in the Interest of M.P., a Child

Supreme Court of Texas
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No. 21-0360
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In the Interest of M.P., a Child
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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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PER CURIAM

Texas Family Code Section 161.001(b) allows for involuntary
termination of parental rights if a court finds by clear and convincing
evidence both that a parent engaged in one or more enumerated
predicate grounds for termination and that termination is in the best
interest of the child. TEX. FAM. CODE § 161.001(b)(1)(A)-(U), (b)(2). Only
one predicate ground and a best interest finding are necessary for
termination, so “a court need uphold only one termination ground—in
addition to upholding a challenged best interest finding—even if the
trial court based the termination on more than one ground.” In re N.G.,
577 S.W.3d 230, 232 (Tex. 2019) (citations omitted). However, due
process requires that courts also review termination under
Subsections 161.001(b)(1)(D) and (E) even after affirming termination
on another ground because of the collateral effects of termination on
those grounds. Id. at 237. The issue here is whether remand is the
proper remedy for a successful factual-sufficiency challenge to (D) and
(E) when termination is otherwise valid on another predicate ground.
We conclude it is not.
On June 26, 2018, the Department of Family and Protective
Services (Department) received allegations that Mother and Father
were physically neglecting then-four-week-old M.P., using drugs, and
keeping an unclean and unsafe home. The Department received
additional allegations that M.P. had a swollen neck, was lethargic, and
had bruising on her head. A worker from the Department visited the
home and confirmed that M.P. had bruising on her head. But there were
no signs that the bruising was caused by Mother or Father, nor were
there signs of an unsafe living environment. Both parents also tested
negative for drugs.
The day after the worker’s visit, M.P. was admitted to the hospital
for severe brain bleeding where she tested positive for cocaine and
methamphetamine. The Department drug tested Mother and Father.
Both parents’ urinalyses were negative; however, Mother’s hair follicle
tested positive for methamphetamine and amphetamine. Father
refused to take a hair-follicle test but admitted to using marijuana and
methamphetamine. The Department took emergency custody of M.P.,
which the trial court blessed, and ultimately placed her with Father’s
aunt and uncle.
The Department prepared a service plan that in part required
Father to schedule and complete a drug-and-alcohol assessment and
follow recommendations for treatment; submit to random drug testing;
schedule and complete a psychological evaluation; schedule and
participate in individual counseling; complete parenting classes; and

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attend visitations with M.P. as scheduled in the Department’s visitation
plan. The trial court found that Father understood the plan and ordered
him to follow it. Father did not fully comply with the service plan. He
failed to submit to drug testing and attend his psychological evaluation
appointments, and he had few visits with M.P.
The Department requested termination of both parents’ rights.
Before trial, Mother signed an affidavit voluntarily relinquishing her
parental rights, see TEX. FAM. CODE § 161.103, so trial commenced on
the termination of Father’s rights. Father did not appear for trial but
was represented by counsel. The court heard testimony from the case
investigator, one of Father’s Department caseworkers, a supervisor with
the Court Appointed Special Advocates, and Father’s aunt.
The trial court terminated Father’s rights and named the
Department as the sole permanent managing conservator of M.P. The
trial court based termination on three predicate grounds—
(1) endangerment, (2) failure to comply with the court-ordered family-
service plan, and (3) use of a controlled substance in a manner that
endangered the health or safety of M.P.—and found that termination
was in M.P.’s best interest. See id. § 161.001(b)(1)(D), (E), (O), (P), (b)(2).
Father appealed, challenging the legal and factual sufficiency of
the evidence supporting the trial court’s predicate findings and the
appointment of the Department as the sole permanent managing
conservator. 618 S.W.3d 88, 93-94 (Tex. App.—Houston [14th Dist.]
2020). The court of appeals affirmed termination under
Subsection 161.001(b)(1)(O) for failure to comply with the service plan,
and it found that termination was in M.P.’s best interest. Id. at 103,

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109.
Because a predicate ground for termination under
Subsection 161.001(b)(1)(M) is prior termination for endangerment
under Subsection 161.001(b)(1)(D) or (E), the court of appeals also
examined the evidentiary sufficiency of termination for endangerment
under (D) and (E). Id. at 103 (citing In re N.G., 577 S.W.3d at 237). The
court of appeals held that the evidence for termination under both
grounds was legally but not factually sufficient. Id. at 110-11. As the
remedy for the successful factual-sufficiency challenge, the court of
appeals remanded the case for a new trial on (D) and (E). Id. at 111.
Justice Wise dissented. He would have held that the evidence
was factually sufficient to terminate Father’s rights under (D) and (E).
Id. (Wise, J., dissenting). He was also skeptical that In re N.G. required
factual, rather than just legal, sufficiency review and thus believed
remand was unnecessary. Id. at 113. He noted that Father’s rights
would not be affected by any decision on remand and thus remand
violated the requirement that there be a live case or controversy. Id.
Justice Wise called for this Court to, in part, review the majority’s
“unprecedented course” of remanding the case. Id. at 112-13.
The court of appeals denied en banc review. Two justices wrote
separately, also calling for us to hear the case to address the remedy of
a new trial. Justice Spain noted that the remedy for a successful
factual-sufficiency challenge was remand for a new trial but was unsure
what the scope of the new trial would be on remand. Id. at 114-15
(Spain, J., concurring in denial of en banc review). By contrast, Chief
Justice Christopher would have held that the Department got its

