In the Interest of H.S., B.S., and M.S., Children

Supreme Court of Texas

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No. 24-0307

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In the Interest of H.S., B.S., and M.S., Children

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On Petition for Review from the

Court of Appeals for the Second District of Texas

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JUSTICE LEHRMANN, joined by Justice Bland and Justice Huddle,

dissenting in part.

The Court holds that termination of Father’s parental rights was

in the children’s best interest but that termination of Mother’s parental

rights was not. I agree that Father’s parental rights were properly

terminated, but I would hold that, under the proper standard of review,

legally sufficient evidence also supports the jury’s findings as to Mother.

Because the Court disregards considerable evidence supporting the

jury’s verdict and, in doing so, fails to properly defer to the jury’s role as

factfinder, I must respectfully express my dissent.

I. Background

In May 2022, Father physically assaulted Mother. During an

argument, Father “picked [Mother] up by the throat and slammed [her]

on top of his toolbox.” As the couple’s then-eight-year-old child watched,

Father used a hammer to hit himself on the head. Mother was able to

grab the kids and take them first to her mother’s house, then to her

friend’s, and finally to Missouri.

Unfortunately, this event was not an isolated one. Father has a

history of abusive, violent, and self-harming behavior in the home. In

one instance, Father sped a car towards the family’s home while the

children were inside; he stopped short of crashing into the home. In

three other separate incidents occurring while the children were in the

home, he “bashed” his head on a countertop, grabbed a gun and

threatened to shoot himself, and threatened to shoot himself with a nail

gun. Twice he attempted to hang himself—once in the couple’s bedroom

and once in the front yard.

After the May 2022 incident, Mother’s friend took her to file a

police report. That report prompted a Department investigation. Later,

Mother returned from Missouri with the children and met with a

Department investigator. Mother told the investigator that she believed

Father would eventually kill her; accordingly, she did not intend to

reunite with him. The Department assigned a Family-Based Safety

Services specialist and established a safety plan, which did not allow

Father to have unsupervised contact with the children. The specialist

discussed the safety plan with Mother and informed her that if she

violated it, the Department could seek to remove the children for their

safety. Mother agreed to the plan.

The next time the specialist attempted to schedule a visit, Mother

refused, insisting that the Department obtain a warrant to see the

children. Concerned about the children’s well-being, the Department

requested a welfare check. During that check, a police officer discovered

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that Father was back in the home, unsupervised, with the children. As

Mother had violated the safety plan, the children were removed from the

home.

Following removal, the Department worked with Mother and

Father to assign service plans. Among other requirements, the service

plans required both parents to maintain housing and transportation,

attend scheduled visits with the children, submit to random drug

testing, and participate in counseling. By the time of trial, neither

parent had completed their service plan. They refused drug testing

multiple times; when Mother did complete a drug test, she tested

positive for heroin, methamphetamine, amphetamines, and opiates.

The parents’ completion of their visitation requirements was

likewise problematic. According to the children’s attorney ad litem,

Mother was confrontational from the first visit, interrogating the

children to the point that “multiple people intervened . . . and tried to

redirect.” Eventually, the children’s therapist and attorney ad litem

requested suspension of visitation after law enforcement had to

intercede to “get [the parents] to leave.” Reportedly, Mother began

saying “derogatory terms” to the Department caseworkers in front of her

son, Henry. As a result, Henry became upset, and Mother and Father

“barricaded him” between themselves. The parents then began blaming

the Department for not allowing him to go home. After forty-five

minutes, the caseworkers called law enforcement. At that point, Mother

stated that she would not let Henry go—the police officer would have to

“yank him off of her.” After the police arrived, it took another hour to

calm Henry down and end the visit. This incident led the attorney ad

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litem to move to suspend visitation “until such time that more trauma

is not being caused,” and the trial court granted that motion.

