in the Interest of J.W., a Child

Supreme Court of Texas
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No. 19-1069
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In the Interest of J.W., a Child

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On Petition for Review from the
Court of Appeals for the Tenth District of Texas
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Argued September 15, 2021

JUSTICE YOUNG, concurring.

Three vigorous opinions—the detailed opinion of the Court and
two dissents—debate the resolution of Father’s appeal in this parental-
rights-termination case. The Court reverses the termination and
remands for a new trial. One dissent argues that the Court has not gone
far enough; the other contends that the Court has gone too far.
On the surface, these contending opinions suggest that the Court
is hopelessly divided. My additional separate writing does not aim to
deepen the seeming division with yet a fourth approach. Quite the
opposite: I write to suggest that the disagreements are largely (not
entirely, but largely) limited to the outcome of this single case. Thus,
while I join the Court’s opinion and its judgment, I also agree with much
of the legal analysis in both dissents. Indeed, I see nothing in the Court’s
opinion that contradicts the positions that our dissenting colleagues put
forth with such vigor.
My purpose, therefore, is to enumerate several core principles that
I believe emerge from this case’s various opinions. These eight principles
are of great importance for the many other cases that involve whether
parental rights may be terminated.
First, I begin with the premise that our law recognizes the parent-
child relationship as sacred: “This natural parental right [is] a basic civil
right of man[] and far more precious than property rights.” In re A.M.,
630 S.W.3d 25, 25 (Tex. 2019) (Blacklock, J., concurring in the denial of
review) (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). No
wonder, therefore, that governmental interference in that relationship
faces scrutiny and limits under the U.S. Constitution and our State’s
Constitution and statutes.1 Most parents would gladly give their lives
for their children; many, alas, have had to do so. Most parents would
also stake their lives on what the U.S. Supreme Court has called “the
right, coupled with the high duty,” to oversee their children’s growth and
development. Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).
Second, however, the very sanctity of the parent-child relationship
entails the need for an escape hatch if things go terribly wrong. Parents
typically can be counted on to move heaven and earth to protect their
children, which is a key reason that parental relationships warrant such
respect. Who could better judge what serves a child’s best interests than

1 See, e.g., Troxel v. Granville, 530 U.S. 57, 72 (2000) (holding that a fit
custodial parent has a fundamental right concerning the “care, custody, and
control” of her children); In re C.J.C., 603 S.W.3d 804, 806–08, 811–14 (Tex.
2020) (describing federal and Texas authorities that address parents’
fundamental rights to direct their children’s upbringing).

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a fit parent? For this reason, breaching the ancient obligation that a
parent has to a child is among the most serious breaches of trust
imaginable. When such a violation is proven, the law deems a parent to
have renounced his or her status as a parent.2 The average Texan would
be shocked by the tragic volume of such cases that our courts see.
Said another way, parents are immeasurably better equipped than
any bureaucracy to order their children’s affairs. But when a parent
crosses a line—defined through legislative enactments pursuant to
constitutional limitations and upon a jury’s finding—the courts will
recognize that a parent has relinquished his entitlement to the honor of
the rights of parenthood. Such a change in status is never anything less
than a tragedy, but our society recognizes that it is sometimes necessary.
Third, one parent’s rights may not be terminated for another’s
failure. In this case, the joint trial of Father and Mother may well have
made it difficult for the jury to fully distinguish between the two
parents.3 On remand, Mother will not be a co-defendant; she has
allowed the judgment that terminated her parental rights to become

2 It is not easy to prove such a breach. See ante at 21 (describing the
heightened burden of proof and standard of review required to terminate
parental rights). Every benefit goes to the accused parent, which risks
subjecting a child to someone unfit to care for her. But it also protects her by
ensuring that she will not wrongly be deprived of a relationship with a fit
parent. Thus, only the truly unfit will be subject to what Justice Lehrmann
has aptly called “the ‘death penalty’ of civil cases.” In re K.M.L., 443 S.W.3d
101, 121 (Tex. 2014) (Lehrmann, J., concurring).
3To be clear, the joint trial was not itself a ground for a reversal—other
errors provide the basis for today’s decision. But the remand for a trial of
Father alone will have the salutary consequence of ensuring that he is judged
on his own, and not tarred with Mother’s sins.

