## IN THE SUPREME COURT OF TEXAS

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. 20-0378

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### I N THE 

### I NTEREST OF 

### J.F.-G., A 

### C HILD

═══════════════════════════════════ ═══════════════ O N P ETITION FOR REVIEW FROM THE C OURT OF A PPEALS FOR THE T ENTH D ISTRICT OF T EXAS

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J USTICE B LACKLOCK , joined by J USTICE G UZMAN , J USTICE D EVINE , and J USTICE B USBY , dissenting.
The termination of parental ri ghts “is one of the most intr usive actions available to the
State.” N.S.M. v. Dall. Cnty. Child Welfare Unit , 747 S.W.2d 814, 815 (Tex. App.—Dallas 1987, no writ). Because of the constitutional concerns implicated by the State’s decision to sever the natural bond between parent and ch ild, termination proceedings must be “strictly scrutinized,” and involuntary termination statutes should be “str ictly construed in favor of the parent.” Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985). Involuntary termination of a pare nt-child relationship requires two discrete findings, both by “clear and convincin g evidence.” T EX

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. C ODE § 161.001(b). First, the parent must have committed one of the predicate acts described in subsections 161.001(b)(1)(A)–(U). Second, the termination must be “in the best interest of the child.” Id . § 161.001(b)(2). The predicate finding precedes the best-interest analysis, and the two ar e distinct inquiries. By requiring the predicate finding, the legislature ha s denied courts the authority to terminate a pa rent-child relationship2 based solely on what judges or juri es think is best for the child. See Tex. Dep’t of Hum. Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987). The statutory predicates are important substantive protections for parents because th ey limit the pool of termination-el igible parents and thereby limit a court’s authority to te rminate parental rights based on gene ralized concerns a bout the parent’s fitness or the child’s well-being. The trial court heard abundant evidence that the reckless behavior of Mother and her boyfriend endangered “Julie.” At issue in this appeal, however, is whether Father—who was in prison when the endangering conduct occurr ed—himself engaged in “conduct . . . which endanger[ed]” his daughter’s “physic al or emotional well-being” w ithin the meaning of subsection 161.001(b)(1)(E). This Court has long held that “mere imprisonment w ill not, standing alone, constitute engaging in co nduct which endangers the emotional or physical well-bei ng of a child.” Boyd , 727 S.W.2d at 533. After that holding, the legi slature reinforced th e point by identifying certain categories of imprisonment that would render a parent eligible for termination of rights.
See T EX

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. C ODE § 161.001(b)(1)(Q). The legislature also identified certain crimes that make parents automatically termination-eligible. See id . § 161.001(b)(1)(L). By identifying particular crimes and particular terms of imprisonment that make parents termination-eligible, the legislature ratified this Court’s holding in Boyd that not all crimes and not all imprisonments make parents termination-eligible, whether under subsecti on (E)’s endangerment prong or otherwise. Father committed a crime and went to prison for it. He has since been released, and the evidence shows he has made su bstantial progress toward turning his life around. For present purposes, the important point is th at neither the crime he committe d nor the time he served makes him eligible for termination of his parental rights. The Court ne vertheless upholds the endangerment finding under subsection (E) based on li ttle more than Father’s past commission of3 crimes (none of which is termination-eligible on its own) and his lack of intimate involvement in his daughter’s life from prison (a nearly impossible standard for im prisoned parents to meet). The legislature’s enumeration of terminati on-eligible crimes and termination-eligible prison terms should inform our understanding of whether a parent’s criminal history or imprisonment history makes the parent termination-eligible. In my view, in order for Father’s criminal history or imprisonment history to amount to endangerme nt under subsection (E), they must be accompanied by facts that make his crim es or his imprisonment uniquely dangerous to his child. No such facts exist here. The Court upholds the endangerment finding based solely on Father’s criminal history, his imp risonment, and the normal disrupt ions in family life caused by imprisonment. If that is enough, then as a pract ical matter, it is no longer true that “mere imprisonment will not, standing alone, constitute engaging in conduct which endangers the emotional or physical we ll-being of a child.” Boyd , 727 S.W.2d at 533.

