In THE INTEREST OF G.A.M., a CHILD v. the State of Texas

Supreme Court of Texas
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No. 23-0968
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In the Interest of G.A.M., a Child

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On Petition for Review from the
Court of Appeals for the First District of Texas
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JUSTICE YOUNG, joined by Justice Devine, Justice Blacklock, and
Justice Busby, concurring in the denial of the petition for review.

This sad petition comes from a parent who unquestionably loves
and wants to care for her baby but who “has a mental or emotional illness
or a mental deficiency that renders the parent unable to provide for the
physical, emotional, and mental needs of the child.” Tex. Fam. Code
§ 161.003(a)(1). The Texas Department of Family and Protective Services
sought and was granted termination of the parental rights of O.T.F.C.,
whom I call Mother, under § 161.003 and § 161.001(b)(1)(O), (b)(2). The
court of appeals affirmed.
I concur in denying Mother’s petition for review. Factually, this
case reduces to two points: (1) Mother’s cognitive difficulties amount, as
she concedes, to some form of mental impairment that renders her unable
to independently parent her child; and (2) despite Mother’s impairment,
everyone agrees that she genuinely loves her daughter. I write separately
because I cannot help but wonder whether our law can find a solution
short of termination—the worst sanction a parent can receive, one we
properly call the death penalty of civil cases—when a loving parent’s chief
flaw is, to quote the statute, a “mental deficiency” over which she has
no control.

I

Mother suffers from “cognitive delays.” She was 22 at the time of
trial in March 2023, but her reading, writing, and math skills were at a
kindergartner’s level. Her verbal comprehension, perceptual reasoning,
working memory, and overall cognitive ability scored “Extremely Low”
during a psychological examination. The clinical psychologist who
performed the exam reported that Mother had significant
communication, health and safety, and academic deficiencies. The
psychologist testified that, because of these problems, Mother may not
“understand developmental needs of the child or may not know how to
respond in novel situations with her child.” A wealth of evidence shows
this concern to be well-founded—never a lack of love, but frequently a
lack of capability.
The leading theory behind Mother’s cognitive delays relates to a
tragic head injury she sustained in early childhood. When she was just
four, Mother’s “[eight]-year-old cousin pushed her off the 2nd floor of the
family residence in Mexico.” Mother fell headfirst. She was hospitalized
for two days and underwent surgery.
Whatever its cause, the deficiency renders Mother unable to
independently parent G.A.M., whom I call Daughter. Mother was 21
when Daughter was born on December 24, 2021. The father’s identity
is unsubstantiated, and Mother lacks any contact information for him.

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Nearly three months after Daughter’s birth, the Department started
investigating Mother when it learned that Daughter was severely
underweight. There was concern that Mother forgot to feed Daughter;
Mother’s family members were calling to “remind her to feed the baby.”
When feeding Daughter, Mother struggled “measuring the amount
of formula to go into the bottle.” She also struggled changing Daughter’s
diaper. On one occasion, she was unable to change the diaper without
help, and the “baby’s genital area was inflamed with a diaper rash, and
[Mother] did not know to treat the baby’s rash with diaper cream on the
baby while changing her.” Mother and Daughter lived in a home where
“[e]vidence of human or animal waste was found throughout [the] living
quarters.” Daughter was sometimes left unattended, and she needed
medical treatment for torticollis and plagiocephaly.*
Daughter was eventually removed from Mother and placed with
foster parents. At trial, the foster mother described the child’s dire
condition upon her arrival into their family:
[Daughter] was exhausted. . . . She had a hard time being
lively enough to take, like, a 2-ounce bottle at a time. She
was pretty grimy and dirty. She had a lot of dirt under her
fingernails, which were long and not clipped. She had
cradle cap, and it looked like it hadn’t really been combed
or shampooed because her hair was kind of glued to her
head. And then pretty quickly, and for probably the first

* “Plagiocephaly” is “an asymmetric craniostenosis due to premature

closure of the lambdoid and coronal sutures on one side; characterized by an
oblique deformity of the skull.” Plagiocephaly, Stedman’s Medical Dictionary
(5th unabridged lawyers ed. 1982). “Torticollis” refers to “stiffneck; a
contraction, often spasmodic, of the muscles of the neck, chiefly those supplied
by the spinal accessory nerve; the head is drawn to one side and usually rotated
so that the chin points to the other side.” Torticollis, Stedman’s Medical
Dictionary (5th unabridged lawyers ed. 1982).

