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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Supreme Court of Texas
══════════
No. 24-0307
══════════

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

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Second District of Texas
═══════════════════════════════════════

Argued September 9, 2025

JUSTICE YOUNG delivered the opinion of the Court, in which Chief
Justice Blacklock, Justice Busby, Justice Sullivan, and Justice Hawkins
joined.

JUSTICE LEHRMANN filed an opinion dissenting in part, in which
Justice Bland and Justice Huddle joined.

Justice Devine did not participate in the decision.

Few principles in our history and traditions are as deeply rooted as
the sanctity of the family. Fit parents, and not the government or anyone
else, have the right and the corresponding responsibility to direct their
children’s upbringing and to be their children’s primary source of protection
and guidance. At the same time, a parent’s inability or unwillingness to
satisfy basic, minimum standards of care can lead to abuse or neglect, which
justifies governmental intervention to protect the children. The desired
outcome of that 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. 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.
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. Such an order risks offending the laws of nature and
is impermissible under the laws of the United States and of Texas absent
clear and convincing evidence both that the parent failed to discharge his
obligations to his child and that the termination of parental rights is in the
child’s best interest. These heightened standards are required because
termination affects the fundamental rights of all involved—not just of
parents to their children but also of children to their parents.
This case requires us to apply these principles with respect to a
married couple with three children. The government sought termination of
both parents’ rights to each child. A jury determined that the requisite
grounds for termination had been proven as to both parents, and the trial
court rendered judgment accordingly. The court of appeals affirmed.
We likewise affirm as to Father, but we hold as a matter of law that the
government has failed to establish that termination of Mother’s rights is in
the children’s best interest. As to Mother, therefore, we reverse and render.

I

By the time the government got involved, Mother had already
endured a lifetime of trauma. As a child, she was “molested,” “raped,” and
“abused,” and the incident of rape was posted online. And while still a

2
child—just 16 years old—she began a romantic relationship with Father,
then a 24-year-old man, who had “groomed” her. She became pregnant at
age 17 and gave birth to Henry in May 2014, several months after she
turned 18. Mother and Father married in July 2014, about a month after
Henry was born. Two other children followed: Beth in 2016 and Mary in
2019. We deploy the pseudonyms used by the court of appeals rather than
the children’s true names.
The marriage was often rocky. Father allegedly had an “interest
in porn [that] had gone to some extreme tastes and that had caused some
extreme problems in their relationship.” Father wanted to engage in
sexual practices to which Mother would not consent. And Mother reported
that Father would touch her sexually in front of the children and refuse to
stop when asked.
Over the course of several years, Father exhibited “some bizarre
behavior,” repeatedly threatening to engage in, and actually engaging in,
self-harm. On one occasion, Father drove his vehicle toward the family’s
home as if he were going to crash into it but “stopped really fast before he
hit the house.” The children were in the home at the time. Father was
upset because Mother had reported that Father’s 12-year-old son from
a prior relationship, whom we call Adam and who occasionally lived with
Mother and Father, had inappropriately touched other children.
When Mary was nine months old, Mother told Father that she
wanted a divorce. Father grabbed a gun and threatened to shoot himself.
Mother wrestled the gun away and was afraid that a child would be shot
if the gun fired. During another argument, Father pulled a knife and
threatened to stab himself. The children were in the home at the time.

3
On one occasion, Father threatened to hang himself. He put a
rope around his neck, and Mother had to remove it. The children were
in the home then, too. Mother called law enforcement, and Father was
hospitalized for 24 hours.
Yet another time, Father slammed his head on a countertop while
the children were in the home. Mother was “sure they heard something.”
Father also threatened to shoot himself with a nail gun because he “just
does not take confrontation well.” He and Mother were behind the home
and the children were playing in the front yard. Mother claimed that she
temporarily left Father after each of those incidents.
Father eventually combined self-harm with violence against Mother.
During an argument in May 2022, Father grabbed Mother by her throat and
slammed her down on top of his toolbox. He then hit his own head with a
hammer and slammed his head into a wall. The children were in the home,
and Henry may have witnessed the incident. Mother fled with the children
and filed a police report. A warrant was issued for Father’s arrest.
Ironically enough, in light of later developments, Mother’s attempt
to protect the family by reporting Father is what led to the State’s initial
involvement. The Department of Family and Protective Services sent a
“Family-Based Safety Services specialist” to assist the family. As the
specialist described her role, it was to “come in and help the family mitigate
any safety concerns we have with them. I’ll provide services to do that,
and also connect them with resources within their community.” She also
warned Mother, however, that the department could remove the children
if Mother allowed Father to be around them without a third party
supervising the interaction. After Father was discovered back in the home,

4
the department removed the children and sued for conservatorship and
termination.
Mother’s family service plan indicated that the department’s
primary permanency goal was family reunification. The plan required
Mother to undergo couples counseling with Father. Couples counseling
was included in the plan because Mother and Father “were very adamant
that they were going to stay together and they wanted to be together and
work on their marriage.”
At first, the parents made little progress on their court-ordered
service plans that aimed to restore the family. Father appeared resistant.
Mother explained that it was hard to get started with services because
everyone was traumatized by the removal of the children. The parents
refused to undergo drug testing because they were smoking marijuana.
Mother once tested positive for other drugs, including methamphetamine.
On the other hand, visitation with the children went well at first. In
November 2022, the caseworker reported that both Mother and Father had
made all scheduled visits and that “[t]he visits have been good.” But in
February 2023, the children’s attorney ad litem asked the court to suspend
visitation after a particular visit ended poorly. The oldest child “had kind
of attached himself to [Mother] and didn’t want to go.” Mother refused to
force her child to part from her. Mother said something like, “I don’t know
why y’all are doing this to us, y’all should be going after other people,” and
the child responded, “Yes, God wants families to stay together, God wants
everyone to be happy, God wants us all to be happy.” Ultimately, law
enforcement intervened to end the visit. The trial court granted the motion
and indefinitely suspended all parental visitation with the children.