* * * Father was termination-eligible under subs ection (E) if clear and convincing evidence showed that he “engaged in conduct or knowingl y placed the child with persons who engaged in conduct which endangers the physical or em otional well-being of the child.” T EX

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. C ODE § 161.001(b)(1)(E). In isolation, th e provision can be read broadly, and some may be tempted to view it as a catch-all that essentially requires not hing more than a showing of one instance of bad parenting. But if subsection (E ) is so capacious as to rende r the legislature’s painstaking enumeration of other predicate acts superfluous—and to essentially conflate the predicate and bestinterest inquiries—then one wonders why the legislature bothered w ith such a complex statute. The better understanding of subsection (E) takes into account our obligation to “read [section 161.001] as a whole and . . . give effect to every part.” Jones v. Fowler , 969 S.W.2d 429,4 432 (Tex. 1998). On that score, section 161.001(b)(1 )’s other enumerated grounds shed light on the sort of “endanger[ment]” c ontemplated by subsection (E). Subsection (Q) provides for termination if a parent has “know ingly engaged in criminal condu ct that has resulted in [his] conviction” and “imprisonment and inability to care for the child for not less than two years from the date of filing the [terminati on] petition.” DFPS does not argue that Father’s incarceration meets these criteria. To conclude that hi s imprisonment alone no netheless amounted to endangerment under subsection (E) would ignor e the legislature’s choice that only some imprisonment terms automatically make a parent ter mination-eligible. It is no answer to point out, as the Court does, that Father “committed increasi ngly serious crimes” that resulted in increasing “periods of imprisonment.” Ante at ___. Unless such crimes result in Father’s imprisonment “for not less than two years from the date of filing th e [termination] petition,” his mere absence caused by incarceration cannot, standing alone, amount to “endanger[ment]” under subsection (E), unless (Q) is to be treated as redundant. “[T]here are times when redundancies are pr ecisely what the Legi slature intended.” In re Estate of Nash , 220 S.W.3d 914, 918 (Tex. 2007). But ingeneral, “we should avoid, when possible, treating statutory language as surplusage.” Id. at 917–18. We have been particularly careful not to read gene ral language in a statutory provisio n so broadly as to encompass—and thereby render superfluous—specific items in a list within the same provision. 1 Yet that is essentially what the Court does by allowing the general subsection (E) to swallow up the more specific subsection (Q).

1 See, e.g. , Aleman v. Tex. Med. Bd. , 573 S.W.3d 796, 805 (Tex. 2019); TGS–NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 442 (Tex. 2011); Randol Mill Pharm. v. Miller , 465 S.W.3d 612, 617 (Tex. 2015); R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water , 336 S.W.3d 619, 628–29 (Tex. 2011).5 The Court correctly observes th at section 161.001(b)(1)’s “gr ounds for termination are not mutually exclusive” and that “the same conduct may support mu ltiple grounds.” Ante at ___. But there is a big difference between acknowledgi ng some overlap among section 161.001(b)(1)’s various subsections and interpreting one subsecti on so broadly that it wholly encompasses the territory occupied by another. Reading these statutory provisions together, I would hold that unless a parent’s period of imprisonment satisfies subs ection (Q), imprisonment on its own cannot make a parent termination-elig ible under subsection (E). Similarly, subsection (E) must al so be read in light of the grounds listed in subsections 161.001(b)(1)(L), (T), and (U). These subsections provide for terminati on based on a conviction for enumerated crimes. All agree that Father was not convicted of a crime on any of these lists. The Court nevertheless upholds the endangerment fi nding based on Father’s criminal history, without any explanation of how hi s commission of these particular crimes endangered his child. To hold that his convictions s how a “pattern of escalating conduct” that “endanger[ed]” his daughter under subsection (E) reads away the legisl ature’s careful choice to make only certain convictions—and not others—abasis for termination. Statutory history 2 further highlights the flaws in the ma jority’s reading of subsection (E). In 1987, this Court held that “mere imprisonment will not, standing alone, constitute . . . conduct which endangers the emotional or physical well-being of a child.” Boyd , 727 S.W.2d at 533. The legislature added subsection (Q) in 1997. See Act of May 19, 1997, 75th Leg., R.S., ch. 575 § 9, sec. 161.001, 1997 Tex. Gen. Laws 2012, 2015. Agains t the backdrop of our statement in Boyd ,