The case proceeded to trial, during which both Father and Mother

admitted that they had endangered their children due to the violence in

their home. The jury found that the Department proved by clear and

convincing evidence that Mother and Father had engaged in conduct

satisfying three predicate grounds for termination and that termination

was in the children’s best interest. The trial court rendered judgment

accordingly, and the court of appeals affirmed.

II. Standard of Review in Parental Termination Cases

As the Court correctly highlights, the State must meet a

clear-and-convincing burden of proof at trial to terminate parental

rights. In re J.W., 645 S.W.3d 726, 741 (Tex. 2022); TEX. FAM. CODE

§ 161.001(b). That heightened burden requires us “to determine

whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266

(Tex. 2002). In making that determination, “we ‘look at all the evidence

in the light most favorable to the finding,’ ‘assume that the factfinder

resolved disputed facts in favor of its finding if a reasonable factfinder

could do so,’ and ‘disregard all evidence that a reasonable factfinder

could have disbelieved or found to have been incredible.’” J.W., 645

S.W.3d at 741 (quoting J.F.C., 96 S.W.3d at 266). But “we may not

disregard ‘undisputed facts that do not support the finding.’” Id.

(quoting J.F.C., 96 S.W.3d at 266).

I wholeheartedly agree with the Court that the Legislature’s

imposition of a clear-and-convincing burden, and the corresponding

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heightened standard of appellate review, reflects the constitutional

magnitude of the rights at stake. Ante at 18. 1 However, we must also

keep in mind “the required appellate deference to the factfinder.” J.W.,

1 The Court provides some helpful historical context for the termination

of parental rights in the United States. See ante at 19–20. I would add that

the state’s authority to intervene in the parent–child relationship began to

develop alongside the notion that children are not the “property” of their

parents and may not be treated as such. Vanessa L. Warzynski, Termination

of Parental Rights: The Psychological Parent Standard, 39 VILL. L. REV. 737,

741–43 (1994). To be sure, parental rights are rightly recognized as, among

other things, “essential,” Stanley v. Illinois, 405 U.S. 645, 651 (1972) (quoting

Meyer v. Nebraska, 262 U.S. 390, 399 (1923)), “precious,” id. (quoting May v.

Anderson, 345 U.S. 528, 533 (1953)), and “fundamental,” In re G.M., 596

S.W.2d 846, 846 (Tex. 1980). But they are not absolute. See, e.g., Stanley, 405

U.S. at 653 (“We do not question the assertion that neglectful parents may be

separated from their children.”). In 1997, to address the concern that courts

were interpreting federal legislation “as a directive to keep biological families

together at all costs,” Congress passed the Adoption and Safe Families Act

(ASFA), which moved “away from a presumption that everything should be

done to reunite children with their birth parents, even if the parents have been

abusive.” Katharine Q. Seelye, Clinton to Approve Sweeping Shift in Adoption,

N.Y. TIMES, Nov. 17, 1997, at A20. That presumption had contributed to the

growing number of children languishing in the foster care system. Id.; see also

Abigail Rose Drumm, Understanding the Adoption and Safe Families Act

(ASFA): History and Impacts, Adoption Advocate, NAT’L COUNCIL FOR

ADOPTION (Oct. 5, 2023), https://adoptioncouncil.org/publications/

understanding-the-adoption-and-safe-families-act-asfa/ (last visited June 3,

2026) (“Based on . . . existing research, the [ASFA] has achieved the goals of

reducing timeframes for youth in foster care and increasing the rate of

adoption.”). More recently, Congress enacted the Family First Prevention

Services Act in 2018 to authorize states to use federal funding not only for

foster care but also for services to keep families together and prevent children

from entering the foster care system in the first instance. How the Family First

Prevention Services Act Supports Maternal Mental Health and Substance Use

Recovery, POL’Y CENTER FOR MATERNAL MENTAL HEALTH (July 24, 2025),

https://policycentermmh.org/family-first-prevention-services-act-supports-

maternal-mental-health-and-substance-use-recovery/ (last visited June 3,

2026).

