Supreme Court of Texas

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No. 21-0998

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In the Interest of A.A., G.A., and K.A., Children

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On Petition for Review from the

Court of Appeals for the Seventh District of Texas

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Argued October 4, 2022

CHIEF JUSTICE HECHT delivered the opinion of the Court, in which 

Justice Lehrmann, Justice Boyd, Justice Devine, Justice Bland, and 

Justice Huddle joined.

JUSTICE YOUNG filed a dissenting opinion, in which Justice 

Blacklock and Justice Busby joined.

By statute, a Texas court “may order termination of the parentchild relationship if . . . the parent has . . . failed to comply with” a 

service plan ordered by the court “as a result of the child’s removal from 

the parent . . . for the abuse or neglect of the child”.1 Here, Mother 

challenges termination of her parental rights under this provision, 

asserting that her children were ordered removed to the Department of 

Family and Protective Services from Father’s home and for his 

1 TEX. FAM. CODE § 161.001(b)(1)(O).
2

wrongdoing, not hers. But removal is not merely relocation. The court’s 

order ended both parents’ legal custody of the children and transferred 

them to the Department’s statutory conservatorship based on evidence 

of misconduct by both parents that amounted to abuse and neglect.

In In re E.C.R., we held that a mother’s rights to one child could 

be terminated due to her abuse and neglect of another child because her 

conduct toward the one placed the other’s health and safety at risk.2 By 

a similar analysis, here we hold that sufficient evidence exists that 

Mother’s misconduct in exposing her children to Father’s abuse and 

neglect was itself abuse and neglect on her part. The evidence before the 

court when it signed the order of removal and the testimony 

subsequently presented at trial are sufficient to support the trial court’s 

finding that Mother’s acts and omissions, which render her an unfit 

parent, were easily within the broad statutory definition of “abuse or 

neglect”. 

We hold that the trial court’s findings that Mother failed to 

comply with her service plan and that termination of her rights is in her 

children’s best interest are supported by legally sufficient evidence. And 

we reject Mother’s challenges to the trial court’s jurisdiction under the 

Uniform Child Custody Jurisdiction and Enforcement Act.3

We affirm the judgment of the court of appeals.4

I

Mother, age 34 at the final termination hearing, first 

2 402 S.W.3d 239, 240 (Tex. 2013).

3 TEX. FAM. CODE §§ 152.101-152.112.

4 635 S.W.3d 430 (Tex. App.—Amarillo 2021).
3

experimented with methamphetamine in high school and became 

addicted around the age of 20. In her 20s and early 30s, Mother cycled 

through several periods of sobriety and relapse. During that time, she 

married Father, and their three girls, A, G, and K, were born. Father 

also used drugs, and the marital relationship was marked by domestic 

violence. When K was still an infant, all three girls went to live with 

their maternal grandmother, Marilyn, and they remained in her care for 

some seven years. Mother, Father, Marilyn, and the girls all lived in 

Texico, New Mexico, on the Texas–New Mexico border.

In 2017, Mother and Father were divorced in New Mexico. The 

stipulated divorce decree gave Father “the sole legal care and physical 

custody” of the children with Mother’s visitation to be as “agreed upon 

by the parties.” Mother testified at trial in this case that she agreed to 

give custody of the three girls to Father—knowing that he, too, used 

drugs and could be physically violent—because another child of hers had 

recently died and she “was trying to cope with that”. She “figured 

[Father] was doing better than [she] was at the time” and so the children 

“would be better with him”.5 When pressed about the impact of Father’s 

domestic violence on her decision to give him custody, Mother reasoned:

Well, he had taken anger management classes and he had 

been in a -- what is it, halfway house kind of -- after he got 

out of prison and I -- I had seen a noticeable change in his 

anger so I thought they would be okay. Plus his mother was 

with him also to help. So . . . I figured they would be okay.

After the divorce, Father and the children moved across the 

border to Amarillo, Texas. The next year, Mother had another child in 

5 The record does not reflect the circumstances of the child’s death. 
4

New Mexico. That child lives with her father. Mother’s testimony 

indicates that because of an open CPS investigation in New Mexico, she 

is permitted only supervised visits with that child.

The record does not show how much contact Mother had with A, 

G, and K after they moved to Texas with Father. Mother testified, 

however, that one September,6 G told her that Father had “lost his 

temper and held her down on the bed and hit her [on] her side.” Mother 

testified that she reported the incident to the police. The incident led to 

Father’s indictment in 2021 for causing intentional bodily injury to a 

child. The indictment states that the incident occurred on September 21, 

2019, shortly before the Department became involved with the family. 