2 “[T]his is the history of the legislation, not legislative history . . . . [E]xamining how an enacted statute changes over time . . . . lend[s] helpful interpretive context,” as such changes “b oast the imprimatur of the Legislature as a whole.” Pruski v. Garcia , 594 S.W.3d 322, 329 n.2 (Tex. 2020) (quoting Ojo v. Farmers Grp., Inc. , 356 S.W.3d 421, 445 n.31 (Tex. 2011) (Willett, J., concurring in part)). This Court frequently consu lts statutory history in order to better understand legislative text. See, e.g. , id. at 328–29; Waak v. Rodriguez , 603 S.W.3d 103, 105–09 (Tex. 2020).6 the addition of subsection (Q) is best understood as a legislative decision that in certain cases imprisonment alone would justify termination. We presume, of course, that “the Legislature selected the statute’s language with care, choosing each word for a purpose.” City of Dallas v. TCI W. End, Inc. , 463 S.W.3d 53, 55 (Tex. 2015). To hold that an impriso nment term falling short of that described in subsection (Q) can by itsel f constitute “endanger[me nt]” under subsection (E) would subvert the legislature’s apparent intent in (Q) to specify the duration of in carceration that will automatically support termination. Finally, to the extent there is doubt about subsection (E)’s scope, I would follow this Court’s previous direction by “cons tru[ing] involuntary termination st atutes in favor of the parent” in cases of doubt. In re E.N.C. , 384 S.W.3d 796, 802 (Tex. 2012). This rule of construction is no arbitrary thumb on the scale. Rather, it derive s from Texas law’s longstanding recognition that a parent “has . . . a paramount right to the custody of his infant ch ild,” and that “[t]he breaking of the ties which bind the father and the child can never be justified without the most solid and substantial reasons.” State v. Deaton , 54 S.W. 901, 903 (Tex. 1900) (quoting State ex rel. Herrick v. Richardson , 40 N.H. 272, 275 (1860)). “[E]ven if the interpretation of [s ubsection (E)] adopted by the Court today were equally pers uasive[,] . . . we should prefer th e interpretation” that provides greater protection for the “unalien able rights” of parents, which are among the rights “retained by the people under the Ninth Amendment.” In re H.S. , 550 S.W.3d 151, 177–78 (Tex. 2018) (Blacklock, J ., dissenting).