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645 S.W.3d at 741. Even under the heightened standard, “the factfinder

remains ‘the sole arbiter of the witnesses’ credibility and demeanor.’”

Id. (quoting In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021)). Deference

is required, and rightly so, because it is the factfinder, not the appellate

court, “who heard the witnesses and evaluated their credibility.”

J.F.-G., 627 S.W.3d at 311–12. This standard “honor[s] not only the

elevated burden of proof, but also the deference an appellate court must

have for the factfinder’s role.” In re A.C., 560 S.W.3d 624, 630 (Tex.

2018); see also In re Commitment of Stoddard, 619 S.W.3d 665, 674–75

(Tex. 2020) (recognizing the importance of deference even when the

burden of proof is beyond a reasonable doubt).

III. Analysis

Parental rights may be terminated only if a court “finds by clear

and convincing evidence both that (1) the parent committed an act

prohibited under Texas Family Code Section 161.001(b)(1), and

(2) termination is in the child’s best interest.” J.W., 654 S.W.3d at 741;

TEX. FAM. CODE § 161.001(b). I first address why sufficient evidence

supports the predicate grounds before turning to the best-interest

finding.

A. Predicate Grounds

Mother challenges the sufficiency of the evidence for the predicate

grounds involving endangerment of the child:

(D) [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;

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(E) [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 § 161.001(b)(1)(D)–(E). “‘[E]ndanger’ means ‘to expose

to loss or injury; to jeopardize,’” and “[a]lthough ‘endanger means more

than a threat of metaphysical injury or the possible ill effects of a

less-than-ideal family environment,’ it does not require that there be

conduct ‘directed at the child’ or that ‘the child actually suffer[] injury.’”

J.W., 645 S.W.3d at 748 (quoting Tex. Dep’t of Hum. Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987)). Subsections (D) and (E) focus on the

child’s environment before removal. Id. at 749.

The conduct of a parent or other person in the home is relevant to

the endangerment inquiry. Id. One parent’s knowledge of the other

parent’s creation of a dangerous environment, along with a

“corresponding failure to attempt to protect the” child, “can contribute

to an endangering environment and thus support an endangerment

finding.” Id. Put another way, although a parent may not be directly

responsible for the endangering environment, she may still be

responsible by “knowingly allow[ing] the child to remain in” that

environment. TEX. FAM. CODE § 161.001(b)(1)(D). Whether a parent

bears such responsibility “is necessarily dependent on the facts and

circumstances.” J.W., 645 S.W.3d at 750.

No one, including Mother, disputes that Father’s conduct created

a dangerous environment for the children. The harder question is the

degree of responsibility Mother bears for allowing her children to remain

around Father in that dangerous environment.

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Domestic violence is all too often a tragic reality for Texas

families. The perpetrator of domestic violence not only injures their

abused partner but also may endanger and harm children who witness

the abuse, experience the aftermath of such abuse, and live in the

conditions under which violence erupts. See H. LIEN BRAGG, U.S. DEP’T

OF HEALTH & HUM. SERVS., CHILD PROTECTION IN FAMILIES

EXPERIENCING DOMESTIC VIOLENCE 9–11 (2003). For victims of domestic

violence, the process of leaving their partners can be tremendously

difficult given the barriers that may trap them in a cycle of abuse.

To that point, Mother—as a victim of domestic violence and a

parent—was not required to act perfectly in terrible circumstances. See

J.W., 645 S.W.3d at 750 (holding that even if Father did not do

“everything he could,” his “concerted effort” precluded an endangerment

finding). Still, as a parent, Mother had an obligation to her children:

she could not knowingly place them or allow them to remain in

conditions endangering to their physical or emotional well-being. TEX.

