Supreme Court of Texas

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No. 19-1069

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In the Interest of J.W., a Child

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On Petition for Review from the

Court of Appeals for the Tenth District of Texas

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Argued September 15, 2021

JUSTICE LEHRMANN delivered the opinion of the Court, in which 

Chief Justice Hecht, Justice Bland, Justice Huddle, and Justice Young 

joined.

JUSTICE YOUNG filed a concurring opinion.

JUSTICE BOYD filed a dissenting opinion.

JUSTICE BLACKLOCK filed a dissenting opinion, in which Justice 

Devine and Justice Busby joined.

In this difficult parental-termination case, we examine the legal 

sufficiency of the evidence to support the jury’s finding, by clear and 

convincing evidence, that Father’s parental rights to his child should be 

terminated. After a thorough review of the record, we hold that the jury 

reasonably could have formed a firm belief or conviction that (1) one 

statutory predicate ground for termination was met and (2) termination 

was in the child’s best interest. However, we also hold that another 
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statutory ground was improperly submitted to the jury as part of a 

broad-form termination question. Because we cannot discern whether 

the jury terminated Father’s rights on an invalid ground, and because 

he preserved the charge error, we reverse the court of appeals’ judgment 

as to Father and remand for a new trial. 

I. Background

Mother and Father were married in February 2016. Mother had 

two children, “Jason” and “Doug.” Her parental rights to her younger 

son, Doug, had been terminated in 2011 on the grounds that she 

(1) “knowingly placed or knowingly allowed [him] to remain in 

conditions or surroundings which endanger [his] physical or emotional 

well-being” and (2) “engaged in conduct or knowingly placed [him] with 

persons who engaged in conduct which endangers [his] physical or 

emotional well-being.” TEX. FAM. CODE § 161.001(b)(1)(D), (E). Both 

children live with Jason’s biological father, and Mother visits them 

often.

According to Kelly Allen, a supervisor with the Department of 

Family and Protective Services who participated in the investigation 

involving Doug, the case was opened because of concerns that Mother 

was using drugs and was not meeting Doug’s medical needs. Allen 

testified that Doug, who has a medical condition involving deterioration 

of the muscles in his legs, was almost seven years old at the time of the 

investigation, had never been enrolled in school, could not read or write, 

and had not been provided the walker, wheelchair, therapy, or pain 

medication he needed. She was particularly concerned that Mother had 
3

filled her own prescription “for an opiate” but had not obtained Doug’s 

medication.

Allen also described two incidents in which Mother “absconded” 

with the children. Early in the investigation involving Doug, when 

Mother was informed that the Department would be removing him from 

her care, Mother left the Department’s office with him and disappeared 

for over a week until law enforcement located them. She ultimately 

pleaded guilty to interference with an investigation, a misdemeanor 

offense, and was sentenced to 100 days in county jail. During a different 

Department investigation concerning Jason, law enforcement was called 

to locate him and Mother after she took him from the home of his 

biological father.

Mother learned that she was pregnant with J.W. in July 2016, 

five months after she and Father were married.1 At the time, Mother 

worked for Sanderson Farms, a poultry-processing company, and had 

developed work-related respiratory issues for which she was taking 

Promethazine, a prescription medication that can contain codeine, an 

opiate. According to Father, Mother told him that she was concerned 

she had developed an opiate addiction that needed to be addressed in 

light of the pregnancy. They were referred to a facility in Florida where 

Mother could undergo a detox regimen, with inpatient treatment to 

follow. Mother entered the facility shortly before Thanksgiving and 

1 At one point, Mother named a different man as J.W.’s father on an 

application for government assistance, testifying that she did so because she 

did not want Father to know she was receiving benefits. Father took a 

paternity test confirming that he is J.W.’s biological father. 
4

completed the five-day detox program. However, she refused any 

further treatment and instead returned to Texas. Father testified that 

she left the facility because it had confiscated her Promethazine and 

“wouldn’t let her take” it.

When Mother returned from Florida, Father started working on 

a large project in Houston and was away from Mother for “most 

of . . . January and into February.” Later in her pregnancy, Mother 

began treatment at a methadone clinic associated with a substanceabuse treatment center in Houston. Mother does not drive, and Father 

drove her from College Station to the clinic each day for two or three 

weeks. Mother reportedly planned to enter the affiliated treatment 

center, but she never enrolled and gave birth to J.W. unexpectedly at 

home on April 24, 2017. 

Mother and J.W. were immediately transported by ambulance to 

the hospital, where J.W. was treated for respiratory distress caused by 

aspirating meconium into his lungs. In evaluating the cause of J.W.’s 

respiratory distress, the hospital conducted drug tests on both J.W. and 

Mother; Mother’s urine tested positive for opiates and amphetamines, 

and J.W.’s tested positive for opiates. A sample of J.W.’s meconium 

collected on April 25 tested positive for opiates, amphetamines, 

benzodiazepine, barbiturates, and methadone. Dr. Khaled Hilal, J.W.’s 

treating neonatologist, testified that the benzodiazepine and 

barbiturates could be explained by medications the hospital had 

administered when J.W. was admitted. The source of the amphetamines 

was never identified, but Dr. Hilal agreed that some prescription 

medications can cause a positive test, although the codeine that likely 
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caused the positive opiate test would not have caused the positive result 

for amphetamines. In light of the positive drug tests, the hospital 

referred the case to the Department.

On April 28, J.W. began showing signs of withdrawal; Dr. Hilal

described J.W. as inconsolable, jittery, sweating, hypertonic, not 

sleeping, and experiencing poor weight gain and loose stool. The 

hospital began administering morphine on April 30 to treat his 

symptoms and weaned him off the medication over a ten-day period. 

The hospital also adjusted his formula to counteract his poor weight 

gain.

In the meantime, Department investigator Madison Gresset 

received the referral on April 25 and conducted an initial investigation. 

When the results of the meconium drug screen came back on May 1, a 

hospital social worker told Gresset that one of the substances for which 

J.W. tested positive was methamphetamine, an illegal street drug, but 

the parties agree that this was a mistake and that neither Mother nor 

J.W. has ever tested positive for that drug. When Gresset spoke to 

Father about the test results, he reported that he did not know Mother 

had used any substances and had no knowledge of how they could have 

entered her system. He described Mother as a “free spirit . . . coming 

and going as she pleased” from their home. Gresset attempted to speak 

to Mother about the results the same day but was unable to locate her 

at the hospital. The following day, the Department was informed that 

Mother and Father had an attorney.

On May 17, two days before J.W. was discharged from the 

hospital, the Department filed for emergency removal and sought 
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temporary managing conservatorship of J.W.,2 which the trial court 

granted. The Department had considered placing J.W. with Father 

rather than seeking removal, but Father expressed that he was not sure 

he could act as an independent caregiver for J.W. at that time. Gresset 

was also troubled by Father’s denial of knowledge about Mother’s 

substance use and was concerned that he was missing warning signs 

and justifying her behavior.

The Department considered and ultimately ruled out several 

other possible placements suggested by J.W.’s parents. Father’s two 

brothers and a family friend informed the Department that they 

supported Father but did not want to be considered as placements for 

J.W. The Department ruled out the household of Cecilia and Cecilio 

Salas, the mother and brother of Mother’s former fiancé who had passed 

away, because of concerns about a suspected romantic relationship 

between Mother and Mr. Salas and its effect on the family’s ability to be 

objective about Mother and protective of J.W. Mother and Mr. Salas 

denied such a relationship, though according to a conservatorship 

caseworker with the Department, Father had previously described Mr. 

Salas as being “infatuated” with Mother. Finally, Father proposed that 

he and J.W. could move in with Mother’s sister, Nicole Taylor, and 

requested that the Department conduct a home study. According to 

Gresset, the Department had concerns about Taylor’s protectiveness 

2 Before J.W.’s discharge, the Department had instructed the hospital 

that contact between the parents and J.W. had to be supervised, at least in 

part because of the incident involving Mother’s taking Doug to prevent his 

removal.
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and whether her limited mobility, which was the result of a car accident 

years earlier, would allow her to be an independent caregiver if 

necessary. The Department therefore “wanted to have a very thorough 

look at her home and her home environment” before determining 

whether she was a viable long-term placement option. 