Investigator Ashley Francis testified that in October 2019, DFPS 

received a tip that A, G, and K—then 10, 9, and 7, respectively—were 

being left alone, unsupervised. When Francis met with Father, he 

admitted that he had used methamphetamine and marijuana a few days 

before. DFPS formed a safety plan that required Father’s mother, 

Lanetta, to either keep the girls herself or move into Father’s home and 

supervise all interactions between Father and the girls. The plan lasted 

only about five months. In early April 2020, Francis stopped by Father’s 

home and found him home with the children, unsupervised. The trial 

court granted the Department’s petition for removal of the children from 

both parents, and they were immediately moved into a foster home.

In the affidavit supporting removal, Francis alleges that when 

6 Mother testified that she thought the incident occurred in September 

2018. But as explained above, the record reflects that the incident occurred in 

September 2019.
5

she contacted Father in October 2019, he did not have contact 

information for Mother and said that he believed her to be incarcerated. 

The Department was unable to locate her on its own. In early 2020, 

Father reported that Mother was in a rehabilitation facility in New 

Mexico but could not provide any information about it. A few weeks 

later, he said that Mother was no longer there. Father still could not 

provide a phone number for Mother but offered to contact her through 

social media to give her Francis’ contact information.

Francis finally made contact with Mother in February 2020—four 

months after the Department initiated its investigation. In that phone 

call, Mother told Francis that she and Father “cannot get along, that 

there had been domestic violence in their relationship, and that she had 

concerns regarding his drug use.” Francis spoke to Mother again in April 

after the children were moved into foster care. Francis asked Mother to 

take a drug test, which was positive for methamphetamine. 

Termination proceedings ensued, which we detail below. The trial 

court ultimately terminated Mother’s rights under 

Section 161.001(b)(1)(O) for failure to comply with her service plan. The 

court terminated Father’s rights too, but he did not appeal.

II

Before turning to the main issue, we address Mother’s argument 

that the trial court lacked jurisdiction under the Uniform Child Custody 

Jurisdiction and Enforcement Act to terminate her parental rights. 

Texas and New Mexico have both adopted the UCCJEA. In Texas, the 
6

Act is codified in Chapter 152 of the Family Code.7

Under Section 202 of the Act, the court that has made an initial 

child-custody determination “has exclusive[,] continuing jurisdiction 

over the determination until” that court declines or loses jurisdiction in 

accordance with the Act.8 Under Section 203, a second court “may not 

modify a child custody determination made by a court of another state 

unless” the second court would have original jurisdiction under the Act 

and:

(1) the initial court determines it no longer has exclusive, continuing 

jurisdiction under Section 202 or that the state of the second court 

would be a more convenient forum under Section 207; or

(2) the initial court or the second court determines that the child and 

the child’s parents no longer reside in the state of the initial 

court.9

Both sections authorize a court to exercise emergency temporary 

jurisdiction over a child within its borders when it is necessary to protect 

the child. Once a court has done so, that court assumes a duty to 

communicate with any court that made an initial custody determination 

involving the child to determine whether the initial court will retain or 

relinquish jurisdiction.10 A record must be made of the communication, 

and the parties must be notified and given access to it.11

7 TEX. FAM. CODE §§ 152.001-152.317; cf. N.M. STAT. ANN. §§ 40-10A101 to 40-10A-403.

8 TEX. FAM. CODE § 152.202(a); see N.M. STAT. ANN. § 40-10A-202(a). 

9 TEX. FAM. CODE § 152.203; see N.M. STAT. ANN. § 40-10A-203. 

10 TEX. FAM. CODE §§ 152.110(b), 152.204(d); see N.M. STAT. ANN. §§ 40-

10A-110(a), 40-10A-204(d).

11 TEX. FAM. CODE § 152.110(f); see N.M. STAT. ANN. § 40-10A-110(d).
7

In 2017, the Ninth Judicial District Court of Curry County, New 

Mexico, made an initial child-custody determination under the UCCJEA 

with respect to A, G, and K when it gave Father sole legal care of the 

girls in the divorce decree. Prior to the termination trial, the 

Department filed a motion asking the trial court to confer with the New 

Mexico district court about jurisdiction. At the April 5, 2021 trial, before 

testimony commenced, counsel for the Department raised its request to 

confer orally, and the court responded that it would do so after taking 

testimony.

The record contains this April 27, 2021 email from the New 

Mexico court declining jurisdiction:

Judge Graham,

As per our conversation, New Mexico will decline to 

exercise jurisdiction over this case since the children have 

resided in Texas for more than the last 6 months, and 

Texas is a more convenient forum.

Regards,

Dave Reeb

The trial court’s termination order was signed a week later. It recites 

findings that the New Mexico court declined to exercise continuing 

jurisdiction under the UCCJEA and that the courts of Texas have 

jurisdiction under the Act to modify the child-custody determination 

with respect to A, G, and K.