* * * The Court agrees that imprisonment alone cannot support an endangerment finding, but it upholds the finding here by reason ing that Father’s in carceration for robbery was the culmination of “increasingly serious” convictions “and th eir corresponding periods of imprisonment.” Ante7 at ___. The facts showing endangerment on which th e Court relies are all either the commission of crimes, terms of impri sonment, or the typical disabilities associated with imprisonment. The Court emphasizes Father’s “criminal history—taking into acc ount the nature of the crimes, the duration of incarceration, and whether a pattern of escalating, re peated convictions exists.” Ante at ___. In the Court’s view, because Father “committed increasingly seri ous crimes,” including “possession of a controlled substance, sale of ma rijuana, and robbery,” “[t]he trial court could [have] fairly consider[ed] th ese convictions—and their corr esponding periods of imprisonment— under subsection (E).” Ante at ___. Obviously, a criminal history of escalating seve rity is not a mark of good character. That does not mean such a criminal history, on its own, endangers a child under the meaning of subsection (E). Again, if it did, there would be little reason for the legislature to bother enumerating specific crimes for which conviction alone makes the parent termination-eligible. Unless subsection (E) is to swallo w everything in its path, we mustrequire evidence that Father’s particular crimes or Father’s particular imprisonment posed particular dangers to his child. Such evidence is lacking here. The bulk of the State’s endangerment case focused on the actions of Mother and her boyfriend while Father was incarcerated. As for Father, most of the criminal history the Court says the trial court could “consider” in deciding whether he endangered his daughter happened before his daughter was born . All of Father’s drug-related offenses occurred before Julie’s birth. Unlike most parent al-rights termination cases, there is no evidence Father had a drug problem or part icipated in any drug-related activ ities after his child was born. The Court nevertheless counts his “his tory of drug use” against him. Ante at ___. I fail to understand how drug use before a person become s a parent can possibly be construed as endangering future children the person did not know would exist at the time of the drug use.8 Indeed, the Court acknowledges that the only evid ence about Father’s history with drugs during his daughter’s lifetime cuts the other way: “In the si x months between his release from prison and the final hearing, Julie’s father tested negative for drugs and attended twic e-monthly visitation[s] with the children.” Ante at ___. Father did commit robbery after his daughter was born. Earlier, he also incurred an evading arrest charge after his daughter was conceived, because he “wanted to see [his] daughter born.” There is no other criminal histor y after her birth. The Court seem s to acknowledge that Father’s robbery itself did not endanger hi s daughter, which is why the C ourt must bundle the drug-related offenses together with the robbery before concl uding that the total package of criminal history supports an endangerment finding. Under this line of reasoni ng, robbery committed when the child is young may or may not endang er the child. If robbery is the culmination of an “increasingly serious” criminal history dating to before the ch ild’s birth, there is sufficient evidence of endangerment. But if there is no criminal history before the child’s birth, there is no “increasingly serious” criminal history, and the robbery standing alone may be insufficient evidence of endangerment. One way or anothe r, it seems to be Father’s actions before his daughter was born that are the deciding factor in the Court’s conclusion that Father’s “increasingly serious” criminal history amounts to endangerment. I cannot agree with the Court that pre-parent hood crimes can be evidence of endangerment to as-yet-unconceived children. Again, the Court does not suggest that Father’s robbery itself endangered his daughter. Instead, it is the cumulation of his criminal acts—and particularly the fact that they resulted in his incarceration—which the Court says endangered her. The Court says that incarceration alone is not enough. Yet the Court also says a crime that is not itself endangering becomes endangering when it results in incarceration. If incarcer ation alone is not enough, how can a crime be9 endangering just because it results in incarceration? Cf. In re C.D.E. , 391 S.W.3d 287, 297 (Tex. App.—Fort Worth 2012, no pet.) (“[T]hat Father’s imprisonment exposed the children to an unstable lifestyle” was “insufficient to support” endangerment finding.). To demonstrate how Father’s imprisonment endangered Julie, the Court describes what it calls Father’s “minimal effort to contact Julie or be part of decisions regarding her health, education, or well-being” during his incarceration. Ante at ___. In the Court’s view, Julie’s father’s “omissions . . . exposed Ju lie to physical and emot ional loss, as he did not care for, nurture, or protect her.” Ante at ___. Of course, a dramatically decreas ed ability to “care for, nurture, [and] protect” one’s children is an inevitable cons equence of every impris onment. A parent’s imprisonment will always disrupt family bonds, usually to the detrime nt of children. If we take seriously our prior holdi ng that imprisonment alone is not eno ugh to show endangerment, it cannot be the case that the normal reduction in a fath er’s ability to nurture his children due to his imprisonment amounts to endangerment under subsection (E). 3 On the spectrum of incarcerated fathers, the evidence of this fa ther’s effort to maintain his fatherly role from prison is actually better than might be expected. During his imprisonment, he “communicated with Julie through cards, letters, and th e occasional telephone call.” 612 S.W.3d 373, 388 (Tex. App.—Waco 2020). Once he “receiv[ed] notice of the potential termination,” he “participated in the proceedi ngs as best he could cons idering his incarceration.” Id. at 384. While in prison, he took classes to prepar e for life after his release. Id. at 383. “The classes included cognitive intervention, parenting, an d anger management” as well as “c lasses to help him transition