Department supervisor Kelly Allen described the references 

collected during the home study for Taylor as “indicat[ing] that she 

would struggle to care for a child based on her own [medical] needs,” 

leading the Department to question whether she could provide an 

appropriate home for J.W. Allen further testified that Taylor 

subsequently informed the Department she no longer wanted to be 

considered as a placement for J.W. because she was concerned that 

Mother’s presence in her home could jeopardize Taylor’s visitation rights 

with her own children, who were in their father’s custody. Taylor denied 

ever withdrawing from consideration as a placement.

J.W. was discharged from the hospital on May 19, and, after 

failing to find a suitable relative placement, the Department placed him 

with an unrelated foster family with whom he has lived ever since. 

Following an adversary hearing held on May 31–June 1, the trial court 

issued temporary orders naming the Department temporary managing 

conservator, requiring Mother and Father to comply with the 

requirements in the Department’s service plan, and approving visitation 

at a minimum of once per week for a two-hour period. Among other 

things, the service plan required Mother and Father to maintain a safe 

and stable home environment, submit to random drug tests as requested 

by the Department, contact Department caseworkers at least twice a 
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month, attend supervised visits with J.W., complete a psychological 

evaluation and follow recommendations, and attend individual 

counseling. Mother was also required to complete inpatient and 

outpatient drug treatment.

At trial, Department caseworkers testified at length about the 

parents’ actions in relation to the service plan. Mother completed 

parenting classes, but her attendance at individual counseling sessions 

was “very poor.” She completed a psychological evaluation in February 

2018 with Dr. Matthew Ferrara,3 though he testified that the tests he 

administered indicated Mother’s answers were unreliable and that she 

exhibited significant positive response bias, meaning she 

underestimated the scope and intensity of her problems and provided

answers in an effort to appear more “virtuous” than she actually is. 

Mother also missed “quite a few” of the weekly visits with J.W., which 

she attributed to not wanting to get him sick. As for the required drug 

testing, Mother missed twelve of fourteen scheduled drug tests, 

resulting in those missed tests being deemed positive.4 A July 20, 2017 

test was positive for methadone, explained by Mother’s resumption of 

3 Mother initially scheduled a psychological evaluation with Dr. Paul 

Damin, but she testified that she left his office without seeing him because the 

receptionist was rude to her. She then scheduled an evaluation with Dr. Ebony 

Butler, but she left in the middle of the appointment because, according to 

Mother, Dr. Butler got mad at her and acted unprofessionally.

4 Mother attributed some of the missed drug tests to conflicts with 

scheduled visits with J.W. and others to her view that “no matter what I did 

for the Department, it wasn’t going to change anything.”
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treatment at the methadone clinic after J.W.’s birth, and a February 8, 

2018 test was positive for morphine and codeine.5

Mother refused to participate in an inpatient drug-treatment 

program, but she did begin an intensive outpatient program at All About 

Recovery, a facility in Houston, in July 2017. She was unsuccessfully 

discharged from the program in late September due to excessive 

absences. Mother reentered the program in early October, completed all 

the sessions, and was given a “successful but guarded” discharge in 

December 2017 based on an incident involving both Mother and Father 

that occurred after her last session. Specifically, Mother was asked to 

provide an exit urine sample and was required to be observed by a 

facility staff member. While waiting for Mother to prepare herself, a 

staff member observed Father exiting the men’s bathroom with a full 

specimen cup and handing it to Mother, who was exiting the women’s 

bathroom. Mother and Father were told that the facility could not 

accept the specimen in light of the irregularity, and a counselor testified 

that Mother and Father left the facility before they could be told that it 

was still willing to allow Mother to provide a proper sample. Mother 

and Father denied the incident, and Mother testified that she did not 

provide another sample because she was told to leave. 

5 According to Mother, the February drug test was explained by 

medication doctors had given her during an emergency-room visit in December 

2017. Mother said she was unable to provide records of that visit because she 

had used her friend’s name, as she did not have insurance at the time. When 

asked about the incident, Mother testified that “my friend was the one that 

said I was her” and that Mother did not realize what had happened until after 

she was treated.
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As to Father’s service plan, the Department agreed that he 

satisfied several of the requirements. He completed parenting classes 

and individual counseling,6 had a stable retirement income, and 

attended all but two or three of the weekly visits with J.W. The 

Department waived the requirement that he obtain a psychological 

evaluation and did not require him to submit to any additional drug 

testing after his initial negative test. However, the Department’s 

position at trial was that Father failed to comply with the service plan’s 

requirements that he “maintain a safe and stable home environment” 

and “contact [the Department] caseworker at least twice a month.”

With regard to Father’s maintaining contact with the 

Department, Allen testified that his contact was “excellent” during the 

first few months of the proceedings, but at some point after July 2017 

“he would no longer speak to us,” apparently at Mother’s behest. Allen 

stated that Mother would answer Father’s phone, tell him not to talk to 

the Department, and hang up. When they came to the Department’s 

office for weekly visits with J.W., Mother would not look at or speak to 

anyone and would tell Father to “shut up” if he attempted to speak, 

resulting in “very little meaningful contact” with either parent. Father 

attributed the change in attitude to the Department’s making it clear at 

a family group conference in July 2017—which Mother did not attend—

6 In the court of appeals, the Department argued that Father did not 

complete the counseling requirements, but the Department does not make that 

argument in this Court, and we do not consider it.
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that its goal was to terminate his and Mother’s parental rights.7 In any 

event, as noted, Father attended almost all the weekly visits with J.W., 

which took place at the Department’s office.

With respect to maintaining a “safe and stable home 

environment,” the Department discussed the condition of Father’s 

residence, the lack of a concrete plan for independently raising J.W., and 

Father’s ongoing relationship with Mother. Concerns about Father’s 

residence, which Father had owned for approximately forty years, were 

based on two home visits occurring on May 31, 2017, and June 20, 2018. 

Gresset conducted the first visit and described the house as being 

“unsafe for a child.” She testified that she could not physically enter 

some of the rooms because objects “completely overwhelmed all of the 

surfaces.” This included the room in which Mother and Father “had 

started the process of putting the crib together but there were just 

innumerable items piled upon each other, making it very difficult to 

navigate.” Gresset also described a hole in the hallway ceiling that had 

gray and black color around the edge, suggesting water damage. 

Gresset took photographs of the home that bear out her description and 

show rooms overflowing with trash, loose cables, clothes, and other 

miscellaneous household items, including an ashtray filled with 

cigarette butts indicating smoking in the house was a common 

7 Allen testified that the Department’s “primary” goal was unrelated 

adoption; that its “concurrent” goal, which “the Department works 

simultaneously,” was family reunification; and that the goals can switch 

during the proceedings if the parents make progress. She stated that this was 

explained at the family group conference.
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occurrence. Gresset did not observe anything that she would consider a 

“biohazard,” such as fecal matter or insects.

Department caseworker Jennifer Smith visited the residence in 

June 2018, approximately four months before trial. At trial, she was 

shown the photographs from the previous visit, which she described as 

showing the house to be unsafe for a young child, and she stated that 

Father had done nothing to address those issues. She also noted being 

“hit with an overwhelming odor of stale cigarette smoke as well as fresh 

cigarette smoke” when she entered the home and observed an ashtray 

filled with cigarette butts apparently belonging to Mother. Smith 

believed it was “unrealistic” to think J.W. would never be in the home if 

Father regained custody, so she offered to walk through the home with 

him and make suggestions about how to make it safe for a toddler. 

Father declined and did not permit her to take photographs of the house.