Mother acknowledges that the statutory criteria in Section 203 

for modifying a child-custody determination made in another state were 

satisfied before the trial court signed the termination order. But she 

argues that the order is void because the entire trial was held before the 

court received notice that the New Mexico court would decline
8

jurisdiction. She points us to no section of the UCCJEA, nor any caselaw, 

prohibiting the commencement of trial before the interstate conference 

occurs or the initial court’s declination of jurisdiction is made part of the 

record. 

In fact, the text of Section 203 cuts against Mother’s argument. It 

says that “a court of this state may not modify a child custody 

determination made by a court of another state unless” the statutory 

criteria are met.12 The modification occurs in the order, not in the taking 

of testimony. We reject Mother’s challenge to the trial court’s 

jurisdiction.13

III

Mother’s primary argument is that her rights cannot be 

terminated under Section 161.001(b)(1)(O) for failure to comply with her 

service plan because she “was the non-offending parent”. In Mother’s 

view, the children were not removed from her care or due to her abuse 

or neglect, but from Father’s care due to his abuse. The statute provides:

(b) The court may order termination of the parent-child 

relationship if the court finds by clear and convincing 

12 TEX. FAM. CODE § 152.203 (emphasis added).

13 DFPS characterizes Mother’s complaint as procedural, rather than 

jurisdictional, and argues that Mother waived it by failing to object at trial. 

The Department points to caselaw holding that provisions in the UCCJEA 

relating to communications between the initial court and the modifying court 

are procedural and need only be substantially complied with. See In re J.P., 

598 S.W.3d 789, 799 (Tex. App.—Fort Worth 2020, pet. denied) 

(“Section 152.110 is a procedural rather than a jurisdictional statute.” (citing 

Texas and California cases)); id. at 800-801 (“[A]lthough we reiterate that it is 

not jurisdictional, we conclude that the trial court substantially complied with 

Section 152.110.”). Because we reject Mother’s complaint on its merits, we need 

not decide if it is really a procedural one that she was required to preserve.
9

evidence:

(1) that the parent has:

. . . .

(O) 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 who has been in the permanent or 

temporary managing conservatorship of the 

Department of Family and Protective Services 

for not less than nine months as a result of the 

child’s removal from the parent under Chapter 

262 for the abuse or neglect of the child[.]14

A

Mother relies on the statute’s reference to “the child’s removal 

from the parent . . . for . . . abuse or neglect”, which she reads as limiting 

(O)’s reach to a parent whose wrongdoing caused a child to be physically 

taken from that parent. We disagree. Mother’s argument turns on the 

meaning of two terms in (O): removal and abuse or neglect. When these 

terms are viewed in the context of the statute as a whole15 and against 

the backdrop of our analysis in In re E.C.R., the record contains 

sufficient evidence that A, G, and K were indeed “remov[ed] from 

[Mother] under Chapter 262 for . . . abuse or neglect”.

14 TEX. FAM. CODE § 161.001(b)(1)(O) (emphasis added).

15 See, e.g., Miles v. Tex. Cent. R.R. & Infrastructure, Inc., 647 S.W.3d 

613, 619 (Tex. 2022) (“In interpreting statutes, we must look to the plain 

language, construing the text in light of the statute as a whole. . . . The 

statutory words must be determined considering the context in which they are 

used, not in isolation.” (quoting Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 

59 (Tex. 2019))).
10

1

Neither party points to a definition of removal in the Family Code, 

but Mother assumes that the term is limited to the Department’s taking 

physical possession of a child from a specific person or place. But 

Paragraph (O) tells us that removal happens “under Chapter 262”, and 

in Chapter 262, the concept of removal is far broader. Removal is 

effectuated by a temporary court order that transfers not just the right 

to physical possession from a parent to DFPS but an entire bundle of 

conservatorship rights from one or both parents to DFPS. 

Subchapter B of Chapter 262 is titled “Taking Possession of 

Child”.16 As a general rule, before DFPS can “take possession of a child”, 

the Department must do two things: (1) file a suit affecting the parent–

child relationship that is supported by an affidavit;17 and (2) obtain an 

emergency order.18 Ordinarily, the order is signed without a hearing, 

based on the allegations in DFPS’ petition and affidavit.19 But the order 

is only temporary, expiring 14 days after its signing.20 Then a full 

adversary hearing is held.21

16 TEX. FAM. CODE §§ 262.101-262.116.

17 Id. § 262.101. In emergency circumstances, DFPS can take possession 

of the child before obtaining the court order, id. § 262.104, but the Department 

must then file its conservatorship petition “without unnecessary delay,” id. 

