in the Interest of L.C.L. and M.E.M., Children

IN THE SUPREME COURT OF TEXAS
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No. 20-0432
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IN THE INTEREST OF L.C.L. AND M.E.M., CHILDREN

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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
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JUSTICE LEHRMANN, joined by JUSTICE BLAND, concurring in the denial of the petitions
for review.

The Department of Family and Protective Services petitions for review of the court of

appeals’ judgment reversing the trial court’s order terminating Mother’s parental rights to her

two children. Mother filed a cross-petition, asserting that the court of appeals erred in remanding

the case to the trial court rather than rendering judgment in her favor. I concur in the denial of

the petitions to note a disagreement among the courts of appeals—regarding the interplay

between a parent’s drug use and a trial court’s endangerment findings—that this Court should

resolve in the proper case. I further note a recent decision issued by this Court that has some

bearing on the resolution of that disagreement. See In re J.F.-G., ___ S.W.3d ___, 2021 WL

2021138 (Tex. May 21, 2021).

The trial court in this case found by clear and convincing evidence that Mother

(1) “knowingly placed or knowingly allowed the child[ren] to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child[ren],” TEX. FAM.

CODE § 161.001(b)(1)(D); (2) “engaged in conduct or knowingly placed the child[ren] with
persons who engaged in conduct which endangers the physical or emotional well-being of the

child[ren],” id. § 161.001(b)(1)(E); and (3) “failed to comply with the provisions of a court order

that specifically established the actions necessary for the parent to obtain the return of the

child[ren] who ha[ve] been in the permanent or temporary managing conservatorship of the

Department . . . for not less than nine months as a result of the child[ren]’s removal from the

parent . . . for the abuse or neglect of the child[ren],” id. § 161.001(b)(1)(O). The trial court

further found that termination was in the children’s best interest.

A divided en banc court of appeals reversed. 599 S.W.3d 79 (Tex. App.—Houston [14th

Dist.] 2020). The court held: legally insufficient evidence supported the trial court’s findings

under subsections (D) and (E), id. at 84–86; legally and factually sufficient evidence supported

the trial court’s finding under subsection (O), id. at 86; and legally sufficient, but factually

insufficient, evidence supported the trial court’s best-interest finding, id. at 89. Because one

predicate finding under section 161.001(b)(1) is sufficient to support a termination judgment

when there is also a finding that termination is in a child’s best interest, In re A.V., 113 S.W.3d

355, 362 (Tex. 2003), the court of appeals remanded the case to the trial court for a new trial

only on best interest, 599 S.W.3d at 91.

The children were initially removed based on a report of suspected neglect and Mother’s

testing positive for cocaine and marijuana. Over the course of the proceedings, Mother tested

positive for drugs five times and failed to appear for numerous additional drug screenings,

resulting in a presumed positive test on those occasions. The positive drug tests continued

despite the fact that they had resulted in the Department’s stopping Mother’s visitation with the

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children. Mother also failed to participate in substance-abuse counseling despite several referrals

and scheduled appointments.

In rejecting the trial court’s findings as to subsections (D) and (E), the court of appeals

concluded that a parent’s “mere drug use alone” does not constitute endangerment and that the

record reflected no “causal connection between Mother’s drug use and the alleged

endangerment” of her children. Id. at 84–85. The dissent opined that the majority had

“overrule[d] almost a decade of authority from [that] court” and created a conflict with the other

courts of appeals. Id. at 96–97 (Wise, J., dissenting); see, e.g., In re GC, No. 14-18-01114-CV,

2019 WL 2063038, at *7 (Tex. App.—Houston [14th Dist.] May 9, 2019, pet. denied) (mem.

op.) (citing precedent from that court that “a parent’s decision to engage in illegal drug use

during the pendency of a termination suit, when the parent is at risk of losing the child, may

support a finding to a clear and convincing degree that the parent engaged in conduct that

endangered the child’s physical or emotional well-being”); Walker v. Tex. Dep’t of Family &

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

(holding that illegal drug use may support termination under subsection (E) because “it exposes

the child to the possibility that the parent may be impaired or imprisoned”), cited by, e.g., In re

A.L., No. 06-14-00050-CV, 2014 WL 5204888, at *7 (Tex. App.—Texarkana Oct. 8, 2014, no

pet.) (mem. op.); see also In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.)

(“Evidence of illegal drug use or alcohol abuse by a parent is often cited as conduct which will

support an affirmative finding that the parent has engaged in a course of conduct which has the

effect of endangering the child.”).

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As noted, the court of appeals concluded that the evidence supported the trial court’s

subsection (O) finding, such that the propriety of the termination judgment does not hinge on

subsection (D) or (E). 1 Accordingly, this Court’s agreement (or disagreement) with the court of

appeals’ endangerment analysis would not, by itself, affect the judgment in this case. However,

the apparent conflict among the courts of appeals regarding the connection between drug use and

endangerment warrants this Court’s attention in a case where a subsection (D) or (E) finding is

necessary to the judgment.

I further note this Court’s recent opinion in In re J.F.-G.—issued after the court of

appeals’ opinion in this case—in which the father argued that his parental rights had been

terminated impermissibly under subsection (E) solely because of his imprisonment. ___ S.W.3d

at ___, 2021 WL 2021138, at *4; see Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533–

34 (Tex. 1987) (holding that “mere imprisonment will not, standing alone, constitute engaging in

conduct which endangers the physical or emotional well-being of the child”). We rejected the

father’s argument, reaffirming that under subsection (E), endangering conduct “need not be

directed at the child,” “[n]or must the child actually suffer injury.” In re J.F.-G., ___ S.W.3d at

___, 2021 WL 2021138, at *5 (citation and quotations omitted). Rather, “[a] parent’s criminal

history—taking into account the nature of the crimes, the duration of incarceration, and whether

a pattern of escalating, repeated convictions exists—can support a finding of endangerment.” Id.

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The court of appeals was nevertheless required to examine the trial court’s findings with respect to
subsections (D) and (E) because of the findings’ potential effect on Mother’s rights with respect to future children.
See TEX. FAM. CODE § 161.001(b)(1)(M) (providing as a ground for termination that the parent has “had his or her
parent–child relationship terminated with respect to another child based on a finding that the parent’s conduct was in
violation of Paragraph (D) or (E)”); In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (“When a parent has presented the
issue on appeal, an appellate court that denies review of a section 161.001(b)(1)(D) or (E) finding deprives the
parent of a meaningful appeal [even if another statutory ground supports termination] and eliminates the parent’s
only chance for review of a finding that will be binding as to parental rights to other children.”).

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In this case, the court of appeals took the position that “mere drug use” cannot support an

endangerment finding, 599 S.W.3d at 85, akin to our holding that “mere imprisonment” does not

support such a finding. But just as imprisonment cannot be viewed in a vacuum, neither can a

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

narcotics and its effect on his or her ability to parent may qualify as an endangering course of

conduct.”); see also Boyd, 727 S.W.2d at 533–34 (holding that danger to the child may be

inferred from parental misconduct). Our discussion of imprisonment as part of an endangering

course of conduct in In re J.F.-G. bears on the proper consideration of a parent’s drug use as part

of an endangering course of conduct under subsection (D) or (E).

With these additional thoughts, I concur in the Court’s denial of the petitions for review.

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Debra H. Lehrmann
Justice

OPINION DELIVERED: June 25, 2021

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