Father did not contend at trial that his home was suitable or safe 

for a child. Rather, he testified that he and Mother had never intended 

to raise J.W. in that home and that, even before J.W. was born, they 

intended to live with him and raise him in Taylor’s apartment. He 

stated that this had been the plan throughout the proceedings and that 

the Department had been aware of it since before J.W. was discharged 

from the hospital. Father further testified that he and Mother had filed 

for divorce the week before trial in order to give Mother a fresh start in 

Houston, where she had been living with the Salas family, and to give 

Father a chance to be a father to J.W. He explained that his plan was 

to reside temporarily at Taylor’s apartment with J.W. while he sold his 

house, and then move to the Fort Worth area to be close to his family. 
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He also testified that Mother loves J.W., has “kind of got her life back 

together,” and has been sober for a long time, but that he would not allow 

J.W. to be around her if he believed she was under the influence of 

anything. 

The Department’s witnesses disputed both whether there had 

been a consistent plan to raise J.W. in a safe environment and whether 

Father had demonstrated his ability to put J.W.’s needs above Mother’s. 

Gresset testified that at the beginning of the investigation, her 

understanding was that Mother and Father lived together in the home 

Father owned, and she had no reason to believe they intended to raise 

J.W. anywhere other than that home before the Department got 

involved. Taylor testified that discussions with Mother and Father 

about Taylor’s assisting them with J.W. and being a possible placement 

began a few weeks after J.W. was born, calling into question Father’s 

assertion that they had planned to move in with Taylor all along. And 

as noted, Allen testified that Taylor had withdrawn from consideration 

as a placement earlier in the proceedings, though Taylor disputed that 

assertion and testified that she was still open to letting Father and J.W. 

move in with her.

The Department also discussed ongoing uncertainty about 

Mother’s and Father’s living arrangements over the course of the 

proceedings and whether their planned divorce was “in name only.” 

Wendy Arline, a Department courtesy worker who assisted with setting 

up services for Mother in Houston, testified that scheduling issues had 

arisen because the parents sometimes reported they lived in Houston 

and sometimes reported they lived in College Station. Mother had 
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reportedly been living in Houston with the Salas family for over a year 

at the time of trial but was not listed on their apartment lease and was 

seeing a therapist in College Station. Mother reported to the 

Department in April 2018 that she and Father planned to get a divorce, 

but Father also reported that they continued to spend nights under the 

same roof on a regular basis. On June 15, 2018, Arline made an 

unannounced visit to the apartment where Mother lived with the Salas 

family, and Father answered the door “look[ing] like he had just woke[n] 

up.” Five days later, Smith visited Father’s residence in College Station, 

and he informed her that Mother had been there earlier that day and 

had just left to go back to Houston. He also stated that he was Mother’s 

primary source of transportation.

Allen described additional instability with respect to Father’s 

living situation and plans for J.W. When questioned whether Father 

had continually expressed his intent to live with J.W. at Taylor’s home, 

Allen replied:

It’s actually the opposite of that, and – and it does go 

towards stable home. [Father] has said his home would be 

his primary residence with the child. He’s indicated that 

the home of Nicole Taylor, [Mother’s] sister would [be] the 

primary residence. He has said that he will move into a 

home near his brother’s in the North Texas area.

So in fact he has given us numerous possible 

locations where he and the child will live, but has never 

made any steps to prepare these homes to live there. And 

in fact on Friday when he indicated he would be living 

possibly with Nicole, who is [Mother’s] sister, when we 

asked to see the home he said the room still wasn’t ready.

Allen further noted that Father “had tons of character witnesses who 

would drop anything and do anything for him” but “18 months into the 
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case, his house is in disarray, he doesn’t have a solid plan for where the 

baby is going to go, he doesn’t . . . have a car . . . to put the baby in.” The 

concern about Father’s car was that it remained full of trash, bottles, 

and choking hazards and was so cluttered that, according to Smith, it 

did not appear that “a car seat could even be put in the back seat of the 

car for the child.” The back windshield, which Father explained had 

been hit by a pellet while he was driving on the highway about a month 

before trial, remained “completely broken and crushed in,” with glass 

shards on the inside of the car. 

Smith also discussed a visit with Father at her office on October 5, 

2018, only a few days before trial. Father was “very friendly” as he 

always was, but their conversation left her with “some concerns.” 

Specifically, Father stated that he “feels a very strong calling to help” 

Mother and remains her primary source of transportation even though 

she lives in Houston. They discussed an incident that occurred in March 

2017, approximately one month before J.W.’s birth, in which Father 

allowed a friend of Mother’s who had recently been released from prison 

to stay in their home because, although he “was not crazy about the 

idea,” he “didn’t have the heart to tell her no.” While staying with them, 

Mother’s friend “overdosed on something” and had to be taken to the 

emergency room. Father similarly reported allowing a “friend of a 

friend” of Mother’s, who Father believed had just gotten out of jail, to 

stay in his home over the preceding summer because, again, he “didn’t 

really have the heart to tell her no.”

According to Smith, Father also reported that Mother had told 

him she wanted to have more children with him in the future and that 
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“he told her that they had to wait until after this case was done.” This 

conversation caused Smith to question whether Father genuinely

intended to separate from Mother and whether he could adequately 

protect J.W. given his knowledge of Mother’s history, the circumstances 

surrounding J.W.’s birth, and Mother’s continuing issues. Father 

recalled the conversation with Smith differently, testifying that he and 

Mother intended to finalize the divorce, that he knew a new case could 

be opened against him if he regained custody of J.W. and failed to protect 

him, and that he had no plans to have more children with Mother. 

Mother similarly testified that she wanted Father to have the 

opportunity to raise J.W. and that she could and would “stay away” if he 

told her to.

Father’s discharge summary from his counseling sessions in the 

spring of 2018 also contributed to the Department’s concerns about his 

ability to protect J.W. Father’s counselor testified that in her view, 

Father believed whatever Mother told him, minimized her drug use, and 

made excuses for her behavior. Consistent with that pattern, Smith 

noted that during her visit to his home in June 2018, Father stated that 

he did not believe Mother posed any danger to J.W. and that the 

Department had been called initially only because of Mother’s history 

with her older children. When asked about the fact that J.W. tested 

positive for opiates when he was born, Father reportedly said that it had 

been “a very slight issue,” that “the doctor said it was moderate,” and 

that J.W. had been fine after a three-day hospitalization. Father denied 

this description of the conversation, testifying that he did not 
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characterize the incident as a “slight issue” and reported only what the 

doctor had told him about J.W.’s symptoms being moderate.

In addition to disputing some of the caseworkers’ testimony about 

the course of events after the Department got involved, Father 

presented several witnesses who testified about his character. By those 

accounts, Father has a history of volunteering for charitable causes, 

including the Boys and Girls Club. Friends and family testified that he 

was happy and excited about being a father and that they believe he 

would be a good parent and would be protective of J.W. And Father’s 

brother testified that if Father moved to the Fort Worth area with J.W., 

the family would be supportive and would help them find a place to live.

J.W.’s foster mother testified that in her interactions with Father, 

he had been very kind and genuinely interested in J.W.’s health and 

welfare. She testified that she loves J.W., that she and her husband are 

willing to adopt him, and that she wants what is best for him. She also 

said that regardless of the result, she believes it is important for J.W. to 

have the opportunity to know Mother and Father if he wishes. Father 

similarly testified that if J.W. were returned to him and the foster 

parents “wanted to see [him] some time, . . . that would be fine.”

Summarizing her opinion that termination of Father’s parental 

rights would be in J.W.’s best interest, Smith explained:

I believe that in terminating [Father’s] parental rights, 

[J.W.] would be able to be in an environment that is safe 

and appropriate where he is protected; where his needs are 

not only met but placed first; where his social and 

emotional needs are met; where he’s kept safe from drug 

use, criminal involvement, even elements in his 

environment that can be dangerous to him. I believe that 
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it is in his best interest to be in an environment that will 

keep him safe.

The Court Appointed Special Advocate (CASA) assigned to J.W.’s case 

also testified that she believed termination was in J.W.’s best interest. 