§ 262.105(a), and the court must hold a hearing “on or before the first business 

day after the date the child is taken into possession.” Id. § 262.106(a).

18 Id. § 262.102.

19 See id. § 262.102(a). But see id. § 262.106 (requiring a hearing after a 

child is taken into possession without a court order under Section 262.104).

20 Id. § 262.103.

21 Id. § 262.201(a).
11

The emergency order does not just address physical possession. 

Chapter 262 equates it to “a temporary order for the conservatorship of 

a child under Section 105.001(a)(1)”,22 which is the provision authorizing 

temporary conservatorship orders in other settings, such as divorce. 

Section 151.001 of the Family Code lists legal rights and duties that a

parent has by default:

(1) the right to have physical possession, to direct the 

moral and religious training, and to designate the 

residence of the child;

(2) the duty of care, control, protection, and reasonable 

discipline of the child;

(3) the duty to support the child, including providing the 

child with clothing, food, shelter, medical and dental 

care, and education;

(4) the duty . . . to manage the estate of the child . . . ;

(5) [with exceptions], the right to the services and 

earnings of the child;

(6) the right to consent to the child’s marriage, 

enlistment in the armed forces of the United States, 

medical and dental care, and psychiatric, 

psychological, and surgical treatment;

(7) the right to represent the child in legal action and to 

make other decisions of substantial legal 

significance concerning the child;

(8) the right to receive and give receipt for payments for 

the support of the child and to hold or disburse funds 

for the benefit of the child;

(9) the right to inherit from and through the child;

(10) the right to make decisions concerning the child’s 

education; and

22 Id. § 262.102(a).
12

(11) any other right or duty existing between a parent 

and child by virtue of law.23

Section 153.371 lists rights and duties that, “[u]nless limited by 

court order”, attach to DFPS when it is appointed as the managing 

conservator of a child.24 The list in Section 153.371 is almost verbatim 

of that in Section 151.001.25 In an emergency order issued under 

Chapter 262, the court appoints DFPS as the temporary sole managing 

conservator of the child at issue and addresses what rights of 

conservatorship are transferred from the parent to DFPS as a result of 

that appointment. Therefore, the removal of a child under Chapter 262 

is not just a physical act. It also includes the transfer by court order of 

the bundle of rights that the law gives a parent by default from the 

parent to DFPS.

2

Our decision in In re E.C.R. adds to our analysis. In that case, 

mother’s rights to infant ECR were terminated after she abused an older 

child. The question before us was whether the reference to “abuse or 

neglect” in (O) requires a showing of actual, past-tense abuse or neglect 

or whether the reference can encompass circumstances that would 

“plac[e] the child’s physical health or safety at substantial risk”.26 We 

held that abuse or neglect is “used broadly” in (O) and “necessarily 

23 Id. § 151.001(a).

24 Id. § 153.371(1)-(12).

25 A parent does not lose “the right to inherit from and through the

child” when DFPS is appointed as the child’s managing conservator. Compare

id. § 151.001(a)(9), with id. § 153.371. There may be other minor differences.

26 E.C.R., 402 S.W.3d at 240.
13

includes the risks or threats of the environment in which the child is 

placed.”27 Two parts of our analysis are important to this case.

The first is that we linked the phrase abuse or neglect in (O) with 

“[t]he standard used repeatedly throughout chapter 262”, which is 

“danger to the physical health or safety of the child.”28 The petition and 

affidavit that DFPS file before removal must “stat[e] facts sufficient to 

satisfy a person of ordinary prudence and caution that[] . . . there is an 

immediate danger to the physical health or safety of the child”.29 The 

trial court must make the same finding in an emergency order 

authorizing removal.30 After the full adversary hearing held a few weeks 

later, “the court shall order the return of the child to the 

parent . . . unless the court finds . . . [that] there was a danger to the 

physical health or safety of the child, . . . which was caused by an act or 

failure to act of the person entitled to possession”31 and that the danger 

continues.32 In E.C.R., we explained that the “danger” standard in 

Chapter 262 is “centered on risk, rather than just a history of actual 

abuse or neglect”.33

The second salient point from E.C.R. is how we determined that 

the predicate to (O)’s application had been met in that case: We looked 

27 Id. at 248. 

28 Id. at 247.

29 TEX. FAM. CODE § 262.101(1).

30 Id. § 262.102(a)(1).

31 Id. § 262.201(g)(1).

32 Id. § 262.201(g)(3).

33 E.C.R., 402 S.W.3d at 247.
14

to the record. We noted that the Department had followed the 

procedures in Chapter 262 by filing a conservatorship petition and 

removal affidavit that recounted mother’s physical abuse of ECR’s 

sister, for which she was arrested and charged; mother’s prior 

involvement with authorities for abusing an older son; mother’s history 

of leaving ECR with her boyfriend, a known criminal who is not ECR’s 

father; and mother’s incarceration.34 Though we acknowledged that the 

affidavit was “not evidence for all purposes”, we said that it “show[ed] 