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week, we found debris in her stools. That was
concerning. . . . [T]here would be a clump in the stool and
it—you know, one time—it very clearly came from either a
stuffed animal or a blanket, something fuzzy, like poly-
fiber, something like that.
Joining the foster home gave Daughter new life. She gained weight
and began meeting developmental milestones. The foster parents
arranged successful medical treatment for Daughter’s torticollis and
plagiocephaly, including helmet therapy. Pictures show Daughter
growing up happy and healthy—smiling on a swing set, being held by her
foster mother at a zoo, playing on a piano with her foster father and
sister. Daughter “attends baby gymnastics once a week.” She has toys
in her own bedroom, which appears clean and welcoming. Daughter has
bonded with the foster parents, who are willing to adopt her and care for
her. They have stated a firm intention to allow Daughter a supervised
relationship with Mother. Foster parents like these take the initiative
to positively transform a child’s life; they warrant the deepest gratitude
from our State and its citizens. The prospect of these particular parents
adopting seems like a very good outcome for Daughter.
But what about Mother? Despite the problems that I have
described, everyone agrees that she loves Daughter. At trial, she opposed
adoption and pleaded for Daughter’s return: “[S]he is my baby. My
baby. . . . Please my baby come home.” She repeatedly stated to the
clinical psychologist conducting her psychological exam that she would do
whatever it would take to get Daughter home. Mother also “expressed
she wants her baby back several times at each visit” with a
representative from Child Advocates. The foster mother testified that
Mother “obviously” cares for Daughter a “great deal.” The Department’s

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caseworker likewise indicated that Mother loves Daughter. Nothing in
the record makes this point contestable at all, and the court of appeals
specifically noted that “[i]t was not disputed that Mother loves
[Daughter].” No. 01-23-00301-CV, 2023 WL 6393913, at *7 (Tex. App.—
Houston [1st Dist.] Oct. 3, 2023).
Yet the Department successfully pursued termination of Mother’s
parental rights under § 161.003 and § 161.001(b)(1)(O), (b)(2). Mother
appealed. She argued that termination was not in Daughter’s best
interest under § 161.001(b)(2). 2023 WL 6393913, at *1. The court of
appeals overruled her argument and affirmed. Id. at *8. Mother
petitioned this Court for review, where she raises the same sole issue.

II

Termination proceedings require two showings. First, “[t]o
terminate parental rights, the Legislature requires the Department to
establish by clear and convincing evidence at least one of the predicate
findings under Family Code Section 161.001(b)(1).” In re R.J.G., 681
S.W.3d 370, 377 (Tex. 2023); see also § 161.003(a)(1)–(4). Second,
“regardless of which predicate it asserts to justify termination, the
Department must also prove by clear and convincing evidence that
termination is in the child’s best interest.” R.J.G., 681 S.W.3d at 377;
see also § 161.003(a)(5).
Because Mother only challenges the second showing, I agree with
the Court’s decision to deny her petition for review. Viewing the
evidence summarized above (and discussed in the opinion below) in the
light most favorable to the finding, see In re A.C., 560 S.W.3d 624, 631
(Tex. 2018), the court of appeals properly concluded that a reasonable

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fact finder could form a firm belief or conviction that terminating
Mother’s parental rights was in Daughter’s best interest.
I write separately to discuss the first showing. Unlike the best-
interest findings, the predicate findings focus on the parent. They
promote a careful balance of the competing interests at stake: “the
parents’ fundamental interest in maintaining custody and control of
their children is balanced against the State’s fundamental interest in
protecting the welfare of the child.” In re A.B., 437 S.W.3d 498, 505 (Tex.
2014) (referencing § 161.001). Through the predicates, the legislature
“has safeguarded the parent’s fundamental interest by limiting the
circumstances in which the State’s interest can overcome the parent’s
interest.” Id. Although a child’s best interest is paramount, a court
cannot terminate a parent’s rights to that child absent finding one or
more predicates met. I take the predicates of § 161.001(b)(1)(O) and
§ 161.003(a)(1)–(4) in turn.