FAM. CODE § 161.001(b)(1)(D). It is important to recognize that today’s

case does not involve a victim of domestic violence who has worked

continuously to leave the dangerous situation but faced ongoing

obstacles in doing so. That would be a very different case, and I do not

opine on such a situation. To the contrary, here, the record shows that

Mother (1) affirmatively indicated that she refused to protect the

children from Father even after admitting that he had engaged in

endangering conduct and (2) continued to use drugs while the case was

pending even though such drug use impeded her ability to protect the

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children from Father. That evidence, discussed below, provides ample

support for the jury’s endangerment findings.

Prior to removal, Mother told the Department investigator that

she feared for her safety as well as the safety of her children because she

was concerned that Father’s actions could escalate to violence against

the children. Moreover, Mother recognized that the children had

already been exposed to Father’s repeated violent outbursts.

Because of that endangering environment, the Department

informed Mother that allowing Father back into the home would

constitute a danger to the children, thereby risking their removal.

Mother agreed to a safety plan, which required Father to be

supervised—by someone other than Mother—when he was with the

children for their safety. Despite the safety plan and her own

recognition of the danger to her children, Mother allowed Father to

return home. When Father returned, Mother did not leave, as she had

before, or report his presence. 2 Instead, Mother refused to provide the

Department access to the children without a court order. Accordingly,

the Department sent a police officer to conduct a welfare check on the

children, leading to the discovery that Father was present in the home

again.

That evidence supports a finding that Mother “knowingly placed

or knowingly allowed the [children] to remain in [endangering]

conditions” and “with persons who engaged in [endangering] conduct.”

Id. § 161.001(b)(1)(D)–(E). Father’s conduct clearly endangered the

2 Father had a pending warrant for his arrest at the time.

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children’s well-being, and Mother was aware of the danger he posed.

Still, she knowingly violated the safety plan and allowed Father back

into the home. Moreover, she became obstinate about her unwillingness

to distance the children from Father. Mother did not need to solve

everything on her own, but she did have to do the best she could to

insulate her children from Father’s violent behavior. Her failure to do

so satisfies the predicate grounds.

Mother’s drug use is further evidence of her inability to protect

the children from Father and supports the endangerment finding. See

In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“[A] parent’s use of

narcotics and its effect on [their] ability to parent may qualify as an

endangering course of conduct.”). This evidence is particularly

concerning because of the impact that drugs would necessarily have on

Mother’s ability to take action to protect the children under such

circumstances. Mother knew that she would be impaired by using

drugs, but she did so anyway. During the pendency of the case, Mother

tested positive for heroin, methamphetamine, amphetamines, and

opiates. At trial, Mother admitted to using marijuana with Father.

Given the danger Father posed to the children, a reasonable juror could

have formed a firm conviction that Mother’s drug use impaired her

ability to protect the children and thereby endangered them.

B. Best Interest

The Department must also prove by clear and convincing

evidence “that termination is in the best interest of the child.” TEX. FAM.

CODE § 161.001(b)(2). Sufficient evidence supports this finding as well.

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The Court takes issue with the jury’s finding for three principal

reasons: (1) the trial court did not give Mother enough time to complete

the service plan; (2) the Department did not give Mother a clear

directive regarding her relationship with Father; and (3) the children’s

conditions were worsening while in foster care. Ante at 30. Of these

reasons, only the third properly focuses on the children’s interests. In

my view, the evidence in this case that Mother would allow Father

around the children despite the clear danger he posed means that a

reasonable juror could have formed a firm conviction that termination

was in the children’s best interest—to save them from a home in which

they were likely to suffer more trauma.