5
Even after the unfortunate visit that led to such a dire result, though,
the attorney ad litem acknowledged that it was “very obvious these children
love their parents” and “very obvious that these parents love these children.”
The attorney ad litem also confirmed that the goal was reunification—that
“everybody” wanted the children “back home” with the parents.
After the court ordered the suspension of visitation, the parents twice
moved for its resumption. At a hearing on one of those motions, a counselor
testified that he had kicked Mother and Father out of his program. Another
counselor testified that one of the children was “extremely worried” that
one of her parents might die or that her parents were “going to break up.”
The counselor further testified that the children wanted to go home. And
the counselor agreed that “maintaining a parent–child bond with each
other is hard to do if there’s no visitation allowed” and that it can make it
harder for parents to demonstrate what they have learned in their services
if they are not allowed to visit their children.
The department resolutely opposed the resumption of visitation,
however, and the trial court refused to allow the parents to see their
children. Thus, from the ill-starred visit in which the children and parents
had to be physically separated due to their emotional refusal to do so
voluntarily, the family went nearly seven months without seeing each
other even once until the trial. As far as we are aware, the parents have
not seen their children since then, either.
Meanwhile, far from being in adoptive placements, the children were
foundering in the foster system. There is evidence that they had exhibited
some negative behaviors and signs of distress even before removal. For
example, the jury heard evidence that Henry had been suspended from his

6
school because he had “stabbed a student in the face, in the eye.” After
removal, there were signs that the children had witnessed domestic
violence. Their play exhibited themes of aggression, violence, and fear. And
the children had apparently witnessed an incident “of Mom trying to get
away from Dad” involving “[k]icking a window out” and “blood.”
But it was after being taken from their parents and denied visitation
that the children fell into a downward spiral. Henry, the eldest, was not
even in foster care anymore. He had been placed “in a mental health
facility,” and his foster mother would not take him back. One of his
younger sisters was also “in a mental health facility.” A counselor testified
that Mary had “extreme temper tantrums” and that Beth had tried “to kill
a peer in the home.” The counselor testified that there were multiple factors
impacting the children’s behavior but that being removed from their
parents and denied all access to them could be one of them. The counselor
also agreed that “having to go to a psychiatric treatment facility would
indicate that [Beth’s] behaviors [were] worsening” and testified that
“anything related to this CPS case or this family triggers these behaviors
in these children.” According to the counselor, and consistent with ordinary
human experience, “removal from parents for children can be a very
traumatizing event” because the children are “taken from their family[,]
they’re not given much explanation,” and then they “go with a stranger to
a strange . . . house.”
In August 2023, Mother filed a motion requesting that the court
retain the suit on its docket and set a new dismissal date under Family Code
§ 263.401(b). At the hearing on the motion, Mother’s attorney emphasized
how far Mother had progressed on her “services with regard to parenting,”

7
many of which she had fully completed and through which she was showing
her progress. One service that she had not completed, he observed, was
counseling. But that was because, at an earlier hearing, the trial court had
learned that the parents were attending counseling together by Zoom and
had ordered the department to provide individual, in-person counseling.
According to Mother’s attorney, the department had not provided in-person
counseling to Mother because “they only have Zoom counseling available.”
The attorney also noted that, by that point, Mother had not been allowed
to visit her children in seven months, making it difficult to demonstrate
progress or develop the kind of evidence that would help establish her
fitness at trial.
The trial court refused to extend the case, and the trial proceeded as
scheduled in September 2023. The jury heard evidence of Father’s self-
harm and the May 2022 domestic violence against Mother. Mother
admitted that she had allowed the children to remain in “endangering”
conditions and that she and Father had engaged in conduct that
endangered the children. When asked about divorcing Father, Mother
testified that she considered divorce to be just as traumatizing to children
as witnessing violence.
Throughout the trial, the department, the children’s attorney ad
litem, and their witnesses emphasized not only Father’s violence but also
Mother’s alleged inability or unwillingness to protect the children by
distancing herself from Father. They portrayed the parents’ relationship
as “enmeshed”—which was not a “healthy dynamic” in their view. They
were critical of Mother’s decisions to allow Father around the children.
And Mother’s loyalty to Father was a major theme in the closing

8
arguments of both the department and the attorney ad litem.
One of Mother’s counselors testified to the difficulty victims of
domestic violence can have in admitting that they are victims. He spoke
of the “power of control wheel,” a device for understanding the tools that
a batterer uses to control the victim. The counselor had seen positive
changes in Mother during her counseling and testified that some victims
take longer than she did to make progress. Mother may also have had
difficulty opening up to her counselors at the beginning because of
trauma from her own childhood. But despite the abuse she had endured,
there was evidence of the services that Mother had completed or of which
she was nearing completion. For example, Mother completed courses in
parenting skills, anger management, positive discipline, parenting styles,
understanding brain development, developing self-worth, strengthening
communication, making rules and enforcing consequences, managing
feelings, domestic violence, and “victims intervention prevention.” The
jury also heard evidence that Mother had completed other service-plan
requirements, such as having a valid driver’s license, maintaining stable
housing, undergoing a substance-abuse assessment, completing couples
counseling with Father, and having a negative drug test. By the time of
trial, Mother was “calmer, she thinks more, she’s more assertive.”
The jury found that Mother and Father each committed acts
prohibited under paragraphs D, E, and O of Family Code § 161.001(b)(1)
and that termination as to both parents was in each child’s best interest
under § 161.001(b)(2). In accordance with the jury’s verdict, the trial court
signed a final order that terminated Mother’s and Father’s parental rights
to each of their children and appointed the department as the children’s