what the trial court relied on in determining whether removal was 

justified.”35

After the petition and affidavit were filed, the court issued an 

emergency temporary order that “found sufficient evidence . . . that 

E.C.R. faced an immediate danger to his physical health or safety, that 

the urgent need to protect him required his immediate removal, and that 

he faced a substantial risk of a continuing danger if he were returned 

home”.36 Finally, we pointed out that mother had not challenged those 

findings, and we cited authority that temporary orders in suits affecting 

the parent–child relationship are reviewable by mandamus.37 We held 

that this record “conclusively establishe[d] that E.C.R. was removed 

from [mother] under Chapter 262 of the Family Code for abuse or 

neglect”.38

34 Id. at 248.

35 Id.

36 Id.

37 Id. at 248 & n.8.

38 Id. at 249.
15

3

Here, too, the record contains sufficient evidence that the factual 

predicate to the application of (O) has been met. After DFPS filed its 

conservatorship petition and affidavit, the trial court signed a 

temporary emergency order under Chapter 262. This removal order 

expressly affects Mother’s rights. It identifies her by name as a “parent” 

and a “Respondent”. It orders her to take certain actions and notifies her 

of certain actions the court may take against her at the adversary 

hearing, including requiring her to comply with the Department’s 

service plan. It specifically grants the Department “the right of physical 

possession” based on express findings that the Department made 

reasonable efforts to avoid “removal of the children . . . from the home” 

and to make it possible for the children “to return home”, but that 

“continuation in the home of [Mother] or [Father] would be contrary to 

the children’s welfare”.

Consistent with the removal order, the temporary order following 

the adversary hearing also identified Mother by name and found 

sufficient evidence that it was contrary to the welfare of the children to 

remain in the home of either Mother or Father; that reasonable efforts

were made to prevent the children’s removal and to enable them to 

return to the home of Mother or Father; and that a substantial risk of 

continuing danger existed if the children were returned to the home of 

Mother or Father. The order also directed Mother to comply with the 

Department’s service plan. 

By their clear language, these orders confirm that the removal 

order legally removed the children from both Mother and Father, 
16

regardless of who had legal or physical possession of the children at the 

time.

The Department’s affidavit shows what the trial court relied on 

to find that continuation in the home of Mother would be contrary to the 

children’s welfare. The affidavit recounts investigator Francis’ efforts in 

October 2019 to find Mother through “an [A]ccurint search”39 and 

Father’s statement to Francis around the same time that he believed 

Mother to be incarcerated. Later, it contains this paragraph about 

Francis’ communications with Mother in February 2020:

On February 18, 2020 I was able to make contact with 

[Mother]. The girls were in her custody and care for a long 

time. She had a daughter pass away, and she lost her mind 

about it. She signed the girls over to him during the divorce 

due to her issues after her daughter passed away. She 

moved here 5 to 6 months ago to be near the girls. She and 

[Father] cannot get along, they had a rough marriage with 

domestic violence involved. She has in the past had 

concerns regarding his aggression. She does have concerns 

with [Father] regarding drug and alcohol use. His anger is 

a lot worse when he is using. She has been there in Clovis, 

going through a divorce with her now ex. She went to 

[Messila Valley] for a bit, to get her mind right and back on 

her meds. She has a job interview on the 20th. She is 

staying at the Hartley house, which is a domestic violence 

shelter there. She does intend to go back to court and fight 

for custody for the girls. . . . 

Though not a model of clarity or thoroughness, the affidavit 

reflects that Mother voluntarily relinquished custody of the children to 

Father despite a history of domestic violence and concerns over his 

39 LexisNexis Accurint “is a direct connection to public records to help 

verify identities, conduct investigations and detect fraud.” ACCURINT,

https://www.accurint.com (last visited May 25, 2023). 
17

aggression and substance abuse and that she lacked stable housing or 

employment. The trial court could have believed that the affidavit 

demonstrated “an immediate danger” to the children if they were placed 

in Mother’s care.

Mother was represented by counsel at the full adversary hearing, 

held a few weeks after the temporary emergency order was signed. The 

transcript of that hearing is not in the record, but the hearing resulted 

in the trial court’s signing another temporary order that makes the 

required “danger” finding and directs that A, G, and K remain in the 

temporary managing conservatorship of the Department. As in E.C.R., 

there is no indication in the record of this case that Mother’s counsel 

challenged the order by mandamus.40 In fact, there is no indication that 

Mother argued at any stage of the trial court proceedings that the 

factual predicate to (O) had not been met.

