Supreme Court of Texas

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No. 21-0658

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In the Interest of A.L.R., a Child

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On Petition for Review from the

Court of Appeals for the Eleventh District of Texas

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PER CURIAM

Texas Family Code Section 161.001(b) enumerates the grounds 

for terminating a parent’s rights, which must be coupled with a finding 

that termination of those rights is in the child’s best interest. TEX. FAM.

CODE § 161.001(b)(1)(A)-(U), (b)(2). This case involves Subsection (O). 

Under Subsection (O), a court may terminate a parent’s rights based on

that parent’s failure to comply with 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 . . . .

Id. § 161.001(b)(1)(O). To terminate a parent’s rights under 

Subsection (O), the court’s order describing the actions necessary to 

obtain the return of the child must be “sufficiently specific to warrant 

termination of parental rights for failure to comply with it.” In re N.G., 

577 S.W.3d 230, 238 (Tex. 2019). 
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In this case, the trial court found that the father: (1) failed to 

comply with a court-ordered family service plan; and (2) knowingly 

engaged in criminal conduct, resulting in his incarceration and inability 

to care for his child for a period of at least two years (Subsection (Q)). 

See TEX. FAM. CODE § 161.001(b)(1)(O), (Q). The court of appeals 

affirmed the Subsection (O) finding. ___ S.W.3d ___, 2021 WL 2584470,

at *3-*4 (Tex. App.—Eastland June 24, 2021). The court of appeals did 

not reach whether the evidence supports termination under Subsection 

(Q). Id. 

The father petitioned for review, contending that the trial court’s 

order does not support termination under Subsection (O) because the 

order adopts tasks to complete phrased in the form of “requests.” We 

agree. Accordingly, without hearing oral argument, TEX. R. APP. P. 59.1,

we reverse the court of appeals’ judgment and remand the case to that 

court to consider the trial court’s alternative basis for termination under 

Subsection (Q).

I

In August 2017, hospital medical providers notified the 

Department of Family and Protective Services that the parents of a 

newborn child could not properly care for the child, even with nursing 

assistance. 

In an affidavit seeking the child’s removal, a Department 

investigator recounted interviews with several medical providers and 

the parents and the investigator’s visit to the father’s motel room. The 

parents had been homeless for a significant portion of the pregnancy. 
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The motel room they currently lived in was “filthy,” and the parents had 

no diapers or formula.

When asked about prior hospital visits—during which hospital 

staff noticed bruises to her face—the child’s mother reported that the 

father had hit her. The father explained that someone had “spiked his 

beer with ‘crystal meth,’” causing him to black out and assault the 

mother. The investigator also noted that the father had been convicted 

as a minor for sexual assault on a family member. Both parents 

reported mental health diagnoses and prescriptions for attendant 

medications.

The child’s pediatrician observed the parents and expressed 

concern that they were not capable of caring for the child. The doctor 

noted that the mother was nonverbal and worried that she would not 

recognize the need to feed and change the infant. The father’s mother

also expressed concern about the child going home with the parents, and 

she anticipated that “something could happen” if her son became angry. 

The trial court granted the Department’s request to remove the 

child on an emergency basis. After a hearing, the trial court named the 

Department as the child’s temporary sole managing conservator, with 

the mother and father as possessory conservators. The mother 

eventually voluntarily terminated her parental rights.

In October, the trial court ordered the father “to comply with each 

requirement set out in the Department’s original, or any amended, 

service plan during the pendency of this suit,” thereby incorporating the 

service plan by reference. The Department’s plan warns that, unless the 

parents could provide the child with “a safe environment,” their parental 
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rights may be terminated. The plan sets forth “Service Plan Goals” 

stating that, among other things, the “[father] will comply with court 

orders” and “will demonstrate an ability to provide basic necessities such 

as food, clothing, shelter, medical care, and supervision for the child.” 

But the plan’s specific “tasks” are worded as requests, each beginning 

with “[t]he Department requests.” These requests state, for example, 

that “[t]he Department requests” that the father “refrain from 

involvement in criminal activity” and “requests” that the father 

“participate in parenting classes.” The father executed a written 

acknowledgement that his “progress on this plan will be evaluated” 

based on whether he “completed” tasks in the plan and “achieved” the 

plan’s goals.

The trial court in this case held a bench trial in November 2020.

By that time, the father was incarcerated, having pleaded guilty to 

felony family violence assault for an incident that occurred in May 2019; 

the trial court in that case assessed his punishment at five years in 

prison.

The trial court terminated the father’s rights, finding that he had 

failed to comply with the court-ordered plan and had engaged in 

criminal conduct resulting in his inability to care for his child for more 

than two years from the date of the filing of the petition. The court 

further found by clear and convincing evidence that termination of the 

parent–child relationship was in the child’s best interest.

The father appealed, and the court of appeals affirmed. 

___ S.W.3d ___, 2021 WL 2584470, at *4. With respect to Subsection 

(O), the court concluded that the child’s father had understood the
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service plan, and that “he had been advised that his parental rights 

could be terminated if he was not willing or able to provide [the child] 

with a safe environment, even with the assistance of the service plan.” 

Id. at *3. The court of appeals observed that:

[a]lthough some of the language used in the service plan 

could have been more authoritative and phrased as a 

command rather than a request, it was clear from the 

combined terms of the court order and the service plan that 

[the father] was required to complete the tasks and services 

set forth in the service plan. 

Id. Because only one statutory ground is necessary to support a 

termination of parental rights, the court of appeals did not reach 

whether sufficient evidence supports the trial court’s alternative ground 

for termination under Subsection (Q). Id. at *4.