9
permanent managing conservator.
The court of appeals affirmed. 710 S.W.3d 248, 279 (Tex. App.—
Fort Worth 2024). It first held that the trial court did not abuse its
discretion in denying Mother’s request to extend the case because Mother
had not shown that extraordinary circumstances justified an extension. Id.
at 272. According to the court of appeals, Mother was at fault for failing to
complete her services. Id. The court then held that legally and factually
sufficient evidence supported each of the jury’s findings. Id. at 272–79.
The court determined that Father remained a threat to the children and
that Mother was “unwilling to leave Father for the children’s well-being”
in part because of “her statements regarding divorce,” id. at 278—that is,
“because she considered divorce and witnessing physical violence in the
home to be equally traumatic to children,” id. at 260. And, in the court’s
view, the fact that Mother “still maintained a relationship with Father”
was a factor that weighed in favor of terminating Mother’s parental rights.
Id. at 279. We granted Mother’s and Father’s petitions for review.

II

We begin with Mother’s appeal. We hold that the denial of Mother’s
motion to extend the trial date was reversible error. Because we further
conclude that the evidence at trial was legally insufficient to sustain the
finding that termination of her parental rights is in the children’s best
interest, we also render judgment for Mother.

A

Trial was set for September 11, 2023. Several weeks before that,
Mother asked the court to set a “new dismissal date,” which would have

10
had the effect of allowing the court to retain the case on its docket and
hold trial at a later date. By that point, Mother had completed or made
significant progress on all her services, with the exception of in-person
individual counseling because, despite being ordered by the court, it had
not been made available by the department before trial.
Mother simultaneously renewed her request for resumed visitation
with the children, which had been blocked by court order for the seven
months leading up to trial. Without visitation, she could not establish
through interaction with the children that her progress had borne fruit;
without setting a new dismissal date, there would be no chance for such
visits before trial. The children, moreover, were faring poorly in their
current placements, so rushing toward termination was not urgent in the
way that it might be if, for example, there were adoptive parents anxious
to proceed.
The department nonetheless opposed the extension and, on the
ground that resuming visits would be pointless if the trial proceeded
forthwith, it opposed reinstatement of visitation. The trial court denied
both motions, so the trial proceeded on September 11.
Mother’s request to set a new dismissal date arose in a legal context
distinct to parental-termination proceedings. Compared to ordinary civil
litigation, judges have limited discretion to retain parental-termination
cases on their dockets or to delay trials. As we discuss in greater detail in
another case decided today, the legislature does not allow children to
indefinitely remain in the department’s care as their parents’ termination
cases linger in the trial court. See In re C.S., ___ S.W.3d ___ (Tex. June 5,
2026). Instead, the legislature has created an extraordinary mechanism

11
that automatically strips trial courts of jurisdiction over termination cases
that do not timely proceed to trial. If the trial has not begun and the court
has not granted a lawful extension a year after the department was
appointed as a child’s temporary managing conservator, “the suit is
automatically dismissed without a court order.” Tex. Fam. Code
§ 263.401(a). And the court may not grant an extension necessary to retain
the case on its docket
unless the court finds that extraordinary circumstances
necessitate the child remaining in the temporary managing
conservatorship of the department and that continuing the
appointment of the department as temporary managing
conservator is in the best interest of the child.

Id. § 263.401(b). “If the court makes those findings, the court may retain
the suit on the court’s docket for a period not to exceed 180 days after the
time described by Subsection (a).” Id. It is often the department that seeks
the extension available under § 263.401. E.g., In re G.X.H., 627 S.W.3d
288, 292–93 (Tex. 2021). Here, it was Mother.
The statute does not define “extraordinary circumstances.” But its
text and context provide guidance about the term’s scope. If the court
ordered “a parent to complete a substance abuse treatment program” and
the court is considering whether to find extraordinary circumstances, the
court “shall consider whether the parent made a good faith effort to
successfully complete the program.” Tex. Fam. Code § 263.401(b-2). And
the statute requires the court to find extraordinary circumstances if “(1) a
parent of a child has made a good faith effort to successfully complete the
service plan but needs additional time; and (2) on completion of the service
plan the court intends to order the child returned to the parent.” Id.
§ 263.401(b-3). This Court has also given at least some guidance. For

12
example, we implicitly found that a parent’s last-minute jury demand was
an extraordinary circumstance justifying an extension. See In re J.S., 670
S.W.3d 591, 606 (Tex. 2023) (“Trial courts should not fear reversal when
they grant a parent’s last-minute jury trial request and fail to use the
magic words ‘extraordinary circumstances’ in discussing the resulting
logistical difficulties.”).
In other words, while the statute mandates finding extraordinary
circumstances under the particular conditions it identifies, it does not
foreclose finding extraordinary circumstances in other situations and does
not purport to demarcate the outer boundary of circumstances that may be
extraordinary. A trial court could abuse its discretion either in finding or
in refusing to find extraordinary circumstances.
In this case, § 263.401(b-3) did not itself mandate that the trial court
find extraordinary circumstances because the record does not show that,
at the time Mother moved for an extension, the court intended to return
the children to her after she completed the service plan. See Tex. Fam.
Code § 263.401(b-3)(2). But when evaluating the trial court’s decision to
deny the extension, we remain mindful that this is no ordinary civil case.
“[P]arental-termination cases stand apart from the rest of civil litigation
in multiple important ways.” D.V. v. Tex. Dep’t of Fam. & Protective Servs.,
722 S.W.3d 854, 858 (Tex. 2025). Such proceedings “[should] be strictly
scrutinized.” Id. (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.
1976)). That is because parental rights are “unique among all other claims
in our civil legal system.” Id. And “[t]ermination of parental rights is
traumatic, permanent, and irrevocable.” In re M.S., 115 S.W.3d 534, 549
(Tex. 2003).