A

“Section 161.001(b)(1) sets forth twenty-two predicate grounds for
termination.” R.J.G., 681 S.W.3d at 377. They target various “acts or
omissions” of the parent. See A.C., 560 S.W.3d at 630. For example,
termination may be proper where the parent “voluntarily left the child
alone . . . and expressed an intent not to return,” § 161.001(b)(1)(A),
“knowingly allowed the child to remain in conditions or surroundings
which endanger . . . the child,” § 161.001(b)(1)(D), “engaged in conduct . . .
which endangers . . . the child,” § 161.001(b)(1)(E), “used a controlled
substance . . . in a manner that endangered the health or safety of the
child,” § 161.001(b)(1)(P), or “knowingly engaged in criminal conduct,”

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§ 161.001(b)(1)(Q).
The predicate in paragraph O is one of just two that “permit
termination for violating a court order.” R.J.G., 681 S.W.3d at 378.
Paragraph O allows termination where the child was initially removed
from the parent due to “abuse or neglect,” and the parent then “failed to
comply with the provisions of a court order that specifically established
the actions necessary for the parent to obtain the return of the child.”
§ 161.001(b)(1)(O). Such court-ordered “service plans,” as we call them,
consist of “lengthy and detailed series of requirements designed to show
that retaining the parent-child relationship remains in the child’s best
interest, including by demonstrating that the problems leading to the
removal of the child have been remedied.” In re A.P., 672 S.W.3d 132, 133
(Tex. 2023) (Young, J., concurring in the denial of the petition for review).
People should obey court orders, especially if doing so is essential
to the restoration of full parental rights. One reason for paragraph O’s
legitimacy as a basis for termination is that parents who can comply, yet
refuse to do so, illustrate by that very refusal the kind of indifference (or
worse) to their child that led to the child’s removal in the first place. By
the same token, however, paragraph O is problematic as a basis for
termination when, as in this case, the Department alleges a parent’s
disabling mental deficiency. Such a parent’s “fail[ure]” to comply with
their service plan seems predestined, as the difficulty of complying with
a court-ordered service plan is presumably greater for someone with
massive cognitive difficulties. Given their length and detail, service plans
“can be difficult—perhaps impossible—to comply with fully.” In re A.A.,
670 S.W.3d 520, 531 (Tex. 2023). If that is true for anyone, it is especially

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for someone like Mother, whose cognitive abilities are “extremely low”
and at a “kindergartner’s level.” Expecting her to comply with the same
kind of court order as someone without these problems seems fanciful.
But my concerns are at least assuaged in part. For one thing, even
if the State continues to invoke paragraph O against such parents—
because paragraph O is generally the easiest burden for the State to lift
and appears to be part of nearly every parental-termination case—that
invocation may well fail in cases like this one if it is challenged. A parent,
after all, can withstand termination under paragraph O by proving that
she was “unable to comply with specific provisions” of the service plan
after having made a good-faith effort to comply. § 161.001(d). This
provision provides at least some protection for mentally impaired
parents. Mother, however, makes no argument on that ground. She
received a service plan with a laundry list of requirements. She
apparently “failed” to complete a required psychiatric evaluation and
individual counseling. Mother’s counsel contended at trial that Mother’s
service plan was not accommodated to reflect her mental disability. But
no such contention is part of this appeal, although the extent to which
Mother could understand and comply with her service plan is unclear.
“[O]ur judicial antennae are raised and attuned to potential
misuses of (O).” A.A., 670 S.W.3d at 531. While paragraph O provides no
basis for reversing the court of appeals’ decision in this case, my continued
hope is that courts will approach paragraph O with highly alert antennae
whenever that ground is invoked but seems to fit uneasily in a given case.
See id. at 536, 543 (Young, J., dissenting). It seems obvious to me that
paragraph O’s invocation should be regarded with suspicion when

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deployed against a parent with a mental deficiency that may obstruct her
ability to comply with a service plan. There are other ways to protect
children if a parent is incapable of caring for them—but resort to
paragraph O is the least plausible one. A parent like Mother would
typically fail to complete a service plan not because of contempt for the
legal process or a lack of desire to achieve reunification, but simply
because of objective inability.

