Father’s aunt). Because the Department did not cite In re H.S., the Department’s brief does not explain how this record passes muster. See In re H.S., 741 S.W.3d at 23 (“[W]e would expect in a termination case based on endangerment: . . . criminal histories, police reports . . . . When a family’s continued existence is on the line and the department must produce clear and 17 convincing evidence, Texas courts may not just presume that supporting evidence exists in some undisclosed location.”).9 Thus, I join the Court in finding termination under Ground D to be unsupported on this record. The Court cited recent Texas Supreme Court authority in reaching that result. But that is not because the Department brought those decisions to our attention. The Court rightfully considered those decisions because, in termination cases, the Texas Supreme Court has tasked intermediate appellate courts with “undertak[ing] ‘an exacting review of the entire record with a healthy regard for the constitutional interests at stake.’” In re A.B., 437 S.W.3d at 503 (quoting In re C.H., 89 S.W.3d at 26); see In re C.C., 720 S.W.3d 41, 49 (Tex. App.—Texarkana 2025, no pet.) (“Therefore, we examine the constitutional foundation of the clear and convincing burden.”). V. The Department’s Briefing Raises Systemic Concerns First, the People of Texas recently “enshrine[d]” the rights and responsibilities of parents in our Constitution, observing that they “are deeply rooted in this nation’s history and traditions” and include both “the responsibility to nurture and protect the parent’s child and the corresponding fundamental right to exercise care, custody, and control” over the child. In re H.S., 741 S.W.3d 17 (alteration in original) (quoting TEX. CONST. art. I, § 37). The Texas Supreme Court considered speaking to the import of that constitutional amendment, but ultimately declined to do so on grounds that it is “a court of review, not of first view.” In re 9 Relatedly, the Department’s brief cites neither In re C.E. nor In re J.W., and therefore does not set forth how, under those decisions, an assault of indeterminate manner conducted anywhere (even outside of the home and outside of the presence of the child) exposes the child to a dangerous-home environment. 18 K.N., 741 S.W.3d at 179 (quoting 1 Coventry Ct., LLC v. Downs of Hillcrest Residential Ass’n, 728 S.W.3d 711, 715 (Tex. 2026) (per curiam)). “[The Texas Supreme] Court thus functions best when it reviews the decisions of lower courts that have already ‘test[ed] competing understandings.’” Id. (second alteration in original) (quoting Perez v. City of San Antonio, 711 S.W.3d 204, 204 (Tex. 2024) (Young, J., statement)). When the Department fails to cite recent and controlling authority to a court of appeals such as this Court, the process of testing competing understandings is limited at best. The court of appeals does its work as best it can in the murk and the dark. And the Texas Supreme Court is set up, in a very real way to be a court of first view after all, because if the Department saves its “best shot” for the Texas Supreme Court it will be a shot that was not tested in the lower court. Second, Merriam-Webster defines “bureaucracy” thusly: “a body of nonelective government officials.” Bureaucracy, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2003). In my view, the Department’s briefing is indicative of a bureaucracy which follows the law begrudgingly.10 There is a direct connection between the constitutional amendment and the People of the State of Texas; the People voted for it. Likewise, the People vote for legislators and judges. In my view, when the Department fails to cite controlling statutes or Texas Supreme Court authority, that thwarts the will of the People. 10 See In re D.T., 740 S.W.3d 929, 931 (Tex. 2026) (Sullivan, J., joined by Young J., concurring in the denial of petitions for review) (“But ignoring statutory requirements for orders that permanently sever one of the most important relationships recognized by law is a recurring problem for our State’s family courts. I write separately to remind them to pay careful attention to statutes—especially the ones that tell them how to do their jobs.”); In re K.L.B., 740 S.W.3d 927, 929 (Tex. 2026) (Sullivan, J., joined by Young J., concurring) (“Though the court of appeals reached the right decision here, I hope that, in the future, lower courts will take care not to rely on judicial opinions that’ve been abrogated by statute.”); see also In re R.J.G., 681 S.W.3d 370, 382 (Tex. 2023) (cautioning against elevating the “bureaucratic or technical” to something that supports termination). 19 VI. Conclusion The Texas Supreme Court stated, The desired outcome of [the Department’s] intervention is a family’s rehabilitation, the restoration of wayward parents to their proper roles, and the government’s exit from the family’s affairs. . . . The strong presumption is that termination is not in a child’s best interest, so a parental-termination order must always be a last resort and never a first impulse. In re H.S., 741 S.W.3d at 9. “In extreme cases, however, parents can forfeit their parental status altogether. When that happens, the government invokes the judicial process to pursue the termination of parental rights, after which parents and their children become strangers in the eyes of the law.” Id. With good reason then, it is said that termination of parental rights is “the ‘“death penalty”’ of civil cases.” In re J.W., 645 S.W.3d at 751 (quoting In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., joined by Devine, J., concurring)). We do not review the case the Department might have tried. In re H.S., 741 S.W.3d at 23. Maybe the Department could have questioned Father more thoroughly, and done so using records from the criminal case. It didn’t. The Texas Supreme Court recently said that when termination of parental rights is based upon a crime committed by the parent, the record evidence should include evidence such as “criminal histories[ or] police reports.” Id. This record does not have that. The Department was aware of In re H.S. but did not cite it. I have a problem with that. It should go without saying, but the Texas Supreme Court expects its decisions to be followed. In re K.N., 741 S.W.3d at 172 (“We trust that our decisions here and in [In re] H.S. 20 provide helpful guidance to our colleagues on the lower courts who confront countless heartbreaking cases of struggling, and sometimes broken, families.”). Thus, I close with a systemic risk presented by the Department’s briefing that is a corollary of the risks set out above. A swarm of intermediate court decisions from as far back as 1977 are not of much help unless the predicate is laid that they are still sound given intervening changes in the law. The Department cited more than forty such cases but, somehow,11 missed 2026 decisions of the Texas Supreme Court to which it was a party. I believe much good, and better results for all, would come from the Department citing recent Texas Supreme Court decisions when seeking to uphold terminations on appeal. 11 The Department has a stock standard of review section, as shown in the attached Appendix of recent Department briefs to this Court. The Department’s standard-of-review across multiple cases is very close to identical. It could accurately be described as copy-and-paste. For example, each of the excerpted briefs in the Appendix relies on