She explained that she did not “say that lightly” because “they’re loving 

parents, but they’re not capable of taking care of this child adequately 

in my opinion.”

At the conclusion of the five-day trial, the jury was asked two 

broad-form questions: whether the parent–child relationship between 

Mother and J.W. should be terminated and whether the parent–child 

relationship between Father and J.W. should be terminated. The jury 

was instructed that to terminate the relationship as to Father, it had to 

find by clear and convincing evidence that termination was in J.W.’s best 

interest and that “at least one of the following events has occurred”: 

(1) Father knowingly placed or knowingly allowed J.W. to remain in 

conditions or surroundings that endanger his physical or emotional wellbeing, see TEX. FAM. CODE § 161.001(b)(1)(D); (2) Father engaged in 

conduct or knowingly placed J.W. with persons who engaged in conduct 

that endangers his physical or emotional well-being, see id. 

§ 161.001(b)(1)(E); and (3) Father failed to comply with the provisions of 

a court order that specifically established the actions necessary for him 

to obtain the return of J.W. who has been in the temporary managing 

conservatorship of the Department for not less than nine months as the 

result of his removal under Chapter 262 of the Family Code, see id.

§ 161.001(b)(1)(O). The jury was instructed similarly as to Mother, 

although two additional predicate grounds—involving prior termination

of parental rights as to another child on endangerment grounds and use 
19

of a controlled substance in a manner that endangered J.W.’s health or 

safety—were also submitted for the jury’s consideration.

Father objected to the broad-form submission; that is, he objected 

to the three predicate grounds and best interest “being lumped together” 

into a single question. The trial court overruled that objection, and the 

jury found by clear and convincing evidence that both parents’ rights 

should be terminated. Consistent with that verdict, the trial court 

rendered a final order of termination.

Father appealed, arguing the evidence was insufficient to support 

the jury’s findings as to the three predicate grounds as well as the jury’s 

best-interest finding. Father presented as an alternative issue that “if 

there is evidence to support the jury’s predicate finding under one 

ground, the Court must nonetheless reverse and remand for a new trial, 

as Father objected to the trial court’s broad-form submission because 

there was no evidence to support at least one predicate.” Mother’s 

attorney filed a detailed Anders brief in the court of appeals, stating that 

after a thorough examination of the record for any potentially 

meritorious issues, she had identified no nonfrivolous issue to raise in 

the appeal. The court of appeals affirmed as to both parents. That 

judgment is final as to Mother, who did not petition this Court for 

review.

With respect to Father, the court of appeals initially held that the 

evidence was legally sufficient to support the best-interest finding and 

to support the predicate ground under Section 161.001(b)(1)(O)—failure 

to comply with a court order that established the actions necessary to 

obtain J.W.’s return. 2019 WL 1966798, at *4–6 (Tex. App.—Waco May 
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1, 2019). Because only one predicate ground is necessary to support a 

judgment for termination, In re A.V., 113 S.W.3d 355, 362 (Tex. 2003),

the court of appeals did not address Father’s sufficiency challenges to 

the two predicate grounds under Subsections (D) and (E) involving 

endangerment, see 2019 WL 1966798, at *4. The court of appeals also 

did not address Father’s assertion that the trial court erred in 

submitting a broad-form charge to the jury, holding that the issue was 

inadequately briefed. Id. at *7. 

Shortly after the court of appeals issued its opinion, this Court 

decided In re N.G., 577 S.W.3d 230 (Tex. 2019). In that case, we held 

that due process requires appellate review of a challenged finding under 

Section 161.001(b)(1)(D) or (E), even if sufficient evidence supports a 

different predicate termination ground, because of the potential 

consequences of a Subsection (D) or (E) finding with respect to parental 

rights to a different child. Id. at 235; see TEX. FAM. CODE

§ 161.001(b)(1)(M), (b)(2) (providing for termination of parental rights if 

the court finds by clear and convincing evidence that (1) the parent’s 

rights to another child were terminated based on a finding under 

Subsection (D) or (E) and (2) termination is in the child’s best interest). 

In light of that intervening change in the law, the court of appeals 

granted Father’s motion for rehearing and issued a substituted opinion. 

627 S.W.3d 662, 665 (Tex. App.—Waco 2019). 

In its opinion on rehearing, the court of appeals again held that 

legally sufficient evidence supported the Subsection (O) ground and the 

jury’s best-interest finding. Id. at 671, 673. The court further held that 

legally sufficient evidence supported termination under Subsections (D) 
21

and (E). Id. at 672. Because the court of appeals concluded that the 

evidence was sufficient to support all three predicate grounds submitted 

to the jury, it did not address Father’s argument that the trial court’s 

broad-form submission was reversible error. Id. at 673. We granted 

Father’s petition for review.

II. Standard of Review

A parent’s fundamental right to the care, custody, and control of 

his child is of constitutional magnitude. In re E.N.C., 384 S.W.3d 796, 

802 (Tex. 2012). Accordingly, to terminate that right, the State must 

meet a clear-and-convincing burden of proof at trial. In re A.B., 437 

S.W.3d 498, 502 (Tex. 2014); TEX. FAM. CODE § 161.001(b); see also id.

§ 101.007 (defining “clear and convincing evidence” as “the measure or 

degree of proof that will produce in the mind of the trier of fact a firm 

belief or conviction as to the truth of the allegations sought to be 

established”).

This heightened burden of proof affects the standard of review in 

an evidentiary challenge on appeal. To that end, in reviewing a legalsufficiency challenge, we must determine whether “a reasonable trier of 

fact could have formed a firm belief or conviction that its finding was 

true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Bearing in mind the 

required appellate deference to the factfinder, we “look at all the 

evidence in the light most favorable to the finding,” “assume that the 

factfinder resolved disputed facts in favor of its finding if a reasonable 

factfinder could do so,” and “disregard all evidence that a reasonable 

factfinder could have disbelieved or found to have been incredible.” Id. 

However, we may not disregard “undisputed facts that do not support 
22

the finding.” Id. Under this standard, the factfinder remains “the sole 

arbiter of the witnesses’ credibility and demeanor.” In re J.F.-G., 627 

S.W.3d 304, 312 (Tex. 2021) (quoting In re J.O.A., 283 S.W.3d 336, 346 

(Tex. 2009)).

III. Discussion

A court may terminate a parent’s right to his child if it finds by 

clear and convincing evidence both that (1) the parent committed an act 

prohibited under Texas Family Code Section 161.001(b)(1), and 

(2) termination is in the child’s best interest. TEX. FAM. CODE

§ 161.001(b); In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). The three 

predicate grounds under Section 161.001(b)(1) at issue here are: 

(D) [the parent has] knowingly placed or knowingly 

allowed the child to remain in conditions or surroundings 

which endanger the physical or emotional well-being of the 

child;

(E) [the parent has] engaged in conduct or knowingly 

placed the child with persons who engaged in conduct 

which endangers the physical or emotional well-being of 

the child; [and]

. . . .

(O) [the parent has] 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 . . . 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[.]

TEX. FAM. CODE § 161.001(b)(1)(D), (E), (O). Father argues that the 

evidence at trial was legally insufficient to support any of those 
23

predicate grounds as well as legally insufficient to support the finding 

that termination of his parental rights was in J.W.’s best interest. 

A. Failure to Comply with Service Plan

We first address Father’s assertion that the evidence is legally 

insufficient to support termination under Subsection (O), which applies 

when a 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 who has been in the permanent or temporary 

managing conservatorship of the Department . . . 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.” Id. § 161.001(b)(1)(O). 

Father does not dispute that J.W. has been in the temporary managing 

conservatorship of the Department for not less than nine months as the 

result of his removal under Chapter 262. Nor does Father assert that 

the trial court’s order incorporating the family service plan did not 

specifically establish the actions necessary for him to obtain J.W.’s 

return. Rather, Father contends that the Department “relied on things 

that were not actually part of his service plan to show noncompliance.”