13
The circumstances here were extraordinary. Mother initially
struggled to comply with the department’s demands, in part because they
challenged some of her closely held beliefs. For example, Mother was
reluctant to take certain psychiatric medications or to allow her children
to take them unless “absolutely needed.” Mother also had a difficult time
with the idea of Father being absent from the home, because he was her
husband and the children’s father. But after years in Father’s shadow,
Mother was beginning to take responsibility for her actions. She
acknowledged that she and Father “had some struggles getting started” on
services. She learned how to act more appropriately when receiving bad
news about her children. And she understood that the children were
removed because they had been in danger of domestic violence. Mother
testified that she had been continuously engaging in services for 23 weeks
and that she believed herself to be doing what she had been asked to do:
make progress.
As we have described, not all the delays in Mother’s services were
attributable to her. The trial court had stated on the record that the judge
“was not a big fan of Zoom counseling” and amended the court’s order to
require Mother to receive in-person counseling. (Notably, the discussion
about the need for in-person counseling occurred during a hearing over
Zoom.) But Mother contends, and the department does not dispute, that it
had not made in-person counseling available despite being ordered to do so
by the court, apparently because only Zoom counseling was available until
shortly before trial. The department does note that the parents had been
“booted” from counseling providers and that they were “on a waiting list
for in-person counseling.”

14
No matter what type of counseling Mother received or how
successful she was in her services, it would have been hard for her to
demonstrate her newly honed skills because she had not been allowed to
visit her children for nearly seven months. It is difficult to understand
how a court or the department could expect a family to survive when the
parents are required to separate from each other and from their children
for months at a time. Force a family to play dead long enough, and it may
eventually die in truth.
At least as significant, though, was the children’s condition at the
time of the hearing on Mother’s extension motion. To say that they were
not thriving would be an understatement. Although there was evidence
that the children were affected by having witnessed domestic violence
before their removal, they suffered a sharp decline after being separated
from their parents. Henry was in a psychiatric hospital, and Beth had been
in one too. Even after being in the department’s “physical custody” for
“about 11 months,” Mary was “extremely traumatized and demonstrate[d]
anxiety and severe behavioral meltdowns that result[ed] in screaming
tantrums [up] to 45 minutes at a time.” None of the children was yet in an
adoptive placement.
Much of the hearing on Mother’s extension motion consisted of
testimony from a counselor. The counselor agreed that “a child having to
go to a psychiatric treatment facility would indicate that her behaviors are
worsening.” But the counselor was reluctant to agree that visitation should
be resumed, even with a counselor present, because the children had
“significant trauma triggers” that the counselor had observed “throughout
this case.” That is, according to the counselor, “[w]hen a caseworker shows

15
up, when C[ASA] shows up, when they visit with [Henry], anything related
to this CPS case or this family triggers these behaviors in these children.”
The counselor then confirmed that seeing the caseworker and seeing the
CASA volunteer “triggers trauma.” Yet the counselor admitted that those
visits had not stopped, even though the children could not see their own
parents—and even though a counselor could have been present to oversee
the visits.
At the time of the hearing, therefore, these facts were undisputed:
• Mother was making progress on her services despite being
denied access to her children;
• the parents were on a waitlist for in-person counseling;
• all three children had significant behavioral issues that
worsened throughout the department’s custody;
• two children had been sent to psychiatric hospitals; and
• the department had found no adoptive placements for the
children.
Given these facts, mindful that “involuntary termination statutes
are strictly construed in favor of the parent,” Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985), and in recognition of the heightened standard of
appellate review, we hold that Mother demonstrated extraordinary
circumstances as required for the trial court to retain the suit and that
extending the case was in the children’s best interest. See Tex. Fam.
Code § 263.401(b). The court should have given Mother additional time
to complete her remaining services and reunite with her children.

B

If the only error committed below had been the trial court’s failure
to retain jurisdiction, perhaps the appropriate remedy would be to remand

16
the case for a new trial. But we need not decide that question because this
error snowballed into another one. By denying the extension and proceeding
to trial, the court cut short the process that seemed poised to lead to this
family’s reunification, or at least the reunification of Mother and the
children. And given that the process was still in full swing, we hold that the
department failed to present legally sufficient evidence that termination of
Mother’s parental rights was in the children’s best interest at the time of
trial. For that reason, we render judgment.

1

We begin by describing the standard of review for legal sufficiency
in parental-termination cases. Among the prerequisites for termination is
that the court must find by clear and convincing evidence that termination
is in the child’s best interest. Id. § 161.001(b)(2). That heightened standard
should not be treated as a formality. It is not even just a statutory
requirement—as if the legislature could, if it chose, deploy the usual
preponderance standard. To the contrary, as this Court has held,
constitutional law requires the heightened standard, which is therefore not
merely a matter of legislative grace. See In re G.M., 596 S.W.2d 846, 846–
47 (Tex. 1980). Later, the U.S. Supreme Court confirmed that under the
Due Process Clause of the Fourteenth Amendment, “[b]efore a State may
sever completely and irrevocably the rights of parents in their natural
child, due process requires that the State support its allegations by at least
clear and convincing evidence.” Santosky v. Kramer, 455 U.S. 745, 747–48
(1982) (emphasis added).
The clear-and-convincing standard is not just an instruction to be
read to a jury; it instead has meaningful implications on appeal. “As a