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final. Mother’s problems will be refracted through a far different lens
this time around—not whether those problems exist, but whether Father
can adequately protect J.W. from any threat posed by Mother. The focus
will be on Father. It is one thing if Father cannot protect J.W. from
Mother; but Mother’s inability to protect J.W. will no longer be a central
question.
Thus, Mother will hardly be irrelevant in the new trial, but neither
will her inadequacies dominate it. The trial court should be careful to
ensure that Father’s rights—and his duty to J.W.—are not invaded on
account of Mother’s failings. As Justice Blacklock puts it, Father “should
not lose his son because of his wife’s failings,” and “it is Father’s rights
at stake, and he must be judged by his actions, not hers.” Post at 2, 25.
Fourth, neither the State nor the courts may penalize one spouse
for assisting the other or taking the other’s side, as long as such
otherwise-praiseworthy conduct does not harm the child. In this case,
Father clearly went to great lengths to help Mother. He appears to have
repeatedly turned the other cheek and seems desperately to have wanted
the best for Mother, including her restoration to full physical and mental
health. Even if his choices were not always wise, they seem largely to
have flowed from a genuine desire to maintain a united family and to
serve his wife as any husband should. Surely it would be better, as a
general matter, if more spouses sought to honor their promises to each
other, even in arduous circumstances that present dilemmas that none
of us would wish to face.
In any event, it is not for the government to instruct married
couples about their relationships. Our law also regards the matrimonial

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bond as sacred. One spouse generally cannot be compelled to testify
against the other even in aid of criminal prosecution. Tex. R. Evid. 504.
But this principle, too, has its legal limits—and not just in Rule 504’s
exceptions. As relevant here, some probative evidence could have allowed
the jury to conclude that Father’s support for his wife—a virtuous
intention—nonetheless trespassed into his duties to J.W.
The only relevant question, though, remains whether Father
could (and did) protect J.W., not whether Father was more pliant in his
attempts to aid his wife than the government might like. It is crucial
that these questions remain wholly distinct. On remand, I am confident
that the court will not allow confusion of the two points, and indeed will
ensure that the focus remains on the former, not the latter.
Fifth, and relatedly, the government does not and may not
advocate, seek, prefer, or reward divorce. Some testimony in the record
may suggest, at least when read in isolation, that the State’s agents were
disappointed at the thought of the marriage surviving. It is worth
restating another ancient principle: Divorce is an evil—one that our law
allows in recognition of adults’ freedom to make their own choices, and
one that sometimes may be inevitable in light of the frailties of human
nature. Occasionally it may even be the far lesser evil. But it is never
something to celebrate or encourage. Justice Blacklock reads the record
as reflecting that the government sometimes “expects people to sever
their bonds of marriage in order to prove their ‘protectiveness.’” Post at
19. His reading of the record is by no means baseless. One true benefit
of a new trial is the assurance that no whiff of such an attitude will be
repeated. The Court in no way endorses any such position, here or

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elsewhere.4
I conclude that the government’s position—despite some
unfortunate articulations of it—did not cross the line. As I understand
the record, there is some confusion about whether the divorce between
Father and Mother was genuine. The parents’ purported divorce was at
least arguably an effort to distract from what the State should
legitimately address—the obligation to keep J.W. safe. Any doubt about
what the government may legitimately target should be dispelled. Father
has never had any obligation to divorce Mother. His obligation, in
defending himself in a parental-rights-termination case, is to show that
his child will be safe. If Father cannot show his ability to ensure J.W.’s
safety while being married to (or otherwise associated with) Mother, and
if Father then uses a purported divorce to persuade the government and
the courts that the risk to J.W. has disappeared, then his lie about divorce
is quite relevant to the true issue—J.W.’s safety. See ante at 27 & 27 n.10.
Here, the concern was that Father would be unable “to tell
[Mother] no” and thus prevent J.W.’s exposure to all the things that
follow from that inability. Demanding divorce exceeds the government’s
authority—but if there was a lie about divorce that sought to cover such
an inability, the lie is not something that a jury would have to ignore or
that we should excuse.