Above all, the best-interest inquiry “is child-centered and focuses

on the child’s well-being, safety, and development.” A.C., 560 S.W.3d at

631. The evidence relevant to the predicate grounds may also be

probative of best interest. Id. at 631–32. Several nonexclusive factors

inform the inquiry:

(1) the desires of the child; (2) the child’s emotional and

physical needs now and in the future; (3) the emotional and

physical danger to the child now and in the future; (4) the

parenting abilities of the individuals seeking custody;

(5) the programs available to assist those individuals to

promote the child’s best interest; (6) the plans for the child

by those individuals or by the agency seeking custody;[3]

3 “[T]he lack of evidence about definitive plans for permanent placement

and adoption cannot be the dispositive factor; otherwise, determinations

regarding best interest would regularly be subject to reversal on the sole

ground that an adoptive family has yet to be located.” In re C.H., 89 S.W.3d

17, 28 (Tex. 2002). Rather, “the inquiry is whether, on the entire record, a

factfinder could reasonably form a firm conviction or belief that termination of

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(7) the stability of the home or proposed placement; (8) the

parent’s acts or omissions that may indicate the existing

parent–child relationship is improper; and (9) any excuse

for the parent’s acts or omissions.

J.W., 645 S.W.3d at 746 (citing Holley v. Adams, 544 S.W.2d 367, 371–72

(Tex. 1976)). “[E]vidence that a parent will knowingly expose [a] child

to a dangerous environment in the future” is “relevant to a best-interest

determination.” Id. at 749.

In my view, the third Holley factor weighs heavily in favor of

termination. As Mother herself recognized, Father’s behavior presented

a very real risk of physical harm to the children. Importantly, she later

retracted these safety concerns and became obstinate about not

distancing the children from Father. At trial, Mother claimed that

Father did not pose a threat to the children, and she stated that she

would not keep Father away from the children if they were returned to

her. When asked if she thought the children would suffer more trauma

from seeing their parents divorce or witnessing their Father attempt

suicide, she stated that both would be “equally traumatizing.” Thus, not

only was it clear to the jury that Mother was likely to allow Father to be

present with the children, but it was also clear that Mother no longer

took seriously the threat Father posed to them. Given this evidence, the

jury could have concluded that Mother would likely expose the children

to the same dangerous environment they experienced before and that it

was not in the children’s best interest to return to that environment.

the parent’s rights would be in the child’s best interest—even if the agency is

unable to identify with precision the child’s future home environment.” Id.

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Additionally, Mother did not remain drug free during the

pendency of the case even though drug use impacts her ability to protect

the children. From November 2022 through February 2023, Mother

refused five requests to take court-ordered drug tests. When Mother did

eventually submit to a drug test, she tested positive for heroin,

methamphetamine, amphetamines, opiates, and marijuana. Her

continued drug use bears upon her ability to care for the children,

including keeping them safe from Father. When combined with

Mother’s inconsistent positions on whether Father posed a danger to the

children, the jury could reasonably form a firm conviction that Mother

could not meet their needs now or in the future. See In re C.A.G.,

No. 14-18-00930-CV, 2019 WL 1523114, at *9 (Tex. App.—Houston

[14th Dist.] Apr. 9, 2019, pet. denied).

The second Holley factor favors termination as well. The children

had significant emotional needs that Mother appeared unlikely, or

unwilling, to meet. Henry and Beth received treatment in psychiatric

hospitals and exhibited violent behavior toward others. Mary was

“extremely traumatized” and suffered from anxiety as well as “severe

behavioral meltdowns.” Mother indicated that she was reluctant to

administer medication prescribed for the children’s mental health.

The Court views the children’s behavioral issues as evidence that

“whatever [the Department] was trying did not seem to be working.”

Ante at 30. But the jury could reasonably have concluded that the

children were suffering because of the traumatic environment in which

they had lived. To start, the jury heard evidence that the children

exhibited the same behavioral issues before removal. For example, the

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family’s neighbor testified that, prior to the Department’s involvement,

Henry punched her son in the face and faced suspension from school for

stabbing a student in the eye.