17
matter of logic, a finding that must be based on clear and convincing
evidence cannot be viewed on appeal the same as one that may be sustained
on a mere preponderance.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
Accordingly, we have instructed the courts of appeals on the enhanced
nature of factual-sufficiency review in parental-termination cases. See id.
at 25–26; see also, e.g., In re A.B., 437 S.W.3d 498, 502–03 (Tex. 2014). We
do not today address those standards, or whether the court of appeals
complied with them, because we conclude that the heightened nature of
legal-sufficiency review resolves the case.
The legal-sufficiency question for this Court is whether “a
reasonable trier of fact could have formed a firm belief or conviction that
its finding was true.” In re J.W., 645 S.W.3d 726, 741 (Tex. 2022)
(quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We may not
disregard undisputed evidence even if that evidence is inconsistent with
the verdict or finding. Id.; accord In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005) (noting that “in conducting a legal sufficiency review in a parental
termination case, we must consider all of the evidence, not just that which
favors the verdict”). Evidence that might be regarded as legally sufficient
to sustain a judgment in a case involving the preponderance standard
might constitute no evidence in a parental-termination case.
In short, the Family Code’s imposition of the clear-and-convincing
standard is a codification of a constitutional requirement, which in turn
reflects that the rights of parents to their children (and vice versa) are
fundamental rights of constitutional magnitude. J.W., 645 S.W.3d at 740.
That rationale explains why a lifetime protective order that essentially
deprived a mother of her parental rights required clear and convincing

18
evidence, even though no statute expressly imposed that heightened
standard. Stary v. Ethridge, 712 S.W.3d 584, 591–94 (Tex. 2025). And 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. Tex. Const. art. I,
§ 37 (emphasis added).
For constitutional reasons, therefore, we must strictly scrutinize
termination proceedings and construe involuntary termination statutes
strictly in the parent’s favor. Holick, 685 S.W.2d at 20. Invoking the power
of the State to sever familial bonds “is always the last resort,” D.V., 722
S.W.3d at 861, but is permissible to protect children from serious harm and
allow them to be adopted into a loving family, see Chris Gottlieb, A Path to
Eliminating the Civil Death Penalty: Unbundling and Transferring
Parental Rights, 19 Harv. L. & Pol’y Rev. 43, 50 (2024) (“[I]n the
1950s, . . . a new legal concept—terminating parental rights—took hold in
the law. Previously, parental rights were extinguished only at the moment
a child was adopted. Parental rights were transferred in adoption
proceedings, not terminated outside the context of an adoption.” (footnote
omitted)); Chris Gottlieb, The Birth of the Civil Death Penalty and the
Expansion of Forced Adoptions: Reassessing the Concept of Termination of
Parental Rights in Light of Its History, Purposes, and Current Efficacy, 45
Cardozo L. Rev. 1319, 1322–23 (2024) (“[V]irtually no attention has been
paid to the fact that until relatively recently it was entirely unheard of to
sever all of a child’s parental ties because no such legal step was available.

19
The legal mechanism used to terminate parental rights, which is now
ubiquitous in child welfare proceedings, did not exist until the mid-
twentieth century and, when introduced, was rarely used.”).
As everyone who practices family law in Texas knows, one of the
tragedies of our age is that there are far too many cases where this fearsome
power is necessary and proper. But it may be exercised only in the absence
of other legitimate options.

2

In this case, there were no allegations that Mother directly harmed
any of the children or failed to care for them. Rather, the focus at trial was
on Father’s violence and Mother’s ability or inability to protect the children
from him. But when a parent’s rights may be terminated based on a spouse’s
violence, the department should proceed with particular caution—especially
when the spouse’s violence is not directed at the children. Cf. In re A.P., 672
S.W.3d 132, 132–33 (Tex. 2023) (Young, J., concurring in the denial of the
petition for review) (“[P]recisely because termination is so serious, courts
must ensure that the analysis does not reduce to inevitably terminating the
rights of such a parent because of her status as a domestic-violence victim.”).
More than 30 years ago, this Court heard Lewelling v. Lewelling,
in which paternal grandparents sought to be appointed as managing
conservators of a minor child rather than the child’s mother. 796 S.W.2d
164, 165 (Tex. 1990). The Family Code required the grandparents “to show
that awarding custody to the natural parent would not be in the best
interest of the child because it would significantly impair the child’s
physical health or emotional development.” Id. (quotation marks omitted).
The trial court ordered that the grandparents be named as managing

20
conservators. Id. The court of appeals affirmed, basing its decision largely
on evidence that the father had physically abused the mother throughout
their relationship. Id. at 165–66. The mother “had been hospitalized on
several occasions as a result, once with a concussion from a blow to the
head, and . . . this physical abuse continued during the time she was
pregnant with [the child].” Id. at 165. In addition, although it was the
mother’s initiation of divorce proceedings that launched the custody
dispute, there was evidence that the mother “continued to see [the father]
after several incidents of physical abuse,” “testified that she might consider
a reconciliation if he sought counseling,” and “continued to see [the father]
during the pendency of the divorce when he came to visit [the child].” Id.
This Court reversed. Id. We noted that “[t]he presumption that the
best interest of a child is served by awarding custody to a natural parent is
deeply embedded in Texas law.” Id. at 166. And we explained that the
Family Code “require[d] the nonparent to offer evidence of specific actions
or omissions of the parent that demonstrate an award of custody to the
parent would result in physical or emotional harm to the child.” Id. at 167.
The court of appeals had gone off track by focusing on the abuse that the
mother allegedly suffered:
Most importantly, the court of appeals seems to place great
weight on the evidence relating to the alleged physical abuse
of [the mother], without any evidence that such abuse would
significantly impair [the child’s] physical health or
emotional development. A parent should not be denied
custody of a child based on the fact that he or she has been
battered. We hold that evidence that a parent is a victim of
spousal abuse, by itself, is no evidence that awarding
custody to that parent would significantly impair the child.
Any other result is contrary to the public policy of our State.
Id. (emphasis added) (footnote omitted). And the Court further commented

