In the Interest of E.O., a Child v. the State of Texas

Opinion

In The

Court of Appeals

Seventh District of Texas at Amarillo

No. 07-26-00287-CV

IN THE INTEREST OF E.O., A CHILD

On Appeal from the 237th District Court Lubbock County, Texas

Trial Court No. DC-2024-FM-1802, Honorable Kelly Tesch, Presiding1

August 27, 2026

MEMORANDUM OPINION

Before DOSS and YARBROUGH and PRATT, JJ.

Appellant, N.P. (Father), father of E.O. (Child), appeals from an order terminating his parental rights to Child in a suit affecting the parent-child relationship brought by Appellee, the Texas Department of Family and Protective Services (the Department).2 J.O. (Mother) voluntarily terminated her parent-child relationship and did not participate in the final hearing of the suit. By a single issue, Father challenges the legal and factual

1 Sitting by assignment.

2 For the protection of the parties, we have referred only to their initials.

Otherwise, we refer to

them as Father, Mother, and Child. TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b).

sufficiency of the evidence supporting the trial court’s finding under Texas Family Code § 161.001(b)(1)(D). We modify the trial court’s order and affirm as modified.

BACKGROUND

Child was born on May 29, 2024. The next day the Department received a report alleging the neglectful supervision of Child. According to the report, Mother had an extensive history of methamphetamine use, and she tested positive for methamphetamine on a prenatal drug screen conducted December 2023.3 After establishing contact with Mother, the Department created a safety plan for Mother and Child. For several weeks, Mother attempted to follow the Department’s safety plan. Mother was living with a boyfriend and his mother at the time. The investigator maintained consistent contact with Mother, reported Mother stayed sober, and had no concerns regarding Mother’s ability to parent Child.

However, on July 19, 2024, the investigator was informed that Mother had left boyfriend’s home, so the scheduled family meeting could not take place. For the next few weeks, the investigator made several repeated attempts to contact Mother with no success. On August 22, 2024, the investigator met with Mother, who admitted to relapsing and discussed some recent mental health episodes. The Department determined safety interventions would be necessary and made the decision to remove Child. Mother offered two relatives as potential placement options, but both were denied due to criminal history. The Department placed Child in foster care.

3 Both Mother and Child tested negative for all substances at birth.

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The next day, the Department filed a petition for conservatorship of Child and to terminate the parent-child relationship. Based on the names provided by Mother, the suit named three men as alleged father of Child, including Father. Father reached out to the Department’s investigator that same day. Father indicated he knew of Mother’s pregnancy, but he was not sure if he was the father of Child. He was cooperative and wanted to have Child with him. At the time, based on her discussion with Father, the investigator believed Father was staying with Mother and her mom in Lubbock, but investigators never visited directly with Father at this location. Father indicated he had been in Plainview the week prior to removal of Child. Because of the uncertain paternity and Father’s criminal history, the Department did not place Child with him. Father was not accused of any abuse or neglect of Child in this initial investigation by the Department.

Father filed an appearance, pro se, on September 4, 2024, requesting genetic testing, and the trial court ordered Father to submit to testing on September 5, 2024. Father also filed his answer on September 10, 2024, through his counsel. On January 15, 2025, the Department—based on the results of the DNA test—moved to adjudicate with Father as the other parent of Child.

The February 6, 2025 order of the court from the initial permanency hearing permitted supervised visitation for Father and found Father had partially complied with the service plan. By August 25, 2025, Father had not completed the service plan to the satisfaction of the Department, but the trial court ordered the matter to be retained on the docket to permit Father more time “towards reunification and placement.” Until this point, it appears from the record Father was both participating in the hearings and engaging in visitation with Child. However, by March 18, 2026, at a subsequent permanency hearing,

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the trial court found Father was no longer attempting to comply with the service plan. He was also not engaging in visitation with Child.

The final hearing took place on the following dates: February 13, March 6, April 17, and April 24, 2026. As Mother voluntarily terminated her parent-child relationship, at the final hearing, the only issue before the court was the termination of Father’s rights. Father participated in only the first day of the hearing, but his counsel represented Father on the last three days of the hearing. The witnesses presented at the final hearing were a permanency specialist from St. Francis Ministries, the Department’s investigator who responded to the initial referral regarding Mother, and the officer who arrested Father for public intoxication in March 2025. The only other evidence presented by the Department was the appearances of Mother and Father in the suit, and the Department-created service plans for Father and Mother. At the end of the hearing, the trial court terminated Father’s parent-child relationship based on findings of child endangerment under subsections (D), (E), and constructive abandonment under subsection (N) of the Family Code.

STANDARD OF REVIEW

A parent’s right to the “companionship, care, custody, and management” of his or her child is a constitutional interest “far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). We strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural parents are not

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absolute” and “[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)).