While in foster care, the children were seen by a licensed

counselor. The counselor testified that the children expressed

awareness of Father’s self-harm and the physical altercations between

Father and Mother. The jury also heard testimony explaining how

children who are exposed to trauma can have difficulty regulating their

emotions and behavior. In the counselor’s view, the children’s

behavioral and emotional issues were caused by their exposure to

domestic violence and suicide attempts. The counselor further testified

that the children were in the process of addressing their trauma. For

example, while Mary “carries around an intense amount of anger” that

is “eye-opening,” the counselor thought that Mary’s mental health was

likely to improve because she was young and intervention occurred

quickly. However, allowing the children to return to the very

environment that traumatized them in the first place could, as the

counselor testified, exacerbate their current struggles. Under the

applicable standard of review, the jury was entitled to credit the

counselor’s testimony and conclude that the emotional needs of the

children weighed in favor of termination.

The Court is also troubled by what it views as inconsistent

directives from the Department to Mother. The Department’s initial

goal was, as it ought to be in most cases, to keep the family together.

The Department’s goals changed, however, when it determined that

termination would be in the children’s best interest. Father’s counselor

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in the Batterers Intervention Prevention Program testified that the

children would not be safe in the home with Father and that Mother

demonstrated an unwillingness to keep him away from the children.

Still, the Department did not demand that Mother divorce Father.

Rather, it insisted on the children’s safety. Their safety did not depend

on a divorce, but it did require that Mother not subject the children to

Father’s abuse. 4

Finally, I recognize that the children loved their parents and

expressed a desire to return home. Mother testified that the children

loved both their parents and that Beth had asked to come home. The

family’s counselor also testified that the children loved their parents. A

child’s desire is a proper consideration, but it is not dispositive. See J.W.,

645 S.W.3d at 746. After all, children naturally love their parents, even

when those parents have mistreated them. The jury was entitled to

weigh this evidence and decide the ultimate question—whether

termination was in the children’s best interests. Because ample

evidence supports the jury’s finding, the fact that the children indicated

a desire to return home does not, by itself, allow us to second-guess that

finding on appeal.

In the end, I disagree with the Court’s view of the evidence, not

the law. Of course, a parent should not lose a child because of a partner’s

abuse. Ante at 23. And of course, a victim of domestic violence should

4The Court recognizes this point: “A mother . . . cannot invoke the

marriage to exempt herself from the duty of protecting the children, of course,

and that may sometimes even leave her with little option but to see her

husband only when the children are not present.” Ante at 26.

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not be blamed or punished for the actions of an abuser. Id. at 24. While

termination of parental rights is undoubtedly the “‘death penalty’ of civil

cases” and is appropriately treated as such by the law and the courts, In

re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring),

its purpose is not to punish parents but to protect children.

In the Court’s view, “The evidence showed that [Mother]

understood her obligation to ensure that the children were not subjected

to danger from Father going forward, that she was committed to

complying with that obligation, and that she was capable of doing

so . . . .” Ante at 24. But that evidence was far from undisputed, and it

remains the jury’s “responsibility to weigh evidence, draw inferences,

and evaluate witness credibility.” J.W., 645 S.W.3d at 745. The jury

could have chosen to credit Mother’s testimony that she would protect

her children. Instead, the jury credited Mother’s past conduct and her

testimony that she did not intend to keep the children’s abusive father

away. Properly deferring to the jury’s role as factfinder requires us to

allow them that choice because it is the jury who is tasked with hearing

the evidence and evaluating its credibility. See J.F.-G., 627 S.W.3d at

311–12. A reasonable juror could have formed a firm conviction that it

was in the children’s best interests to no longer have a legal relationship

with Mother.

III. Conclusion

I would hold that legally sufficient evidence supports the jury’s

findings, by clear and convincing evidence, that both Mother and Father

endangered the children and that termination of Mother’s and Father’s

parental rights was in the children’s best interest. In holding otherwise

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as to Mother, the Court fails to properly defer to the jury’s role as

factfinder. Because that failure works against the best interest of the

children in this case, I respectfully dissent.

Debra H. Lehrmann

Justice

OPINION FILED: June 5, 2026

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