In this Court, the father contends that his service plan was not 

sufficiently specific to support termination of his parental rights under 

Subsection (O). The Department responds that the trial court’s 

temporary order states that “each of the actions required . . . are 

necessary to obtain the return of the child, and failure to fully comply 

with these orders may result in the restriction or termination of parental 

rights.” It further observes that “Compliance with Service Plan” is a

required action in the trial court’s order.

II

Under Subsection (O), “[t]he court may order termination of the 

parent–child relationship if the court finds by clear and convincing 

evidence: [the parent] 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.” TEX. FAM. CODE § 161.001(b)(1)(O). 
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“The department . . . must write the service plan in a manner that is 

clear and understandable to the parent in order to facilitate the parent’s 

ability to follow the requirements of the service plan.” Id. § 263.102(d). 

Although the Family Code gives the trial court the discretion to modify 

the service plan with “any changes . . . it deems necessary,” and to 

“render additional appropriate orders to . . . require compliance with” 

the service plan, the order must comply with the statute’s specificity 

requirement. Id. § 263.106.

Here, the Department argues that the trial court’s general order 

suffices. Because the general order does not “specifically establish[]” the 

actions that a parent must take, however, violation of the order does not 

fulfill the ground for termination under Subsection (O). Subsection (O) 

contemplates direct, specifically required actions. Id. § 161.001(b)(1)(O). 

Here, those actions are worded as requests, not as positive mandates. 

For example, the plan states: “The Department requests that [the father] 

participate in parenting classes,” not “the father must.” 

A request does not connote a mandatory “requirement.”1 The 

plan’s language instead suggests that completion of the requested tasks 

could be helpful in creating a safe environment for the child, but glosses 

over its mandatory nature. The plan reads:

To the parent: this is a very important document. Its 

purpose is to help you provide your child with a safe 

environment within the reasonable period specified in the 

plan. If you are unwilling or unable to provide your child 

with a safe environment, your parental and custodial

1 Compare Request, MERRIAM-WEBSTER’S ONLINE DICTIONARY (2020) 

(“the act or an instance of asking for something”), with Required, id.

(“stipulated as necessary to be done, made, or provided”). 
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duties and rights may be restricted or terminated or your 

child may not be returned to you. There will be a court 

hearing at which a judge will review this service plan.

[Emphasis added.]

The service plan’s goals, unlike its “tasks,” are worded as 

commands. These goals, however, are not part of the checklist 

establishing specific actions that the parent must complete to obtain the 

return of the child. A parent could interpret the service plan as 

requiring that a parent provide the child with a safe environment, with 

the Department’s requested “tasks” acting as signposts to help achieve 

that goal. The plan does not alert the parent to the mandatory nature 

of specific criteria, as it must to serve as grounds for termination under 

Subsection (O). 

The trial court’s order to comply with the Department’s plan does 

not alter this interpretation. Subsection (O) authorizes termination for 

failure to comply with a family service plan only when that plan requires 

the parent to perform specific actions. Id. Because the Department

requested (rather than required) the completion of various tasks to 

achieve mandatory goals, the plan was ambiguous as to the specific

actions required to obtain the child’s return under Subsection (O). 

The Department, citing cases from the courts of appeals, observes 

that the father attended parenting classes—one of the requested tasks 

listed in his plan—and thus, it argues, the father understood that it was 

a required, not a requested, task. See, e.g., In re D.K.J.J., No. 01-18-

01081-CV, 2019 WL 2455623, at *15 (Tex. App.—Houston [1st Dist.] 

June 13, 2019, pet. denied); In re M.G., No. 07-19-00289-CV, 2020 WL 

611554, at *6-*8 (Tex. App.—Amarillo Feb. 7, 2020, no pet.). In these
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cases, however, the orders required those specific actions—“[mother] 

must remain drug free,” or “[Father] will attend individual counseling.” 

In re D.K.J.J., 2019 WL 2455623, at *15; In re M.G., 2020 WL 611554,

at *7. A parent’s engagement with a service plan shows the parent’s 

understanding of its terms, but engagement with an ambiguous plan 

does not show an understanding that compliance with those terms are 

mandatory to secure the return of the child. 

An ambiguous family service plan does not afford a parent the 

specific notice that Subsection (O) requires, which is that the order 

“specifically establish[] the actions necessary for the parent to obtain the 

return of the child.” TEX. FAM. CODE § 161.001(b)(1)(O). Because the 

plan in this case is ambiguous as to the actions that the father had to 

take to restore his parental rights from their temporary deprivation, we 

hold that the trial court erred in concluding that the Department 

established, by clear and convincing evidence, grounds for termination 

under Subsection (O). Cf. In re J.F.C., 96 S.W.3d 256, 277-78 (Tex. 

2002); In re N.G., 577 S.W.3d at 237-38.
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* * *

Accordingly, without hearing oral argument, TEX. R. APP. P. 59.1,

we reverse the court of appeals’ judgment affirming the trial court’s 

termination of the father’s parental rights on Subsection (O) and 

remand for consideration of the trial court’s termination order on 

Subsection (Q).2

OPINION DELIVERED: June 17, 2022

2 The Department requests that we affirm the court of appeals’ 

judgment based on the trial court’s order terminating the father’s parental

rights on Subsection (Q). Because the father did not brief this issue, we decline 

to address it. See Garcia v. Robinson, 817 S.W.2d 59, 60 (Tex. 1991) (holding 

that court of appeals should not have reached issue because Respondent “did 

not raise it in the trial court or brief it on appeal”). We are confident that the 

court of appeals will promptly dispose of this remaining issue.