As discussed, Father completed several of his service-plan 

requirements, including establishing paternity, submitting to random 

drug testing, signing releases of records, maintaining a steady income, 

completing a parenting assessment, attending visits with J.W., and 

attending counseling. But he did not, according to the Department, 

“maintain a safe and stable home environment” or contact the 

Department at least twice a month. On the record before us, we agree 

with the Department that a reasonable juror could have formed a firm 
24

belief or conviction that Father failed to maintain a safe and stable home 

environment and thus failed to comply with the service plan.8

Beginning with the condition of Father’s home, which the 

Department visited shortly after J.W. was removed and again a few 

months before trial, two caseworkers testified in detail that the home 

was unsafe and unsuitable for a child. That testimony and the 

accompanying photographic evidence are described above, and, again, 

Father made no effort at trial to refute it. Instead, Father asserts that 

the Department was well aware of Father’s plan to live elsewhere with 

J.W.—rendering the condition of his home “irrelevant”9—and gave him 

no indication that it disapproved of his plan. Nor, Father asserts, did 

any Department witnesses testify that they thought Father was 

untruthful about his intentions. Father characterizes the evidence as 

demonstrating that he had a concrete plan for raising J.W. in a stable 

environment and that the Department secretly and subjectively 

determined that the plan was insufficient. The Department responds 

that the requirement to maintain a safe and stable home was not a 

prospective one and that at the time of trial, the intended safe and stable 

home “simply did not exist.” The Department further contends that the 

jury was free to disbelieve Father’s testimony that he intended to move 

out of the home in which he had resided for forty years or “to infer that 

8 We need not address the parties’ dispute about whether Father 

maintained insufficient contact with the Department.

9 JUSTICE BLACKLOCK’s dissent concludes that Father did not waive the 

argument that his residence was in fact safe and stable. Post at 9 n.3

(Blacklock, J., dissenting). Regardless, the evidence supports the jury’s 

contrary conclusion. 
25

his behavior of creating a hazardous home would move with him” to his 

next home.

The record reveals that the jury was presented with ample 

evidence undermining the stability of Father’s plans for raising J.W., 

including where Father intended to live, his ability to independently 

parent J.W., and the nature of his continuing relationship with Mother, 

whose parental rights the jury also found should be terminated. For 

example, Father testified that he and Mother never intended to raise 

J.W. in the home that the Department considered to be unsafe for a child 

and that they had always planned to move in with Taylor after he was 

born. But the testimony of both the caseworkers and Taylor suggests 

otherwise. Taylor testified that discussions about moving in with her 

began after J.W.’s removal, and conflicting evidence was presented as to 

whether Taylor withdrew from consideration as a placement earlier in 

the proceedings. Although she testified at trial that she was willing to 

allow Father and J.W. to move in with her, and Father testified that this 

was the plan, the Department still had not been permitted to inspect her 

apartment. At the time of trial, Father remained in the same home in 

which he had lived for forty years and had provided no indication that 

he could maintain any future residence in a manner safe for a child. 

Even the car in which he presumably intended to transport J.W. had a 

broken back windshield and too much trash inside to allow for a car seat. 

Father’s intentions regarding Mother’s continued involvement in 

raising J.W. also remained murky at best at the time of trial, which was 

particularly concerning in light of Father’s own statements of 

uncertainty regarding his ability to independently parent J.W. Mother 
26

and Father filed for divorce the week before trial and, according to one 

caseworker, Father reported that he had told Mother they needed to 

“wait until after this case was done” to consider having more children. 

Based on her observations, the caseworker testified that she “believe[d] 

a reasonable person would see that they’re still in a relationship.”

The Department also presented evidence that Father continued 

to downplay Mother’s dependency issues and their impact on J.W. This 

included Father’s participation in the incident at All About Recovery in 

which he attempted to assist Mother in faking a drug test during the 

pendency of the termination proceedings. Father’s counselor testified 

that Father essentially believed whatever Mother told him, while 

Mother’s psychological evaluation indicated she underestimates the 

scope and intensity of her problems. Smith also testified that Mother 

and Father were in a “very controlling relationship,” as evidenced by 

Mother’s refusal to allow him to speak to the caseworkers when they 

visited J.W. Mother and Father pointed to their impending divorce as 

evidence that Father wanted a fresh start with J.W. But other evidence 

described above indicated a lack of candor with the Department and the 

court: that they did not intend to separate, they were still in a 

relationship, and the divorce was “in name only.”

Father’s continued association with Mother was not inherently 

problematic so long as there was evidence indicating Father could

ensure J.W.’s safety. But Father presented the divorce to the jury for 

just that purpose: to address the perception of his inability “to tell her 

no” given the Department’s concern “about the people she would bring 

around, the people he wouldn’t be able to protect not only himself from 
27

but also his child.” Thus, if the jury believed the divorce was not 

genuine, then it both called Father’s overall credibility into question and 

demonstrated that the divorce could not serve its purported purpose.10

Nor were the Department’s underlying concerns unjustified. 

Smith described a string of incidents ranging from a year before J.W. 

was born to the summer before the termination trial. The first incident 

occurred in April 2016 and involved a man named Mario Garcia, the 

same man Mother had once named as J.W.’s father on an application for 

government assistance and, according to Father, “a ten time felon.” 

Father was forced to call law enforcement when Garcia would not leave 

his and Mother’s home. About a week later, Mother texted Father that 

she was at a Walmart with Garcia and wanted Father to pick her up. 

When Father arrived, Mother would not leave with him, and law 

enforcement was called. Garcia told the police (falsely) that Father had 

been abusing Mother, and she said nothing; this led to Father’s being 

arrested and spending the night in jail, as well as entry of a protective 

10 To be clear, we certainly do not hold that Father was required to 

divorce Mother in order to comply with the service plan, nor do we take the 

Department’s position to be that Father could only maintain a safe and stable 

home environment for J.W. by getting a divorce. Rather, as noted, Father and 

Mother presented their pending divorce to both the Department and the jury 

as evidence that Father was willing and able to put J.W.’s needs above 

Mother’s, and neither the Department nor the jury was persuaded. If Father 

was misrepresenting his intentions and the divorce was illusory, then other 

evidence was necessary to demonstrate Father’s ability to protect the child. In 

other words, regardless of whether Father and Mother intended to live 

together after the conclusion of this litigation, Father was required to provide 

a safe and stable home for J.W., and the jury found that he did not. Had the 

jury been persuaded that Father would take adequate steps to ensure J.W.’s 

safety even if he and Mother continued to live together, the outcome may well 

have been different.
28

order that required him to leave the house for a brief period. Mother 

subsequently told the police she did not want to file charges, and the 

case was dismissed. A few months later, in August 2016, Father called 

law enforcement again when he discovered Mother had allowed Garcia 

back into their home and he “had a knife open.” That incident was 

followed in March 2017—when Mother was eight months pregnant—by 

the above-described episode involving Mother’s friend who had recently 

been released from jail and overdosed while staying in Mother and 

Father’s home. And in the summer of 2018, after he and Mother had 

expressed their intent to get a divorce, Father again allowed a recently 

jailed friend of Mother’s to stay in his home. 

Father dismisses those events as “isolated incidents” that 

occurred “long before J.W. was born.” We agree that Father’s conduct 

before J.W. was born cannot demonstrate failure to comply with a 

service plan generated after he was born. However, those incidents—

including the most recent that occurred the summer before trial—

provide context for a pattern that continued throughout the termination 

proceedings. We cannot reject as unreasonable the Department’s 

observation that those events, along with other evidence, are consistent 

with the opinion that: 

[Father] shows a pattern of behavior of denial about the 

extent and the issues that [Mother] has even with his 

knowledge of her addiction issues with her mental health 

issues, the fact that she refuses to get help, the fact that 

there’s a criminal element that’s around who’s involved

with drugs, the fact that he can’t seem to protect himself 

much less a child from the pattern of behaviors that she 

brings and he’s not willing to address those.
29

The jury was thus presented with evidence supporting the 

Department’s conclusion that Father had not maintained a safe and 

stable home environment, did not have a concrete plan for providing one 

for J.W., and had not taken practical steps to bring any such plan to 

fruition. Giving appropriate deference to the jury’s resolution of 

conflicts in the evidence, including witness credibility, we hold that the 

jury reasonably could have formed a firm belief or conviction that Father 

failed to maintain a safe and stable home environment, as his service 

plan required, and thus “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 . . . 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.” TEX. FAM. CODE

§ 161.001(b)(1)(O).