Perhaps that is because of the uncontroverted trial testimony that 

DFPS refused to give the children to Mother because she tested positive 

for methamphetamine at the outset of the case. Here is the exchange 

between DFPS and Investigator Francis:

Q. Okay. After removal of the children, did you make 

contact again with [Mother]?

A. Yes, I did.

Q. Okay. And what did you and [Mother] discuss?

A. I explained to her that we had removed the children and 

why.

Q. Okay. Did you also ask her to drug screen?

40 See E.C.R., 402 S.W.3d at 248 & n.8.
18

A. Yes, ma’am, I did.

Q. Okay. And did that drug screen come out positive?

A. Yes, ma’am. 

Q. Okay. And was that for methamphetamine?

A. Yes, ma’am.

Q. Okay. So at that point [Mother] was not appropriate for 

the children to reside with. Correct?

A. Correct.

Drug use is included in the list of behaviors constituting abuse 

under Chapter 261.41 And though Mother’s positive test was not 

mentioned in the Department’s removal affidavit, a parent’s 

methamphetamine use surely poses “an immediate danger to the 

physical health or safety of [a] child” within the meaning of Chapter 262. 

Indeed, Mother’s appellate counsel conceded as much at oral argument 

when he said: “But you know, she’s using drugs. She can’t keep a job.

She don’t have a home. She hasn’t done anything to harm these kids yet, 

but in all likelihood, if we put those children back with her, something 

bad is going to happen”.

4

Most, if not all, of the intermediate courts of appeals have rejected 

the argument that Mother makes here.42 Mother cites only a single case, 

41 TEX. FAM. CODE § 261.001(1)(I).

42 See In re S.N., 287 S.W.3d 183, 188 (Tex. App.—Houston [14th Dist.] 

2009, no pet.) (“[W]e conclude that subsection (O) does not require that the 

parent who failed to comply with a court order be the same parent whose abuse 

or neglect of the child warranted the child’s removal. Had the legislature 

intended such a requirement, it could have easily provided that 

conservatorship be ‘as a result of the child’s removal from the parent under 
19

In re J.E.H.,43 but it is inapposite. The child there was removed from 

father’s care after the Department received a tip that father was driving 

while under the influence of marijuana with the child in the car. DFPS 

called father to testify on the opening day of trial, but then the court 

called a recess, and the trial did not resume until two months later. 

When it did, the Department rested without calling the caseworker to 

testify. The only testimony presented at trial was that of father and his 

sister. Not surprisingly, the court of appeals held that the Department 

had failed to carry its burden of proof on (O).44

B

Concerns were raised at oral argument that DFPS may pursue 

termination under (O) rather than the endangerment grounds in (D)45

and (E)46 where (O) is easier to prove. Court-ordered service plans can 

be long and detailed. Some of the requirements are very specific, such 

Chapter 262 for the abuse or neglect of the child by the parent.’”); see also 635 

S.W.3d at 440 (“[T]he Department is not required to show that the parent who 

failed to comply with a court order is the same parent whose abuse or neglect 

of the children warranted the children’s removal.”); In re J.R.H., No. 06-18-

00052-CV, 2018 WL 6625886, at *4 (Tex. App.—Texarkana Dec. 19, 2018, pet. 

denied) (same); In re D.R.J., 395 S.W.3d 316, 320 (Tex. App.—Fort Worth 2013, 

no pet.) (same); In re M.D., No. 10-13-00005-CV, 2013 WL 1558012, at *2 (Tex. 

App.—Waco Apr. 11, 2013, pet. denied) (same); In re M.N., No. 11-10-00129-

CV, 2011 WL 917837, at *3 (Tex. App.—Eastland Mar. 17, 2011, no pet.) 

(same).

43 384 S.W.3d 864 (Tex. App.—San Antonio 2012, no pet.).

44 See id. at 870-871.

45 TEX. FAM. CODE § 161.001(b)(1)(D) (placing the child in endangering 

conditions).

46 Id. § 161.001(b)(1)(E) (engaging in endangering conduct).
20

as a counseling course with a specific counselor that must be completed 

by a specific date. Some of the requirements are vague and subjective, 

such as maintaining “regular contact” with the caseworker. These plans 

can be difficult—perhaps impossible—to comply with fully, especially if 

the parent has limited English proficiency or lacks reliable 

transportation, reliable internet access, or the ability to take time off 

work. At trial, DFPS typically demonstrates a parent’s failure to comply 

with the service plan through the testimony of the parent’s caseworker. 

In some cases, that could be a more straightforward path to a 

termination judgment for DFPS than putting on witnesses to make a 

case of endangerment would be. The more straightforward path is not 

always the right one, and our judicial antennae are raised and attuned 

to potential misuses of (O).

