TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00279-CV

B. S. and M. S., Appellants 

v. 

Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY

NO. 315625, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING

C O N C U R R I N G O P I N I O N

I concur in the Court’s judgment affirming the termination of Father’s and 

Mother’s parental rights. However, I would address the merits of Father’s and Mother’s 

challenges to the sufficiency of the evidence supporting the district court’s endangerment 

findings. See Tex. Fam. Code § 161.001(b)(1)(D), (E). Because the Court declines to review 

those findings, I cannot join its opinion. 

Ordinarily, to raise a challenge on appeal to the legal or factual sufficiency of the 

evidence in a civil jury trial, a party must preserve error by first raising the challenge in the trial

court. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220–21 (Tex. 1992); 

Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991). However, the Texas Supreme Court has 

cautioned that “error preservation in the trial court, which is a threshold to appellate review, 
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necessarily must be viewed through the due process prism.” In re M.S., 115 S.W.3d 534, 547 

(Tex. 2003). 

“The phrase ‘due process,’ although incapable of precise definition, expresses the 

requirement of fundamental fairness.” In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003) (citing 

Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 24 (1981)). “What fundamental fairness requires 

in a particular situation is determined by ‘considering any relevant precedents and then . . . 

assessing the several interests that are at stake.’” Id. (quoting Lassiter, 452 U.S. at 25). 

Although courts “presume that our rules governing preservation of error in civil cases comport 

with due process,” that presumption can be overcome when “assess[ing] the interests that are 

affected by our procedures for preservation of error.” Id. (citing Lassiter, 452 U.S. at 27). “[I]n 

the context of parental termination, ‘due process turns on the balancing of three distinct factors’: 

(1) ‘the private interests affected by the proceeding’; (2) ‘the risk of error created by the [s]tate’s 

chosen procedure’; and (3) ‘the countervailing governmental interest supporting use of the 

challenged procedure.’” In re N.G., 577 S.W.3d 230, 236 (Tex. 2019) (per curiam) (quoting 

In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002)).

“The private interest affected by a termination case is a parent’s fundamental 

liberty interest in the care, custody, and control of his or her children.” B.L.D., 113 S.W.3d at 

352 (citing Troxel v. Granville, 530 U.S. 57, 65–66 (2000)). This is “an interest far more 

precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982). “If the 

Department succeeds in terminating a parent’s rights, the State will have ‘worked a unique kind 

of deprivation . . . . A parent’s interest in the accuracy and justice of the decision to terminate his 

or her parental status is . . . a commanding one.’” B.L.D., 113 S.W.3d at 352 (quoting Lassiter, 

452 U.S. at 27). “Thus, the parent’s interests generally will favor reviewing unpreserved error 
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that might result in reversal of a judgment to terminate.” Id. Additionally, “until the State 

proves parental unfitness, the child and his parents share a vital interest in preventing erroneous 

termination of their natural relationship.” Santosky, 455 U.S. at 760.

The second factor, the risk of error, also weighs in favor of reviewing unpreserved

sufficiency challenges to section 161.001(b)(1)(D) and (E) findings. “[W]hen parental rights 

have been terminated under either section 161.001(b)(1)(D) or (E), that ground becomes a basis 

to terminate that parent’s rights to other children” under section 161.001(b)(1)(M). N.G., 

577 S.W.3d at 234. “Because only one ground is required to terminate parental rights—and 

therefore a section 161.001(b)(1)(M) ground based on a prior termination would be sufficient to 

terminate parental rights to another child in another termination proceeding—the collateral 

consequences of terminating parental rights under section 161.001(b)(1)(D) or (E) are 

significant.” Id. Declining to review the sufficiency of the evidence supporting (D) or (E)

grounds “creates the risk that a parent will be automatically denied the right to parent other 

children even if the evidence supporting the section 161.001(b)(1)(D) or (E) finding were 

insufficient.” Id.

