## In T he Court of Appeals Seventh District of Texas at Amarillo

No. 07 - 22 - 00340 - CV IN THE INTEREST OF A.V., A CHILD On Appeal from the 364th District Court Lubbock County, Texas Trial Court No . 2021 - 543,252 , Honorable William Eichman II , Presiding



### April 25 , 202 3 CONCURRING OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ. MORTICIAN: Bring out your dead! PEASANT: Here ’ s one. MORTICIAN: Nine pence. DYING MAN: I ’ m not dead! MORTICIAN: What? PEASANT: Nothing! Here ’ s your nine pence. DYING MAN: I ’ m not dead! MORTICIAN: Here
– he says he ’ s not dead! PEASANT: Yes, he is.2 DYING MAN: I ’ m not! MORTICIAN: He isn ’ t. PEASANT: Well, he will be very soon. He ’ s very ill. DYING MAN: I ’ m getting better! PEASANT: No, you ’ re not. You ’ ll be stone - dead in a moment. 1 Horizontal stare decisis guarantees that holdings of intermediate appellate courts never die until a higher authority declares they are dead . In Texas , absent legislative enactment, such a declaration comes through the United Sta tes Supreme Court ; our state’s two highest appellate courts ; or our own c ourt , sitting en banc
. See Mitschke v. Borromeo , 645 S.W.3d 251 , 25 6 – 5 7 (Tex. 2022). T his Court’s prior opinions have held that evidence of a parent’s illegal drug use , alone, presents legally - sufficient evidence of grounds to support termination of parental rights pursuant to predicate ground ( E ) ’s course - of - conduct endangerment element. See In re J.L.C., 582 S.W.3d 421, 431 (Tex. App.
— Amarillo 2018, pet. denied) ( holdi ng that illegal drug use may support termination under subsection 161.001(b)(1)(E) because “ it exposes the child to the possibility that the parent may be impaired or imprisoned. ” ) (citation omitted) ; In re R.M. , No. 07 - 12 - 00412 - CV, 2012 Tex. App. LEXIS 10 239, at *8 (Tex. App.
— Amarillo Dec. 11, 2012, no pet.) (mem. op.) ( same ). However, in three opinions since 2021, one panel of this Court has stated in dicta that “ mere drug use , standing alone ” is not conclusive to support a finding under predicate grounds (D) or (E). 2

1 M ONTY P YTHON AND THE H OLY G RAIL (Michael White Prod. 1975). 2 In each of those cases, termination of the parent’s rights was affirmed because of the evidence that permitted a reasonable factfinder to causally infer harm to the children.3

See In re H.G. , No. 07 - 21 - 00278 - CV, 2022 Tex. App. LEXIS 2687, at *17 (Tex. App.
— Amarillo Apr. 25 , 2022, pet. denied) (mem. op.) ; In re J.S. , No. 07 - 21 - 00110 - CV, 2021 Tex. App. LEXIS 7701, at *12
– 13 (Tex. App.
— Amarillo Sep. 17, 2021 , pet. d enied ) (mem. op.) ; In re A.A. , 635 S.W.3d 430, 441 n.5 (Tex. App.
— Amari llo 2021, pet. granted)
. 3 Even though at least three justices on this four - member c ourt have now expressly or implicitly question ed the notion that mere illegal drug use, without more , would be sufficient to warrant the termination of parental rights under predicate grounds (D) or (E), horizontal stare decisis requires that the proper means to test the viability o f our former decisions must come through en banc review , direction by a higher court, or legislative edict
. Mitschke , 645 S.W.3d at 256 – 57. Until such time that our earlier holdings on this question are rejected or refined , we are duty - bound to apply them. In that light, I join with Chief Justice Quinn in affirming the trial court’s judgment.

Lawrence M. Doss Justice

3 In October 2022, the Supreme Court heard argumen ts in In re A.A.