B

One reason for skepticism of the overuse of paragraph O—but
another basis for assuaging my concern—is that the Family Code makes
it unnecessary to enlist it in contexts like this one. Section 161.003 is a
distinctly codified termination provision that complements paragraph O,
because if § 161.003’s requirements are met, it authorizes termination
even when a parent could not reasonably be held responsible for failing
to comply with a service plan. This Court has cited § 161.003 just a
handful of times. We have never, to my knowledge, applied its subsections
to a particular case. Like § 161.001’s termination provisions, § 161.003
authorizes termination when in the child’s best interest. But as a
predicate matter, the terminating court must find, among other things,
that the parent suffers from a disabling mental deficiency or illness:
(a) The court may order termination of the parent-child
relationship in a suit filed by the Department of Family
and Protective Services if the court finds that:
(1) the parent has a mental or emotional illness or a
mental deficiency that renders the parent unable to
provide for the physical, emotional, and mental needs of
the child;
(2) the illness or deficiency, in all reasonable

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probability, proved by clear and convincing evidence,
will continue to render the parent unable to provide for
the child’s needs until the 18th birthday of the child;
(3) the department has been the temporary or sole
managing conservator of the child of the parent for at
least six months preceding the date of the hearing on
the termination held in accordance with Subsection (c);
(4) the department has made reasonable efforts to
return the child to the parent; and
(5) the termination is in the best interest of the child.

§ 161.003 (emphasis added); see also § 161.003(b), (d) (requiring
appointment of an attorney ad litem to represent the parent’s interests
during the proceeding, unless the parent retains another attorney).
Section 161.003(a)’s predicate findings are outliers compared to the
“acts or omissions” of § 161.001(b)(1). “Most of the petitions for review
this Court receives in parental-termination cases involve parents whose
severe abuse or abandonment of their children, debilitating drug
addiction, or violent and criminal behavior provide the clear and
convincing evidence required for imposition of the draconian remedy of
termination.” In re A.M., 630 S.W.3d 25, 26 (Tex. 2019) (Blacklock, J.,
concurring in the denial of the petition for review). Section 161.003, by
contrast, permits termination without any moral condemnation of the
parent—where the parent has a disabling condition attributable to
circumstances beyond the parent’s control. Such is the case for Mother,
at least, whose cognitive delays appear attributable to the tragic two-
story head-first fall she suffered in early childhood.
The closing argument from Daughter’s ad litem attorney helps
frame the § 161.003 analysis here: “We’re not here to beat up on Mother

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or to say that she hasn’t tried. We’re here to acknowledge that her
cognitive disability impairs her ability to care for a child by herself.” I
do not take anyone involved in this case as disagreeing with those
statements. But we also cannot sugarcoat what § 161.003 says in
authorizing termination. Mother is deemed “deficient” or “ill,” so much
so that she is fundamentally “unable” to be a parent.
Such a demoralizing judgment by one’s own government can lead
to the gravest imaginable consequence. “Termination of parental rights,
the total and irrevocable dissolution of the parent-child relationship,
constitutes the ‘death penalty’ of civil cases.” In re K.M.L., 443 S.W.3d
101, 121 (Tex. 2014) (Lehrmann, J., concurring). It means ending
Mother’s “very status as Daughter’s mother. In the eyes of the law, they
would become strangers.” A.P., 672 S.W.3d at 133 (Young, J., concurring
in the denial of the petition for review). At the very least, finding someone
morally innocent yet medically unable to be a parent should be a
judgment reached only as a last resort, just as any “death penalty” is a
last resort.
I do not disagree that the record here satisfies these requirements
under the standard of review that we currently employ. But I struggle
coming to terms with the conclusion that, because of her disability, the
only way to protect Daughter is that Mother must be permanently and
legally estranged from her.
She loves Daughter; she appeared at trial and begged for
Daughter’s return. Mother is, by herself, surely “unable to provide for the
physical, emotional, and mental needs” of Daughter. § 161.003(a)(1).
And the record does not reflect that she has a family or other support