But we are satisfied that is not what happened here.47 To the 

contrary, this is exactly the kind of case that (O) is for. DFPS cannot 

leave a child with a parent whose conduct or home environment would 

endanger the child; several policy statements in the Family Code make 

that clear.48 DFPS had to pursue removal of A, G, and K from Mother 

47 The dissent proposes the hypothetical possibility of DFPS initiating 

termination proceedings against a mother who returns home from deployment 

to discover abuse of the children by the father. See post at 17-18 (Young, J., 

dissenting). Notably, the mother in the hypothetical does not have a long 

history of methamphetamine use and instability, and she did not test positive 

for methamphetamine at the outset of proceedings.

48 See TEX. FAM. CODE § 262.001(b) (“In determining the reasonable 

efforts that are required to be made with respect to preventing or eliminating 

the need to remove a child from the child’s home or to make it possible to return 

a child to the child’s home, the child’s health and safety is the paramount 

concern.”); see also id. § 153.001(a) (“The public policy of this state is to: 
21

once it determined that Mother could not provide a stable home 

environment for them. In a case like this one where the other parent’s 

conduct directly caused DFPS’ involvement, none of the other 

Section 161.001(b)(1) grounds may provide a pathway to either 

reunification or termination. That is the work that (O) does. It gives a 

parent like Mother an opportunity to have the child returned to her by 

demonstrating her parenting ability through compliance with the 

service plan. But at the same time, if the parent in Mother’s position 

cannot demonstrate her ability to provide a stable home for the child, 

then her rights to the child can be terminated, thereby clearing the path 

for the child’s adoption.49

C

The dissent seems to agree that removal of a child from a parent 

under Chapter 262 is a legal change and not merely a physical one, 

though it repeats that DFPS took possession of the children at Father’s 

home, suggesting that the relocation was more important than it is. But 

the dissent asks: “[W]hat right was removed from Mother and 

transferred to the State?”50 As shown by the trial court’s orders set out 

above, the children were transferred to DFPS as their conservator, 

(1) assure that children will have frequent and continuing contact with parents 

who have shown the ability to act in the best interest of the child; [and] 

(2) provide a safe, stable, and nonviolent environment for the child . . . .”).

49 See id. § 153.371(11) (providing that DFPS can consent to the 

adoption of a child for whom it has been appointed managing conservator “if 

the parent-child relationship has been terminated with respect to the 

parents”).

50 Post at 10 (Young, J., dissenting).
22

temporarily ending both Mother’s and Father’s exercise of control of 

them without DFPS approval. The dissent seems to believe that the New 

Mexico divorce decree terminated all Mother’s legal rights in her 

children, when it did not and could not do so. Mother’s parental rights

to her children were not at issue in her divorce as they are here. The 

divorce decree, based solely on Father’s and Mother’s stipulation, made 

Father the children’s custodian, but it left Mother with the right to 

visitation as agreed by Father. The dissent argues that it was the extent 

of the divorce decree that left Mother with nothing for DFPS to remove. 

“[T]hings might be different”, the dissent argues, if Mother had retained 

more custodial rights under the divorce decree than she did.51 So if 

Mother had been left with visitation one day a quarter, or a month, or 

maybe a week, instead of with Father’s agreement, then the orders the 

court issued under Chapter 262 would actually have accomplished 

DFPS’ removal of the children from her. Surely such a rule would be 

unworkable. More importantly, there is no legal basis for it.

Paradoxically, the dissent argues that if the termination of 

Mother’s rights were reversed, DFPS could immediately refile removal 

proceedings to protect the children and, with no change in the situation 

other than the termination of Father’s rights, could proceed exactly as 

before to terminate Mother’s rights properly. In other words, if Father 

has parental rights, Mother has no rights to remove, but if Father’s 

rights are terminated, the children can be removed from Mother, though 

possession and the right to custody have not changed. The dissent’s 

51 Id. at 6 (emphasis added).
23

position is illogical, but again, more importantly, the dissent provides no 

legal basis for it. 

The dissent acknowledges that Mother’s drug use renders her 

unfit. Mother acknowledges that herself. With this case having been in 

litigation for three years, the dissent would put both DFPS and Mother 

through another round to obtain what the dissent hopes, barring 

Mother’s redemption, will be the exact same result. All this is necessary, 

the dissent warns, so that a mother returning from military 

deployment—only to find that in her absence, and without her 

knowledge, father has abused and neglected the children by relapsing 

into drugs—will not become “embroiled in a controversy with the 

State.”52 In such a situation, DFPS would gladly have the children put 

with their mother, and if it did not take that action immediately, the 

military-veteran mother would easily complete any service plan that 

might be proposed. The dissent’s trepidation over abuse of innocent 

parents in a case in which both parents are indisputably and by their 

own admission unfit is difficult to understand.