JUSTICE BLACKLOCK’s dissent accuses both the Department and 

this Court of relying on suspicion about Father’s future actions and 

intentions rather than the actions he actually took with respect to 

maintaining a safe and stable home environment. Post at 4–6

(Blacklock, J., dissenting). In the dissent’s view, the crux of the dispute 

is the availability of Taylor’s clean and safe home, and the evidence 

points to no other possible conclusion than that Taylor’s home was safe 

and available and that Father had maintained a consistent, concrete 

plan to utilize that home and then “explore moving to Fort Worth” with 

J.W. Id. at 10. We disagree on several fronts.
30

First, while the elevated burden of proof was certainly on the 

Department, the responsibility to weigh evidence, draw inferences, and 

evaluate witness credibility was on the jury. No one argues, and we do 

not hold, that the evidence conclusively establishes Father’s failure to 

maintain a safe and stable home environment during the pendency of 

the proceedings, as the service plan required. The jury could have 

chosen, as the dissent does, to credit Father’s and Taylor’s testimony on 

the subject and to draw inferences in Father’s favor. But the jury was 

not required to do so, particularly in the face of evidence that reasonably 

led it to discount that testimony. 

To that end, the dissent argues that inconsistencies regarding 

whether Father ever intended to raise J.W. in his home, whether Taylor 

ever withdrew as a possible placement, whether the Department has 

inspected Taylor’s home, and the current condition of Father’s residence 

and vehicle have no bearing on whether Taylor’s home is “presently 

available.” Id. at 10–14. But these inconsistencies raise significant 

credibility issues—as to both Father and Taylor—regarding whether 

Father had an actual plan that he had taken actual steps to implement. 

Indeed, if nothing else, as JUSTICE BOYD’s dissent notes, the evidence 

that Father attempted to help Mother fake the results of a drug test (and 

his denial of the event) could reasonably have led the jury to doubt 

Father’s entire testimony. Post at 5 (Boyd, J., dissenting); see In re 

J.F.-G., 627 S.W.3d at 312 (holding that the factfinder remains “the sole 

arbiter of the witnesses’ credibility and demeanor”). Moreover, Father’s 

specific testimony about his living situation was contradicted by, among 

other things, Department witness Kelly Allen’s testimony that over the 
31

course of the proceedings, Father had given “numerous possible 

locations where he and [J.W.] will live, but has never made any steps to 

prepare these homes to live there.” She continued that Father indicated 

on the Friday before trial that “he would be living possibly with [Taylor]” 

and that when the Department “asked to see the home he said the room 

still wasn’t ready.” Of course, “unready” does not necessarily equate to 

“unsafe,” post at 12–13 (Blacklock, J., dissenting), but it is entirely 

consistent with the Department’s view about the stability of the home 

Father planned to provide J.W. 

The service plan required Father to “maintain,” in the present, a 

“safe and stable home environment.” While JUSTICE BLACKLOCK’s

dissent opines that we must impermissibly speculate about Father’s 

intent in order to conclude that he failed to do so, it is the dissent who 

ignores the evidence of Father’s conduct throughout the proceedings (or 

at least, chooses to believe Father’s account rather than the 

Department’s) and instead speculates that Father will be able to provide 

a safe and stable home environment for J.W. in the future. On the 

record presented, drawing all credibility determinations and reasonable 

inferences in favor of the jury’s verdict, rather than against it, the jury 

reasonably could have concluded by clear and convincing evidence that 

the only “home environment” Father had ever maintained was a 

residence that was unsafe for a child.

The dissent also discounts the evidence regarding Father’s 

actions with respect to Mother as irrelevant to the requirement that he 

maintain a safe and stable home environment. Again, the dissent 

accuses us of speculating that Father will not provide a safe home 
32

environment in the future, but it is the dissent who engages in 

speculation. The jury heard evidence that Mother’s own conduct 

contributed to making Father’s home unsafe, that Father minimized her 

problems and could not “tell her no” (to the point that he helped her fake 

a drug test and reportedly assented to having more children with her 

after the “case was done”), and that Father was either unable or 

unwilling to put J.W.’s needs above Mother’s. The dissent believes 

Father’s testimony to the contrary; the jury did not.11 

B. Best Interest

Father next argues that he is entitled to rendition of judgment 

because legally insufficient evidence supports the jury’s finding that 

termination of his parental rights is in J.W.’s best interest. The bestinterest prong of the termination inquiry “is child-centered and focuses 

on the child’s well-being, safety, and development.” In re A.C., 560 

S.W.3d 624, 631 (Tex. 2018). We have identified several nonexclusive 

factors that guide the inquiry, including: (1) the desires of the child; 

(2) the child’s emotional and physical needs now and in the future; 

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

(4) the parenting abilities of the individuals seeking custody; (5) the 

programs available to assist those individuals to promote the child’s best 

11 The dissent’s reductionist statement that Father’s rights to his child 

were terminated because “he cares too much for his wayward wife” and “does 

not take out the trash” is certainly catchy, post at 26 (Blacklock, J., dissenting), 

but it does not come close to encapsulating the evidence that was presented to 

the jury over the course of the five-day trial. Courts may not overlook conduct 

that subjects a child to serious risks merely by characterizing it as conduct that 

supports a “wayward” spouse. 
33

interest; (6) the plans for the child by those individuals or by the agency 

seeking custody; (7) the stability of the home or proposed placement; 

(8) the parent’s acts or omissions that may indicate the existing parent–

child relationship is improper; and (9) any excuse for the parent’s acts 

or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The 

jury charge listed these factors for the jury’s consideration in 

determining J.W.’s best interest.

In holding the evidence was sufficient to support the best-interest 

finding, the court of appeals noted that: J.W. has been with his foster 

family since he was released from the hospital; his physical and 

emotional needs are being met by the family, who plan to adopt in the 

event the parents’ rights are terminated; the foster parents have a 

family support system; the jury heard evidence that Father is not able 

to place J.W.’s needs above Mother’s and that he allows Mother to 

control him; since getting involved with Mother, Father has allowed 

persons to live in his home who abused drugs and was arrested after the 

incident with Mother and Garcia; and evidence was presented indicating 

that the divorce, which Father himself presented as a justification for 

maintaining his parental rights, was “in name only.” 627 S.W.3d at 673. 

Father notes the undisputed evidence that he has an upstanding 

character, volunteers, helps people in need, is even-tempered and 

patient, and has a solid support system of family and friends. As to the 

Holley best-interest factors, Father summarily asserts that the only 

factor now weighing in favor of termination is the length of time J.W. 

has been with a foster family with whom he should never have been 

placed. On a more general level, Father asserts that “‘[l]ack of 
34

protectiveness’ has become a problematic mantra . . . to justify cutting 

off children from their parents and village of family and caregivers in 

favor of unrelated placements” and that the Department failed to meet 

the stringent requirements necessary to justify placing a child in an 

unrelated home rather than with parents or a kinship. See TEX. FAM.

CODE §§ 261.307, 262.1095, 262.114(d). Father continues that this 

rejection of any possible kinship placement “based on unfounded fears 

Mother may attempt to interject herself into his life at some point (while 

ignoring that J.W. has a loving parent and is fortunate enough to have 

a village of extended family and fictive kin that would support him), is 

the antithesis of the child-centered focus of the best-interest inquiry.”