4 Even aside from the historic respect that the institution of marriage
generally warrants under our law, in the child-protection context, there are
reasons to think (with full recognition of unfortunate exceptions) that
successful outcomes for children are more likely to follow from preserving their
parents’ marriages when possible. See, e.g., Bram Hogendoorn, et al., Divorce
and Diverging Poverty Rates: A Risk-and-Vulnerability Approach, 82 J.
Marriage & Family 1089 (2020).

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Sixth, as the Court properly acknowledges,5 the courts must hold
the bureaucracy in check. Bureaucratic decisions premised on arbitrary
or improper considerations always pose risks. 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. Nothing in any opinion today retreats from our longstanding
commitment to elevated thresholds of proof and judicial review.6
Seventh, jury verdicts are entitled to basic respect because they
provide another check on improper terminations. The use of the jury,
which is instructed to follow stringent requirements of proof, is yet
another protection for the parent. But the jury’s authority requires us
also to accept the standard of review in which the evidence must be seen
in a light favorable to the verdict. Thus, while I again agree with much
of Justice Blacklock’s eloquent dissent and find his presentation of the
record to be very persuasive, I cannot agree that the evidence
summarized by the Court is utterly incapable of supporting the verdict.
But the Court’s disposition favors Father—it properly insists that
Father have a chance to make his case to a new jury in a proceeding

5 See, e.g., ante at 36 (“We certainly do not condone or make light of the
potential . . . 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.”).
6 See also, e.g., In re A.M., 630 S.W.3d 25, 26 (Tex. 2019) (Blacklock., J.)
(concurring in denial of review) (cautioning against use of improper evidence
as basis to interfere with parental rights); In re E.R., 385 S.W.3d 552, 555 (Tex.
2012) (reversing court of appeals’ judgment for failing to show that parent had
constitutionally adequate notice of proceedings).

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shorn of the errors that infected his first trial. This is part of why I believe
that the distance between the Court and Justice Blacklock—while
certainly real—is not as great as it might first seem. Indeed, Justice
Blacklock recognizes today’s decision as “a victory of sorts for Father,”
even as he concludes that Father “is entitled to more.” Post at 2. Perhaps
even the government will conclude that a new trial is not needed. Either
way, though, in light of the evidence presented at trial, the “victory” that
Father has won is as much as we are authorized to afford him.
Eighth, the law is not blind to how a father treats the unborn, and
a father’s conduct before a child’s birth may well justify (or help in
justifying) the termination of his parental rights. I thus largely agree
with the premise of Justice Boyd’s dissent. But at the same time, to
subject Father to the loss of his parental rights based on what happened
during the pregnancy would require far more than the record here
shows. Father’s unwillingness or inability to control Mother during her
pregnancy is different in kind from the sort of affirmative acts of harm
toward either a mother or child during pregnancy that would justify
terminating his rights on that ground. I agree with the Court, ante at
30, and Justice Blacklock, post at 27 n.22, that Justice Boyd’s bottom-
line conclusion is mistaken in this case, even if there is general agreement
that the law may and indeed should hold a father accountable for
conduct before his child’s birth. Indeed, Father seems to have genuinely
desired his wife to be free of the scourge of drugs and appears to have
done everything he could, following his best lights, to help her. But it
was Mother, and not Father, who made the relevant choices.
Justice Boyd does not stand alone in seeing the law’s protection

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of children—or its demands on the obligations of parents—to reach the
period before a child’s birth, in other words. He only stands alone (as
far as I can see) in thinking that in this case a reasonable juror could
have concluded that Father’s conduct during the pregnancy rose to the
extreme level warranting termination under both grounds D and E (the
latter of which the Court need not even reach). But a disagreement on
the legal sufficiency of the evidence in a given case does not equate to a
disagreement on the core legal principle that governs all cases.

* * *
Father should take “yes” for an answer. He is getting everything
he ought to get—a trial that is free from unfair taint (he will be tried
alone, as Mother’s termination is final); a trial that is free from legal
error (he will receive granulated questions so that the courts may ensure
that a verdict relies on sufficient evidence); and a trial in which he may
freely put forth (or rebut) evidence to defeat the State’s case. Ante at 44.
With these observations, I join the Court’s opinion and judgment,
confident that the law is simultaneously protecting parental relationships
and ensuring that the courts may act if the obligation that a parent has
to a child falls below what the law requires.

Evan A. Young
Justice

OPINION DELIVERED: May 27, 2022

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