21
on why it was important not to deprive a parent of her child just because
that parent had been abused by her husband—even if there was evidence
that she had not entirely severed her relationship with the abusive spouse:
This includes evidence that [the mother] would return to her
husband after being beaten by him, as well as the emotional
complications inherent in such an abusive relationship. . . .
Victims of spousal abuse are often reluctant to terminate the
abusive relationship because of an overwhelming feeling of
helplessness and a low self-esteem. A holding contrary to
that which we reach today could only deter battered spouses
from reporting their suffering lest they lose their children.
Id. at 167 n.6 (citation omitted).
A concurring justice emphasized that “[n]o one testified that [the
mother] was in any way harmful to the child” and that “[h]er testimony that
she loved the child was demonstrated by her actions.” Id. at 169 (Cook, J.,
concurring). Two dissenting justices agreed that no evidence supported the
trial court’s decision, but given that they had “no way of knowing what may
have happened to the child or the parties in the two years that this case has
been on appeal,” they would have remanded for further proceedings in the
trial court rather than rendering judgment in the mother’s favor. Id. at 175
(Hecht, J., dissenting). And even the one dissenting justice who thought that
sufficient evidence supported the trial court’s order may have viewed the
case differently had it been about the termination of parental rights
rather than just conservatorship; he chided the Court for “equat[ing]
conservatorship and possession of a child with involuntary termination of
parental rights,” noting that “[i]nvoluntary termination of parental rights
is permanent and irreversible” and that “the parent-child relationship is
one of constitutional dimensions and should be disturbed only for the most
compelling and serious of reasons.” Id. at 173 (Gonzalez, J., dissenting).

22
The principle from Lewelling that a woman should not lose her child
just because her husband abused her points to a grim reality—the dilemma
faced by battered mothers who must choose between enduring the abuse
or risk losing their children by seeking help. One analysis of New York
City’s child-protection agency concluded:
While the offending partner is the principal source of the
mother’s dilemmas, these are often exacerbated by the
agencies to which the victim turns for help, particularly those
agencies responsible for child protection—CPS and the
courts. . . . Current CPS policy and practice aggravate the
battered mother’s dilemma in a number of ways. For
instance, the increasing propensity for CPS agencies and
courts to equate domestic violence with abuse or neglect
means that if a mother reports domestic violence . . . she
risks losing her child, an example of the battered mother’s
dilemma. If she does not report, however, she risks further
harm to herself or her child. . . . Against the intimidating
context in which safety concerns are unilaterally addressed,
the CPS response is self-fulfilling: women are reluctant to
report domestic violence until it escalates to a point where
children face imminent danger.
Evan Stark, The Battered Mother in the Child Protective Service Caseload:
Developing an Appropriate Response, 23 Women’s Rts. L. Rep. 107, 125–26
(2002) (footnotes omitted).*

* See also, e.g., Jaime Perrone, Failing to Realize Nicholson’s Vision: How
New York’s Child Welfare System Continues to Punish Battered Mothers, 20 J.L.
& Pol’y 641, 669 (2012) (arguing that “[w]hen the primary reason for keeping a
neglect proceeding against a nonviolent parent open is that her children have been
exposed to domestic violence, CPS must prove that the child’s life or health is at
imminent risk warranting removal from the battered mother’s care”); Amanda J.
Jackson, Nicholson v. Scoppetta: Providing a Conceptual Framework for Non-
Criminalization of Battered Mothers and Alternatives to Removal of Their
Children from the Home, 33 Cap. U. L. Rev. 821, 867 (2005) (“Battered mothers
should not be considered neglectful and unfit parents merely because they have

23
Unlike Lewelling, today’s case is a termination case—one with
potentially “permanent and irreversible” consequences. See 796 S.W.2d at
173 (Gonzalez, J., dissenting). We are therefore even more alert to the
possibility that Mother may be blamed and punished for Father’s actions,
even if that is not the department’s intent. And the record before us does
indeed reveal that Mother is in this predicament primarily because of
Father’s actions, not because of her own faults. True, in the early days after
the removal of her children, Mother was reluctant to cooperate with the
department and was defensive of Father. She believed that the department
made “false accusations” and “like[d] to distort things that come out of your
mouth to where it fits them.” And Mother would not agree, at first, to
prevent Father from contacting the children when only she was supervising.
By the time of trial, though, the situation was markedly different.
Mother now understood that Father’s self-harm and domestic violence
posed risks to the children, as voluminous undisputed testimony, most
prominently from the department’s own counselors and providers, made
clear. The evidence showed that she 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 even though she obviously hoped that Father’s own
progress would greatly diminish the likelihood that she would need to
undertake protective actions. All this evidence directly addresses the legally

been abused by their partners in the presence of their children.”); Justine A.
Dunlap, Sometimes I Feel Like a Motherless Child: The Error of Pursuing Battered
Mothers for Failure to Protect, 50 Loy. L. Rev. 565, 566 (2004) (“Children should
not be taken away from their battered mothers because they have witnessed the
abuse. This practice cruelly blames the mothers for being abused and harms the
very children sought to be protected.” (footnotes omitted)).