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remedy—termination of Father’s parental rights—and thus, the correct
disposition is to modify the judgment to reflect termination on solely the
affirmed predicate ground. Id. at 117 (Christopher, C.J., concurring in
denial of en banc review).
Father and the Department cross-petitioned for review in this
Court. Both challenge the court of appeals’ decision to remand the case
for a new trial on factual sufficiency, albeit for different reasons. Father
argues that the court of appeals should have also remanded the case on
the best interest finding since it partially reversed the trial court on two
of the predicate grounds for termination.
The Department, however, contends that any remand was
inappropriate and created mootness and delay of permanency issues.
The ultimate issue—termination—is already decided, yet permanency
for M.P. is stalled indefinitely until after retrial on (D) and (E) and
possibly appeal. The Department further argues that remand is
improper under Texas Rule of Appellate Procedure 43.2 because that
rule provides for remand only upon reversal and, here, the court of
appeals affirmed the trial court’s ultimate judgment. See TEX. R. APP.
P. 43.2(d) (“The court of appeals may . . . reverse the trial court’s
judgment and remand the case for further proceedings . . . .”).
We agree that the court of appeals erred in ordering a limited
remand. In In re N.G., we held that, because prior termination for
endangerment is a predicate ground for a future termination, due
process and due course of law require that the court of appeals review
the legal and factual sufficiency of the evidence supporting a trial court’s
order of termination under Subsections 161.001(b)(1)(D) and (E) when

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challenged on appeal. 577 S.W.3d at 237; see also In re Z.M.M., 577
S.W.3d 541, 543 (Tex. 2019).
Here, the court of appeals determined that there was legally and
factually sufficient evidence to support terminating Father’s rights
under Subsection 161.001(b)(1)(O) but factually insufficient evidence to
support termination under (D) and (E). Thus, the proper remedy was to
affirm the trial court’s termination under (O) and strike the (D) and (E)
findings, which would dispose of the case. Other courts of appeals have
followed this practice. See, e.g., In re N.N.M., No. 04-19-00369-CV, 2020
WL 4808704, at *4-7 (Tex. App.—San Antonio Aug. 19, 2020, no pet.)
(“Because there is no evidence to support the jury’s finding under
subsection (D), we modify the trial court’s order of termination to delete
that finding.”); In re L.G., No. 06-18-00099-CV, 2020 WL 4229330, at *9
(Tex. App.—Texarkana July 24, 2020, no pet.) (“[W]e modify the trial
court’s order of termination by striking paragraph 8.2.1, relating to the
trial court’s finding pursuant to Section 161.001(b)(1)(D) of the Texas
Family Code, and by striking paragraph 8.2.2, relating to the trial
court’s finding pursuant to Section 161.001(b)(1)(E) of the Texas Family
Code.”); In re H.J.Y.S., No. 10-19-00325-CV, 2019 WL 8071614, at *10
(Tex. App.—Waco Feb. 26, 2019, pet. denied) (“Having found that the
evidence was factually insufficient for the jury to have found
[endangerment under] Section 161.001(b)(1)(E), we order that the
judgment be modified to delete that finding.”).
Striking the insufficiently supported findings avoids the
mootness issues raised by the Department and the concurrences in the
denial of en banc review. As Chief Justice Christopher noted, because

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the Department already got its requested relief, “even if on remand the
trial court were to again find that Father committed a predicate act
under (D) or (E), it could not be the case that Father’s rights to M.P.
were terminated on those grounds.” 618 S.W.3d at 116. Thus, we hold
that the court of appeals erred in remanding the case for a new trial on
the factually insufficient predicate grounds.
Having corrected the error that divided the en banc court of
appeals, we decline to disturb the court of appeals’ judgment on the
parties’ remaining issues, without regard to their merits. Without
hearing oral argument, see TEX. R. APP. P. 59.1, we grant the
Department’s petition for review, reverse the part of the court of appeals’
judgment remanding the case to the trial court for a new trial, and
render judgment striking findings 7.2.1. and 7.2.2. on grounds (D) and
(E) from the trial court’s final order.

OPINION DELIVERED: February 4, 2022

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