As an initial matter, we disagree with Father’s premise regarding 

J.W.’s placement and note that Father did not seek relief from the trial 

court’s temporary order following the initial adversary hearing, in which 

the trial court found that J.W. should not be returned to his parents. 

See id. § 262.201(g) (requiring the trial court, at the conclusion of a full 

adversary hearing following a child’s emergency removal, to return the 

child to the parent unless sufficient evidence shows, among other things, 

that “there is a substantial risk of a continuing danger if the child is 

returned home”); see also In re T.M., No. 14-20-00703-CV, 2021 WL 

865363, at *4–5 (Tex. App.—Houston [14th Dist.] Mar. 9, 2021, orig. 

proceeding) (granting mandamus relief from the trial court’s order 

declining to return the child to the parents due to insufficient evidence 

of the court’s findings under Section 262.201(g)). Moreover, Father 

overstates the evidence that he claims demonstrates a vague and 
35

unsupported “lack of protectiveness” justification for any placement 

suggested by the parents. 

As to Father himself, caseworker Gresset testified that when J.W. 

was removed, Father informed the Department he did not think he could 

independently parent J.W. at that time, and Gresset was concerned 

about Father’s expressed lack of knowledge about Mother’s substance 

abuse. As the investigation continued, the Department discovered 

additional information, described above, regarding the condition of 

Father’s home, the risks posed by Mother’s presence, and the status and 

nature of Mother and Father’s relationship. Father faults the 

Department for failing to explain why it did not consider or conduct a 

home study on his family in Fort Worth, but he wholly disregards 

Gresset’s testimony that the family members took themselves out of 

consideration as placements for J.W. With respect to Mother’s sister, 

the Department’s home study raised concerns about her ability to meet 

a child’s needs, and a caseworker testified that she too withdrew her 

name from consideration as a placement. Finally, the Salas family was 

ruled out because of concerns about a romantic relationship between 

Mother and a member of the Salas household. Moreover, Mrs. Salas 

testified that Mother had been living with them for a little over a year 

at the time of trial, and we cannot fault the Department for declining to 

place J.W. with Mother. 

Importantly, given the child-centered focus of the best-interest 

inquiry, we may not discount or minimize the level of permanence J.W. 

has achieved with his foster family, with whom he has lived since he was 

a month old. We will not recount the above-described evidence in detail, 
36

but the same evidence that supports termination of Father’s rights 

under Subsection (O) also supports the best-interest finding. See In re 

J.F.C., 96 S.W.3d at 275 (noting that “most of the evidence relevant to 

the best interest of the children was also relevant to the grounds for 

termination based on the parents’ conduct set forth in the charge”). 

Considering the evidence in the light most favorable to the jury’s bestinterest finding, we agree with the court of appeals that the evidence is 

legally sufficient to support that finding.

We certainly do not condone or make light of the potential, 

highlighted by Father, for the Department to summarily dismiss all 

kinship placement options in a “quest to punish a parent” rather than 

serve the best interest of the child. Such behavior threatens to 

unjustifiably invade a parent’s due process rights and would violate both 

federal and state law. See 42 U.S.C. § 671(a)(19) (requiring states, as a 

condition of eligibility for federal funding, to consider giving preference 

to an adult relative over an unrelated caregiver when determining a 

placement for a child, “provided that the relative caregiver meets all 

relevant State child protection standards”), (29) (requiring the State to 

notify certain relatives about the child’s removal and possible 

participation in the child’s placement); TEX. FAM. CODE

§§ 261.307(a)(2)(A)(ii) (requiring the Department, if it determines 

removal may be warranted, to provide the parent a proposed childplacement resources form to identify potential relative or other 

designated caregivers), 262.114(d) (requiring the Department to give 

preference to the child’s relatives in making a placement decision). 
37

However, we cannot conclude on the record before us that that is what 

happened here.

C. Endangerment

Although legally sufficient evidence supports the Subsection (O) 

ground and best interest, and only one predicate ground is necessary to 

support a judgment for termination, In re A.V., 113 S.W.3d at 362, we 

may not bypass Father’s evidentiary challenges to Subsections (D) and 

(E), the so-called endangerment grounds. Those grounds bear special 

significance because termination of a parent’s rights under either can 

serve as a ground for termination of his rights to another child. TEX.

FAM. CODE § 161.001(b)(1)(M); see In re N.G., 577 S.W.3d at 237 (holding 

that due process mandates appellate review of Subsection (D) and (E) 

findings when the parent has preserved the issue regardless of whether 

the termination judgment could be affirmed on another ground). 

Further, Father argues that if legally insufficient evidence supports any 

one termination ground, the case must be remanded for a new trial 

because the trial court erroneously submitted a broad-form termination 

question, to which Father objected, and we thus cannot determine from 

the charge whether the jury terminated his rights on an invalid ground. 

Accordingly, we next address the evidence of endangerment. 

We have said that to “endanger” means “to expose to loss or 

injury; to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 

531, 533 (Tex. 1987). Although “‘endanger’ means more than a threat of 

metaphysical injury or the possible ill effects of a less-than-ideal family 

environment,” it does not require that there be conduct “directed at the 

child” or that “the child actually suffer[] injury.” Id. The court of appeals 
38

held that the evidence was sufficient to support the endangerment 

grounds because it showed that Mother used illegal substances while 

pregnant with J.W., Father was aware of her dependency issues but 

exhibited a pattern of denial and minimization of those issues, and 

Father was unwilling to address the danger Mother posed. 627 S.W.3d 

at 672.

We begin with Subsection (D), which focuses on the child’s 

environment and may be utilized as a ground for termination when the 

parent has “knowingly placed or knowingly allowed the child to remain 

in conditions or surroundings which endanger the physical or emotional 

well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(D); see In re 

E.M., 494 S.W.3d 209, 221 (Tex. App.—Waco 2015, pet. denied) (noting 

that Subsection (D) “permits termination if the petitioner proves 

parental conduct caused a child to be placed or remain in an 

endangering environment”). While we have had little occasion to 

address Subsection (D), the courts of appeals have held that the relevant 

time frame for evaluating this ground is before the child’s removal “since 

conditions or surroundings cannot endanger a child unless that child is 

exposed to them.” E.g., In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—

Texarkana 2013, pet. denied); see also In re R.S.-T., 522 S.W.3d 92, 109 

(Tex. App.—San Antonio 2017, no pet.); In re J.A.J., 225 S.W.3d 621, 

627 (Tex. App.—Houston [14th Dist.] 2006) (noting that under 

Subsection (D), “it must be the environment itself that causes the child’s 

physical or emotional well-being to be endangered”), rev’d in part on 

other grounds, 243 S.W.3d 611 (Tex. 2007). As a general matter, we 
39

agree with that reasoning.12 The suitability of a child’s living conditions 

and the conduct of parents or others in the home are relevant to a 

Subsection (D) inquiry. In re R.S.-T., 522 S.W.3d at 108–09. Moreover, 

evidence that a parent will knowingly expose the child to a dangerous 

environment in the future, while relevant to a best-interest 

determination, is not proof that the parent has knowingly exposed the 

child to a dangerous environment in the past for Subsection (D) 

purposes. In re J.R., 171 S.W.3d 558, 570 (Tex. App.—Houston [14th 

Dist.] 2005, no pet.).

In this case, J.W. was hospitalized immediately after his birth, 

and he was removed and placed with an unrelated foster family upon 

his discharge from the hospital. Both Mother and Father have had only 

supervised visits with him since his birth and have had no say in his 

living conditions. Accordingly, to support the jury’s Subsection (D) 

finding, the Department necessarily relies on Father’s role in J.W.’s 

“environment” before he was born. Certainly, Mother’s use of controlled 

substances while pregnant created a dangerous environment for J.W., 

but the extent to which Father bears responsibility for that environment 

is a much more difficult question.