3 The Court incorrectly states that “[i]n the dissent’s view, a trial court must ignore evidence of criminal conduct and incarceration, however long and damaging the parent’s absence is to a child’s physical or emotional wellbeing.” Ante at ___. To the contrary, my view is that ev idence of criminal conduct and incarceration can be considered, but it is the State’s burden to show that the in carceration or the crimes pose d a particular danger to the child. For instance, a parent who commits a felony while knowing that his incarceration would deprive his child of any responsible caretaker may have endangered his child unde r subsection (E). Here, however, there was no evidence of Mother’s instability or drug use until well after Father’s imprisonment.10 to life outside of prison, includi ng prevention of alcohol and drug a ddiction, lifestyle changes, and managing a successful parole.” Id. Upon his release from prison, “h e engaged in services, was drug-free, and visited with a c ounselor two or three times.” Ante at ___. He had “unimpeachable conduct.” Ante at ___. He “found employment” working two jobs, secured a “residence in Tyler” suitable for him and his family, c ontinued to “test[] negative for drugs,” and he “attended twicemonthly visitation[s] with the children.” Ante at ___; see also 612 S.W.3d at 383. He “paid his parole fees,” “assisted Mother in paying off signi ficant traffic fines,” and “has not violated the terms of his parole.” 612 S.W.3d at 383. At bottom, the flaw in the C ourt’s reasoning is that it “see ks to create one good argument by combining two bad ones.” Austin v. Mich. Chamber of Commerce , 494 U.S. 652, 680 (1990) (Scalia, J., dissenting). Father’s incarceration does not support an endangerment finding. Nor do any of his convictions. Although neither is enough, the Court holds that t ogether they satisfy subsection (E). Of course, incarceration and conv ictions usually go togeth er. If their confluence amounts to endangerment, it rings hollow to continue to say th at “mere imprisonment will not, standing alone, constitute enga ging in conduct which endangers the emotional or physical wellbeing of a child.” Boyd , 727 S.W.2d at 533. 4

4 The court of appeals also found “evidence in the record from which the trial court could conclude that Julie would be placed in a situation that endangered her physical and emotional well-being” if Father had custody of Julie. 612 S.W.3d at 384. The court of appeals faulted Father for his forward-looking intent to have Mother, Julie, and Julie’s siblings “live with him as a family.” Id. The Court correctly avoids this flaw ed line of reasoning. Subsection (E) is explicitly backward-looking. Its placement prong is violated only if the parent “knowingly placed the child with persons who engaged ” in endangering conduct. A parent’s futureplan to place his children with people the court deems dangerous is not a violation of subsection (E). The Court also correctly avoids holding Father accountable for the endangering acts of Mother and her boyfriend. DFPS argues that Father “knowingly placed” Julie with her mother, who later endangered her, and that this is enough to show that Father violated the placement prong of subsection (E). That is wrong. One parent does not “place” his children with their ot her parent when he is absent. See, e.g. , In re E.N.C. , 384 S.W.3d at 806; Walker v. Dep’t of Fam. & Prot. Servs. , 251 S.W.3d 563, 566 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (Walker did not “knowingly place[] the children with pers ons who engaged in conduct which en dangers the physical or emotional well-being of the children” because “Walker was in jail at the time of [mother’s] actions that led to the termination of her parental rights” and because mother “was the children’s mother at the time CPS intervened, therefore establishing she had custody of the children”). Furthermore, Father did not even know of Mother’s actions until DFPS intervened.11 I respectfully dissent. 5

____________________________________ James D. Blacklock Justice

OPINION DELIVERED: May 21, 2021

See 612 S.W.3d at 385 (“There is nothing in the record to indicate that Father was notified of any of the prior [DFPS] investigations into [Mother and boyfriend] or that he otherwise knew of the conditions in which Julie was living until after the children were removed in 2017.”).

5 This is not the only case in which DFPS has found fault with a father for having the noble goal of reuniting his children and their mother to “live with him as a family.” 612 S.W.3d at 384; see also, e.g. , In re J.W. , No. 10-18- 00344-CV, 2019 WL 5078678 (Tex. App.—Waco Oct. 9, 2019, pet. denied). While I acknowledge that some parents are utterly incapable of caring for th eir children no matter the circumstances , I am troubled by the frequency with which the government takes the position in parental-rights cases that parents endanger their children by seeking to hold their troubled families together. To tell a mother that the only way to keep her children is to deny them their father—or to tell a father he must deny his children their mo ther, as was done in this case—is to demand by government coercion the destruction of a family. This is a gravely disquieting use of state power, however troubled the family may be. It is done by threatening the most horrific consequence imaginable for a loving parent—the loss of his children. I would like to think this only happens in Texas when all other conceivable possibilities have been exhausted, but I am not sure.