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relevant question: not whether Mother is a victim of abuse herself, or
whether Mother is unwilling to sever a relationship with her own husband
despite departmental disapproval of such a choice, but whether Mother can
and will protect her children, including from her husband and their father
if necessary. See, e.g., J.W., 645 S.W.3d at 743 & n.10.
Moreover, to the extent that Mother did not demonstrate her
willingness to prioritize her children as persuasively or as quickly as she
might have, that was at least in part due to the lack of clarity in what the
department intended to achieve and what it required of her. At an earlier
hearing, the department’s specialist unequivocally agreed that her goal
was “to preserve the family unit and let the kiddos remain in the care and
custody of at least one parent.” The attorney ad litem had also urged the
parents to “get the help that they need so that these children can return
home.” And the parents participated in couples counseling aimed at
reconciliation and family reunification as part of their mandatory, court-
ordered services. In other words, the department was signaling to Mother
that she needed to work on her relationships with her husband and her
children so that they could all be reunited.
At the same time, however, the department’s case against Mother
was premised on her alleged unwillingness to separate from Father. For
example, in its closing argument, the department condemned Mother
because she “did not kick [Father] out” and because “she’s still with him.”
And Mother’s connection to Father was the lead point in the attorney ad
litem’s closing argument: “[Mother], she’s going to choose her husband above
all. . . . How do we know this? Well, we know this because, for one, you’ve
seen no affirmative action from her to do anything else. They’re still

25
together.” (Emphasis added.) The department’s brief in this Court
repeatedly refers to concerns about “Mother’s and Father’s enmeshed
relationship.” Married people typically have “enmeshed” relationships,
which is in fact close to the very definition of marriage and what it requires.
To be clear, and as the department acknowledged during oral
argument, this Court’s precedent forecloses the department from
demanding that Mother (or any parent) choose between divorcing her
husband or losing her children. See, e.g., J.W., 645 S.W.3d at 743 n.10; see
also id. at 754 (Young, J., concurring). But the department’s arguments
come perilously close to that line. They may well have crossed it at trial,
and it appears that a major reason the court of appeals affirmed the best-
interest determination as to Mother was that she had not permanently left
Father and divorced him. See, e.g., 710 S.W.3d at 277–78 (holding Mother’s
“statements regarding divorce” against her); id. at 279 (stating that
“although Mother insisted that she would leave Father to get her children
back, she had not done so”). We reiterate that neither the department nor
any court of this State may, in the name of the People of Texas and their
laws, demand divorce as a precondition for maintaining parental rights. A
mother unfortunate enough to have a husband from whom their children
must be protected 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. But the government may never condition her status as a
parent on her willingness to pursue divorce.
Imposing a demand for divorce is unlawful, and imposing such an
unlawful demand sub silentio is even worse than demanding it overtly.

26
This case reflects the problem that can arise if the real goal—to separate
a married couple—is communicated only indirectly, while a demand for
the couple to reunite and thrive is made overtly. Generating such cognitive
dissonance creates independent problems related to due process because
parties cannot be expected to comply with orders that they cannot
reasonably understand. There is every indication here that Mother never
understood exactly what the department wanted. The testimony of one of
the parents’ counselors exemplifies this point with particular clarity. The
counselor testified that he firmly believed that the children would not be
endangered if they were returned to Mother. When the attorney ad litem
asked him whether Mother had taken any actions to show that she would
choose her children over Father, the counselor responded, “She hasn’t
been put in that position yet to make a choice.” When asked to clarify,
the counselor explained,
She’s trying to work it out with her husband, and
then, you know, she wants to know what the CPS wants to
do—that y’all make a choice and she’ll choose her children.
....
I guess she was waiting to see what y’all wanted—do
y’all want them to split up? Do you want them to stay
together?
If she had a choice of either, A, getting the kids back
or, B, staying with [Father] and not getting the kids back, she
would leave.
So if even the counselor whom the department paid to work with Mother
could not ascertain what the department’s position really was, it is hardly
surprising that Mother did not. Indeed, it is possible that even the
department itself did not really know which of two opposing directions it

27
expected Mother to choose.
Notably, the record shows that Mother was even willing to comply
with an illegal demand if that was what the department insisted upon for
her to regain her children—if only she understood what the demand was.
Any fit parent would likely succumb to nearly any demand if it was the
price for reunification with her children, which is one reason for careful
judicial scrutiny at every stage—to ensure that the massive power
imbalance between the State and the parent is used only for proper
purposes, like rehabilitating families. Here, though, Mother was operating
in the dark and potentially acting at cross-purposes with the department
without realizing it. On the one hand, she had to show that she would
protect her children at any cost, and on the other hand, she had to show—
because the service plan demanded that she show—that all five of them
could remain a family. She was caught between her love for her husband
(and her marriage vows to him) and her love for her children.
Despite being in such an unenviable position, Mother was making
significant progress. She had completed most of her services by the time
of trial. And as the department’s caseworker acknowledged, Mother was
on a waiting list to begin additional services, which obviously could have
been a factor in her failure to fully complete her service plan.
The whole case, after all, began only because Mother herself alerted
the authorities and departed with the children the first time Father’s
violence was exerted against her. Beyond protecting her own children,
Mother had even managed to aid their half-brother, Adam, who had
already turned 18 by the time the department removed Mother’s children.
When Adam was 12, Mother caught him inappropriately touching several