The third factor weighs in favor of the State, which “has a strong interest in 

ensuring that our trial courts have an opportunity to correct errors as a matter of judicial 

economy.” B.L.D., 113 S.W.3d at 353. “Appellate review of potentially reversible error never 

presented to a trial court would undermine the Legislature’s dual intent to ensure finality in these 

cases and expedite their resolution.” Id. On the other hand, “[t]he State’s foremost interest in 

suits affecting the parent-child relationship is the best interest of the child” and therefore, the 

State “shares the parent’s interest in an accurate and just decision.” Id. “In that regard, the 

State’s interest favors reviewing unpreserved error that bears on the accuracy of the verdict.” Id. 
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Overall, however, “the State’s interests weigh heavily toward applying our procedural rules to 

bar review of unpreserved error.” Id.

Balancing the three factors, I would conclude that when a parent argues on appeal 

that there is insufficient evidence to support endangerment findings under either section 

161.001(D) or (E), due process demands that the appellate court review that claim, even if it was 

not preserved in the court below. The Texas Supreme Court reached a similar conclusion when 

addressing “whether a parent, whose parental rights were terminated by the trial court under 

multiple grounds, is entitled to appellate review of the section 161.001(D) and (E) grounds 

because of the consequences these grounds could have on their parental rights to other 

children—even if another ground alone is sufficient to uphold termination.” N.G., 577 S.W.3d at 

233. The court concluded that a parent is entitled to appellate review of those grounds as a 

matter of due process. It explained:

The state has a substantial, legitimate interest in protecting children and looking 

out for their best interests, but parents also have a fundamental liberty interest in 

the right to parent—particularly, a right to parent other children not involved in 

the termination proceeding at hand. In any parental termination proceeding, the 

state is immediately concerned with the child in that case, but the state’s interest 

in allowing certain grounds to remain unreviewed on appeal should not outweigh 

the parent’s interest in parental rights to another child. . . .

Balancing these factors, and considering that the risk of error has significant 

consequences for future parental rights, we conclude that the parent’s 

fundamental liberty interest at stake outweighs the state’s interest in deciding only 

what is necessary for final disposition of the appeal. Allowing section 

161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has 

presented the issue to the court thus violates the parent’s due process and due 

course of law rights.

Id. at 236–37 (internal citations omitted).
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Although N.G. did not address error preservation, I believe the court’s reasoning

in that case is applicable here. The State undoubtedly has an interest in resolving termination 

appeals expeditiously, and appellate courts declining to review unpreserved sufficiency 

challenges furthers that interest. However, parents have a fundamental liberty interest in the 

care, custody, and control of their children, and declining to review unpreserved sufficiency

challenges to endangerment findings under (D) and (E) grounds, when the parents have raised 

the issue on appeal, risks wrongfully depriving parents of their rights to future children in future 

termination proceedings. That is a risk I am unwilling to take. As the Texas Supreme Court 

explained in N.G.:

A parent may be denied the fundamental liberty interest in parenting only after 

they have been provided due process and due course of law, and terminating 

parental rights based on a challenged, unreviewed section 161.0001(b)(1)(D) or 

(E) finding runs afoul of this principle. When a parent has presented the issue on 

appeal, an appellate court that denies review of a section 161.001(b)(1)(D) or (E) 

finding deprives the parent of a meaningful appeal and eliminates the parent’s 

only chance for review of a finding that will be binding as to parental rights to 

other children.

Id. at 235 (internal citations omitted).

Finally, I am troubled that our Court does not appear to be consistent on 

this issue. Recently, a different panel of this Court handed down its opinion in A.K. and T.A.

v. Texas Department of Family and Protective Services, No. 03-22-00285-CV, 

2022 WL 14989625 (Tex. App.—Austin Oct. 27, 2022, no pet. h.) (mem. op.), a case that also 

involved a parent’s unpreserved legal and factual sufficiency challenges to endangerment 

findings under (D) and (E). “In the interest of justice and because of the importance of the rights 

involved,” this Court chose to review the findings. See id. at *5 n.3. I do not believe that it is 
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prudent for our Court to review unpreserved sufficiency challenges in some cases but not in 

others. We should consistently review those challenges or consistently decline to review them. I 

would choose to consistently review them.

For these reasons, I concur in the judgment only.

__________________________________________

Gisela D. Triana, Justice

Before Chief Justice Byrne, Justices Triana and Smith

Filed: November 10, 2022