IV

Finally, we address Mother’s challenges to the legal sufficiency of 

the evidence to support the trial court’s findings that Mother failed to 

comply with her service plan53 and that termination is in the best 

interest of A, G, and K.54 We take them in turn.

At oral argument, Mother’s counsel acknowledged that “there’s no 

52 Id. at 18.

53 TEX. FAM. CODE § 161.001(b)(1)(O).

54 Id. § 161.001(b)(2).
24

question that she did fail to work the services. She did fail to remain 

drug free.” Indeed, Mother’s caseworker, ShaiAnne McAdoo, testified at 

trial that Mother:

• “hadn’t been compliant with updating the Department on her 

changes of residence”;

• was not able to maintain stable housing;

• “tested positive [for drugs] on her screenings” and did not get 

screened on some occasions, as requested;

• did not initiate individual counseling as required;

• did not complete a psychological evaluation;

• did not complete rational behavior therapy;

• did not complete parenting classes; and

• missed or failed to fully complete several drug screens.

With respect to a missed screening in December 2020, Mother 

admitted at trial that she was using methamphetamine at that time. 

When asked why by the Department’s counsel, Mother responded, 

“[b]ecause it was the holidays and I wasn’t around my girls.” Mother also 

admitted to using methamphetamine in June and July of 2020, after the 

court ordered the service plan. When asked whether she “believe[s] it’s 

necessary to be completely sober to be a good parent”, Mother responded: 

“[N]o, I don’t think that’s a true statement.”

In her brief, Mother relies on Section 161.001(d), which provides 

that a court may not order termination under (O) if the parent proves by 

a preponderance of the evidence that:

(1) the parent was unable to comply with specific 

provisions of the court order; and 

(2) the parent made a good faith effort to comply with 

the order and the failure to comply with the order is 
25

not attributable to any fault of the parent.55

Mother points to snippets of her testimony in which she characterized 

her compliance with various parts of the service plan differently than 

the caseworker did. She then asserts that “a combination of poverty, lack 

of transportation, and miscommunication all combined to result in [her] 

failure to comply fully with her service plan.”

After summarizing the evidence, the court of appeals concluded 

that “the trial court could have, under the requisite standard, found the 

evidence sufficient to support termination of [Mother’s] parental rights 

under section 161.001(b)(1)(O).”56 We agree with the court of appeals.

Mother also challenges the legal sufficiency of the evidence to 

support the trial court’s best-interest finding. Rather than marshal the 

evidence to the Holley factors,57 Mother reurges her arguments that she 

“was the non-offending parent” and made a good-faith effort to comply 

with her service plan. She also argues that the children could be placed 

with her stepmother, Marilyn, with whom A, G, and K lived for seven 

years before going to live with Father. Marilyn testified at trial that she 

55 Id. § 161.001(d).

56 635 S.W.3d at 442.

57 In Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), we gave a 

nonexhaustive list of factors that should be considered when determining the 

best interest of a child. The factors we listed are: (1) the desires of the child; 

(2) the emotional and physical needs of the child now and in the future; (3) the 

emotional and physical danger to the child now and in the future; (4) the 

parental abilities of the individuals seeking custody; (5) the programs available 

to assist these individuals; (6) their plans for the child; (7) the stability of the 

home or proposed placement; (8) the acts or omissions of the parent that may 

indicate that the existing parent–child relationship is not a proper one; and 

(9) any excuse for the acts or omissions of the parent. Id. at 372.
26

is willing to be a long-term placement for the children if need be.

The court of appeals acknowledged that Marilyn’s testimony 

provides “some evidence in support of preserving [Mother’s] parental 

rights to her children”,58 but it concluded that the ample evidence of 

Mother’s drug use throughout the children’s lives, her continued drug 

use during the case, and her history of instability provided sufficient 

evidence to support the trial court’s best-interest finding.59 Again, we 

agree with the court of appeals.

* * * * * 

We hold that (1) the trial court did not lack jurisdiction over this 

case under the UCCJEA; (2) the record contains sufficient evidence that 

the children were “remov[ed] from [Mother] under Chapter 262 for 

abuse or neglect”; (3) there is legally sufficient evidence to support the 

trial court’s finding that Mother failed to comply with her service plan; 

and (4) there is legally sufficient evidence to support the trial court’s 

finding that termination is in the best interest of the children. We affirm 

the judgment of the court of appeals.

 

 Nathan L. Hecht

 Chief Justice

OPINION DELIVERED: June 9, 2023

58 635 S.W.3d at 443.

59 See id. at 443-444.