28
children who were not her own. She also suspects that Adam may have
molested Henry. Mother reported the abuse, but when she found out that
Adam had himself been sexually abused (apparently not by Father), she
also sought to help Adam by facilitating his admission to “a second chance
program” at an inpatient treatment facility. Despite the sexual abuse she
had suffered as a child and the difficult times she had endured in her
marriage, Mother was still willing and able to shield others from similar
abuse while even helping the perpetrator get the help that he needed—just
as she did for her husband when he was mentally unstable and needed to
be hospitalized.
In addition to all this, we again emphasize that the children were
not thriving at the time of trial, nor were they in adoptive placements.
Instead, the children had shown a sharp decline since being separated from
their parents. Initially, the reports on the children were largely positive.
For example, at a hearing that took place about a month after the October
2022 removal, the caseworker reported that Beth and Mary were “both
very sweet girls.” They were “doing well,” and visits with the parents had
“been good.” Henry was “very goofy and funny, and he enjoys building
things with Legos. He’s very smart.”
Contrasting those descriptions with what came later is
heartbreaking. By March 2023, Henry had become “aggressive with his
sister” and had “actually hit her in the face.” After entering a new foster
home, Henry had “regressed.” By May 2023, Mary’s play was “full of
themes of domestic violence, fighting, injury, fear, need for safety.” Beth
“expresse[d] a lot of anxiety” and “a lot of worry and a lot of fear.”
Understandably, Beth was “extremely worried about Mom and Dad.” And

29
by September 2023, Mary would have “extreme temper tantrums” lasting
“up to 45 minutes at a time,” Beth tried to kill another child, and both Henry
and Beth had been sent to psychiatric hospitals. Indeed, Henry was still in
a psychiatric hospital when the trial began. Although we do not doubt that
the department was doing its best to help the children with its limited
resources, whatever it was trying did not seem to be working. And it is
difficult to say that more of the same would be in the children’s best interest.
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, 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 sum, the department and the trial court short-circuited the process
that could have led to reunification. The court refused to retain jurisdiction
and extend the case, thereby depriving Mother of completing her few
remaining services. The department had not given Mother a clear directive
regarding Father. And the children were on a dangerous trajectory. For all
these reasons, we conclude that a reasonable trier of fact could not have
formed a firm belief or conviction that terminating Mother’s parental rights
was in the children’s best interest. See J.W., 645 S.W.3d at 741. We
therefore reverse the court of appeals’ judgment and render judgment
dismissing the department’s case against Mother. Cf. HNMC, Inc. v. Chan,

30
683 S.W.3d 373, 387 (Tex. 2024) (rendering a take-nothing judgment when
the evidence was legally insufficient to support the jury’s finding).
Because a best-interest finding is required for termination of parental
rights, we need not consider whether sufficient evidence supports the jury’s
findings that Mother endangered the children or failed to complete her
service plan. See Tex. Fam. Code § 161.001(b). Section 161.001(b)(2)
imposes a separate best-interest requirement with independent force, and it
is not automatically satisfied just because a parent committed one of the acts
enumerated in subsection (b)(1). To be sure, evidence that supports a
finding against a parent under (b)(1) may also be, and indeed often is,
relevant to best interest under (b)(2). But subsection (b)(2) is not merely a
box to check after determining that the requirements of (b)(1) have been
satisfied, and heightened appellate review applies to both subsections. The
two subsections are distinct—and require distinct scrutiny at all stages of
the judicial process—because it may well be in the child’s best interest to
remain connected with the parent even after the parent has committed one
of the actions described in (b)(1). That outcome may be especially likely
when, as here, the parent is on the path to rehabilitation and reunification.

3

Our judgment in Mother’s favor does not mean that the department
must immediately return the children to Mother and have no further
contact with her or the children. The record before us does not indicate
what has happened since trial. It is at least possible, for example, that
Mother is currently in no position to care for the children. If restoring them
to her physical custody does not pose any such risk, however, that
restoration should proceed; if material risks exist, the department has the

31
legal tools it needs to ensure the children’s protection with the least
amount of invasion into the family as possible.
In any event, in light of our disposition of Father’s appeal, Mother
will be the children’s sole legal parent. That means that once the children
are restored to her custody it will be up to Mother, and not Father, to
determine whether and to what extent he plays a role in the children’s
lives. She will have the same authority as all other parents concerning
interactions that her children have with others. And she will have the
same solemn responsibility as all other parents, too, so if Mother endangers
the children in the future, the department may assess whether it would be
appropriate to seek relief—potentially including termination—based on
that future behavior. But the department must now recognize Mother as
the children’s parent, with all the rights and obligations that status entails.

III

We turn now to Father, and here the situation is very different. The
department’s case against Mother was premised on her alleged failure to
protect the children from Father, and it was Father’s behavior that directly
threatened the family. It is therefore unsurprising that the result in
Father’s case diverges from the result in Mother’s. The record in this case,
partly summarized in this opinion, provides ample evidence from which
the jury could conclude that he posed a substantial risk of harm to the
children. That evidence was legally sufficient to support the jury’s findings
that Father endangered the children and that terminating his parental
rights was in the children’s best interest.
Nothing more is necessary for us to affirm the judgment of the court
of appeals as to Father. Because it would not add to the jurisprudence of

32
the State, we decline to express any further views as to that court’s
reasoning. See, e.g., Walker v. Baptist St. Anthony’s Hosp., 703 S.W.3d 339,
345 (Tex. 2024); Virlar v. Puente, 664 S.W.3d 53, 66 (Tex. 2023); Columbia
Valley Healthcare Sys., L.P. v. A.M.A. ex rel. Ramirez, 654 S.W.3d 135,
141 n.3 (Tex. 2022); Regent Care of San Antonio, L.P. v. Detrick, 610 S.W.3d
830, 839 & n.9 (Tex. 2020).

IV

The judgment of the court of appeals with respect to Mother is
reversed, and we render judgment in her favor. The judgment with respect
to Father is affirmed.

Evan A. Young
Justice

OPINION DELIVERED: June 5, 2026

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