12 To the extent the courts of appeals hold that a parent could never 

cause his child to be placed in an endangering environment after removal, we 

disagree, as we cannot foreclose the possibility that Subsection (D) could apply 

post-removal depending on the facts. But typically, a parent whose child has 

been removed and who has only supervised visitation has no control over the 

child’s environment, and the parent’s conduct during that time will thus be 

unrelated to Subsection (D).
40

While we have not yet addressed this issue, several courts of 

appeals have held that a parent’s knowledge of the other parent’s drug 

use during pregnancy and corresponding failure to attempt to protect 

the unborn child from the effects of that drug use can contribute to an 

endangering environment and thus support an endangerment finding. 

See, e.g., In re H.M.J., No. 06-18-00009-CV, 2018 WL 3028980, at *5 

(Tex. App.—Texarkana June 19, 2018, no pet.) (affirming Subsection (E) 

finding where the father was aware of the mother’s drug use during 

pregnancy and the effects it could have on the child’s well-being, and 

neither reported her to the Department or the police nor made an effort 

to ensure that she received substance-abuse treatment); In re J.W.S., 

No. 06-14-00018-CV, 2014 WL 3013352, at *6 (Tex. App.—Texarkana 

July 2, 2014, no pet.) (holding that the evidence was sufficient for the 

trial court to find endangering conduct where the father knew of the

mother’s drug use during the pregnancy but did nothing to stop it). We 

agree, as holding otherwise would effectively endorse a parent’s willful 

ignorance of the significant risk that a pregnant mother’s drug use 

poses, which we decline to do. But neither do we endorse attributing 

any and all known dangers posed to a child during the mother’s 

pregnancy to the other parent. As is often the case in parentaltermination proceedings, the inquiry is necessarily dependent on the 

facts and circumstances.13 

13 Of course, if a parent actively participates in creating or maintaining 

a dangerous environment during the pregnancy, e.g., does drugs with the 

pregnant mother, encourages her drug use, or supplies drugs, we see no reason 

why such conduct would not qualify as endangerment under Subsection (D). 

That is not the kind of conduct at issue here. 
41

Indeed, Father does not disclaim all responsibility for J.W.’s wellbeing during Mother’s pregnancy; rather, he posits that the abovedescribed cases imputing endangering conditions or conduct involving

drug use by one parent to the other “involve the opposite of this case, i.e., 

where the parent knows that another parent’s drug use might be 

endangering but does nothing to help.” Here, Father asserts, he “did 

everything he could to assist pregnant Mother in her quest [to] overcome 

addiction.” 

Whether or not Father did “everything he could,” he made what 

can only be described as a concerted effort to help Mother address her 

addiction under the circumstances. When Mother informed him of her 

problem, he searched extensively for a facility that would accept 

pregnant women, only for Mother to unexpectedly leave the facility 

before completing the program. When she returned to Texas, Father 

had already begun a work-related project in Houston, and she initially 

joined him until his hours escalated considerably. After completing the 

project, Father again searched for a facility for Mother and, when she 

was accepted to the methadone clinic, drove her from College Station to 

Houston every day for several weeks to receive treatment. On this 

record, the jurors may have reasonably concluded that Father could 

have better handled the difficult situation into which he was thrust by 

Mother’s addiction, but they could not have reasonably concluded by 

clear and convincing evidence that Father disregarded his parental 

obligations to the degree that he knowingly “allowed” J.W. to be placed 

or remain in a dangerous environment.
42

Unlike the evidence relating to Subsection (O), which hinged 

largely on credibility determinations in the face of conflicting evidence, 

the evidence relating to Subsection (D) was straightforward and 

conclusively insufficient to justify termination on that ground. Because 

legally insufficient evidence supports the jury’s finding that Father’s 

rights should be terminated under Subsection (D), the trial court erred 

in submitting that invalid ground to the jury. We thus turn to the effect 

of that error on the termination judgment’s viability.

D. Broad-Form Submission

Father argues that in light of his objection to the submission of 

all three predicate grounds in a broad-form jury question,14 legally 

insufficient evidence of any one ground requires reversal and remand 

for a new trial. He cites Harris County v. Smith, in which we held that 

the trial court erred by submitting a broad-form question on damages 

that included an element without any evidentiary support. 96 S.W.3d 

230, 231 (Tex. 2002). Our holding in Harris County followed Crown Life 

Insurance Co. v. Casteel, in which we held that “[w]hen a single broadform liability question erroneously commingles valid and invalid 

liability theories and the appellant’s objection is timely and specific, the 

error is harmful when it cannot be determined whether the improperly 

submitted theories formed the sole basis for the jury’s finding.” 22 

S.W.3d 378, 389 (Tex. 2000). Applying Casteel, we held that the charge 

14 Again, the jury was instructed that in order to terminate, it had to 

find by clear and convincing evidence that “at least one” of the three statutory 

grounds was satisfied and that termination was in J.W.’s best interest.
43

error in Harris County was harmful because, under the circumstances, 

the appellate court was prevented “from determining ‘whether the jury 

based its verdict on an improperly submitted invalid’ element of 

damage.” 96 S.W.3d at 234 (quoting Casteel, 22 S.W.3d at 388). 

Here, the broad-form charge erroneously, and over Father’s 

objection,15 commingled a valid termination ground supported by 

sufficient evidence (Subsection (O)) with an invalid termination ground 

supported by legally insufficient evidence (Subsection (D)). We 

reaffirmed in Harris County that the right to a fair trial includes “a jury 

properly instructed on the issues ‘authorized and supported by the law 

governing the case.’” Id. (quoting Casteel, 22 S.W.3d at 389). In a case 

involving termination of parental rights, the “‘death penalty’ of civil 

cases,” the importance of safeguarding a parent’s right to a fair trial is 

even more pronounced. In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014)

(Lehrmann, J., concurring).

Recent revisions to our jury-charge rules in the context of 

parental-termination proceedings highlight these concerns. Generally, 

our rules require submission of broad-form questions to the jury 

“whenever feasible.” TEX. R. CIV. P. 277. Applying this rule, we held in 

Texas Department of Human Services v. E.B. that a broad-form parentaltermination question, rather than separate questions for each statutory 

termination ground, is permissible. 802 S.W.2d 647, 649 (Tex. 1990). In 

2020, we amended Rule 277 to overrule E.B. and require the trial court, 

15 We held in In re A.V. that even in a parental-termination case, an 

objection in the trial court is required to preserve error based on broad-form 

submission. 113 S.W.3d at 363.
44

in a parental-termination case, to “submit separate questions for each 

parent and each child on (1) each individual statutory ground for 

termination of the parent–child relationship and (2) whether 

termination of the parent–child relationship is in the best interest of the 

child.” TEX. R. CIV. P. 277. Under the amended rule, a broad-form 

termination question is error regardless of the evidentiary support for a 

particular ground.

The amended rule does not apply here because the case was tried 

in 2018. However, it underscores the need to ensure that a parent’s 

rights to his child are terminated only on a valid ground supported by 

the evidence. Because we cannot determine here whether the jury based 

its verdict on an improperly submitted termination ground, we must 

reverse the court of appeals’ judgment and remand for a new trial.16 As 

noted, the judgment of termination is final as to Mother, so the sole focus 

of the new trial on remand will be whether Father’s parental rights 

should be terminated.

IV. Conclusion

We hold that legally sufficient evidence supports one of the 

statutory grounds for termination (Subsection (O)) and the jury’s finding 

that termination was in J.W.’s best interest. Accordingly, Father is not 

entitled to rendition of judgment. However, we also hold that the 

termination question was erroneously submitted to the jury in broad 

16 We express no opinion on the sufficiency of the evidence to support 

the Subsection (E) ground and leave it to the trial court to determine in the 

first instance whether that ground should be resubmitted to the jury.
45

form, such that the jury could have terminated Father’s rights under an 

invalid and unsupported ground (Subsection (D)). We reverse the court 

of appeals’ judgment as to Father and remand the case to the trial court 

for a new trial. 

 

 Debra H. Lehrmann

 Justice

OPINION DELIVERED: May 27, 2022