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system who could help her provide for Daughter. Yet Mother has done
nothing intentional to harm Daughter. What the law calls her “mental
deficiency” leaves her unable to appreciate and attend to her child’s
essential needs. But by every indication, her deficiency arises from
circumstances beyond her own making—this is not a self-inflicted
termination case (drugs, violence, malice, etc.) of the sort that Texas
courts so often confront. It is therefore harder to see how Mother’s
fundamental interest in being a parent to Daughter—and, indeed,
Daughter’s fundamental interest in the relationship with Mother, like
any child’s interest in a relationship with her own parents—was properly
safeguarded.
Before she joined the bench of this Court, my predecessor, Justice
Guzman, observed “the failure of Texas law to adequately address
parental competency in the context of termination of parental rights.”
In re E.L.T., 93 S.W.3d 372, 377 (Tex. App.—Houston [14th Dist.] 2002,
no pet.) (Guzman, J., concurring). She suggested that a parent has “a
due process right to a parental competency hearing prior to a proceeding
to terminate parental rights,” something which the Family Code does
not guarantee them. Id. “A competency hearing would provide the trial
court with an opportunity to gain a better understanding of the parent’s
capabilities as well as to explore alternative remedies.” Id. at 380
(emphasis added).
Many courts of appeals have cited or discussed Justice Guzman’s
concurrence, although they do not necessarily agree that there is a
problematic Family Code gap regarding parental competency. One case
questioned whether a competency hearing was constitutionally required

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if the parent already receives an ad litem attorney. See In re J.P.-L., 592
S.W.3d 559, 586–87 (Tex. App.—Fort Worth 2019, pet. denied) (“But
even a competency hearing, within the current statutory scheme, would
appear to make little difference when compared to the child’s best
interest.”); see also § 161.003(b). Another did not focus on competency
hearings, but questioned how interjecting competency issues into a
termination proceeding might unnecessarily prolong the case. See In re
R.M.T., 352 S.W.3d 12, 19, 23 (Tex. App.—Texarkana 2011, no pet.)
(discussing Justice Guzman’s concurrence and stating that delaying trial
“until a return of competence would contravene the State’s and the child’s
interest in a final decision so that the child’s adoption or placement in a
stable home or return to the parent is not unduly prolonged”).
I do not commit myself to any position regarding these cases, and
I do not contend that a competency hearing in this case would change
the outcome. We are not presented with a constitutional question here,
and it is otherwise presumably true that § 161.003 reflects the
legislature’s careful and proper policy choices, which I respect.
Section 161.003 may have helped save Daughter’s life, given her dire
condition upon entry into the foster home. I do not wish to be
misunderstood as suggesting that parents mentally or physically
incapable of taking care of children should have custody and control of
those children during the period of such disability (which may be
permanent).
But I wonder whether our legal system could save Daughter, and
offer her the bright future that her foster parents have made possible,
short of legally estranging her from her loving Mother. I take comfort

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in this foster family’s expressed willingness to maintain a bond between
Mother and Daughter, albeit not one with a formal legal status. Perhaps
formalizing the State’s obligation to ensure such access for other loving
but disabled parents would be a way to bridge the gap—to protect
children without destroying bonds with loving natural parents. This
question may be one for legislative consideration. Justice Guzman’s call
for consideration of “alternative remedies” strikes me as well worth the
effort.
* * *
Denying Mother’s petition for review means that Mother will
officially cease to be Daughter’s mother. This result is troubling, but I
cannot see it as improper under current Texas law and the facts of this
case. I therefore concur, even as I express my concern for the rights of
all involved, with an eye toward future cases.

Evan A. Young
Justice

OPINION FILED: June 28, 2024

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