Pursuant to the Texas Family Code, to terminate parental rights, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. TEX. FAM. CODE § 161.001(b). Recognizing that a parent may forfeit his or her parental rights by his or her acts or omissions, the primary focus of a termination suit is protection of the child’s best interests. See id. Parental rights are not absolute, and it is essential that the emotional and physical interests of a child are not sacrificed merely to preserve those rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).4

In reviewing for legal sufficiency, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344−45 (Tex. 2009). In reviewing for factual sufficiency, we give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). If, considering the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

4 The Texas Constitution was amended in 2025 to acknowledge parental rights and responsibilities.

TEX. CONST. art. 1, § 37. It affirms a parent’s responsibility to nurture and protect a child and affirms a parent as the primary decision maker for the child’s upbringing.

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The clear and convincing evidence standard does not mean the evidence must negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall that the trier of fact has the authority to weigh the evidence, draw reasonable inferences therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the right to resolve credibility issues and conflicts within the evidence and may freely choose to believe all, part, or none of the testimony espoused by any witness. Id. Where conflicting evidence is present, the factfinder’s determination on such matters is generally regarded as conclusive. In re I.O., 645 S.W.3d 895, 903 (Tex. App.—Amarillo 2022).

ANALYSIS

“To affirm a termination judgment on appeal, a court need uphold only one termination ground—in addition to upholding a challenged best interest finding—even if the trial court based the termination on more than one ground.” In re N.G., 577 S.W.3d 230, 232–33 (Tex. 2019). Because Father did not challenge grounds (N) or (E) in his appeal, the termination judgment must be affirmed.

However, “[w]hen a parent has presented the issue on appeal, an appellate court that denies review of a section 161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent’s only chance for review of a finding that will be binding as to parental rights to other children.” Id. at 235. This is because “a finding that the parent’s conduct was in violation of Paragraph (D) or (E)” may be used for subsequent termination of that parent’s relationship with another child without any other

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violation. TEX. FAM. CODE § 161.001(b)(1)(M) (emphasis added). Therefore, due process requires us to review the Appellant’s enumerated issue related to the trial court’s findings.

Under predicate ground (D), a trial court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that a parent “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.” § 161.001(b)(1)(D). Subsection (E) permits termination of parental rights if the parent “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.” § 161.001(b)(1)(E).

Even though both predicate grounds (D) and (E) pertain to instances in which a parent’s decisions endanger a child, the statutory text reveals a crucial distinction. Endangerment of the child’s physical or emotional well-being is an element of both subsections (D) and (E) and requires such proof. See TEX. FAM. CODE § 161.001(1)(D), (E); see also In re N.K., 399 S.W.3d 322, 329–30 (Tex. App.—Amarillo 2013, no pet.) “[E]ndanger” 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 is not necessary that the conduct be directed at the child or that the child actually suffers injury.” Id.; see also In re N.K., 399 S.W.3d 30.

Subsection (D) focuses on the child’s environment—the “conditions or surroundings” where the child is placed or allowed to remain. Subsection (E), by contrast, focuses on the parent’s conduct. In the Int. of L.M.J., No. 07-25-00200-CV,

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2025 Tex. App. LEXIS 9734, at *1 (Tex. App.—Amarillo Dec. 18, 2025, pet. denied) (mem. op.). Under subsection (D), “Inappropriate, abusive, or unlawful conduct by persons who live in the child’s home or with whom the child is compelled to associate on a regular basis in his home is a part of the ‘conditions or surroundings’ of the child’s home”. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g). The factfinder may infer from past conduct endangering the child’s well- being that similar conduct will recur if the child is returned to the parent. Id. The relevant timeframe for inquiry under subsection (D) is prior to the child’s removal. In re J.W., 645 S.W.3d 726, 749 (Tex. 2022).

In this case, the Department failed to present sufficient evidence that Father knowingly placed or knowingly allowed Child to remain in endangering conditions or surroundings prior to removal. The Department’s evidence established Child was removed from Mother in August 2024, but Father’s paternity was not confirmed—at the request of Father—until January 2025. Further, at the time the Department filed its termination petition, the Department named two other men as potential parents of Child. While Father previously knew Mother was pregnant with Child, he did not have knowledge at the time of removal he was indeed the father of Child, a fact corroborated by the Department’s investigator. The Department also indicated that Mother was in another relationship when it became involved in the case, so Father was not a part of the initial inquiries and investigation.

Moreover, the evidence fails to establish that Father had any control over the Child’s environment during the relevant timeframe. The Department presented some evidence that Father was staying with Mother at one time prior to removal. However,

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Father was not at Mother’s house when Child was removed, and Father told investigators he was in Plainview for work the week prior. On redirect, the investigator admitted neither she nor any other investigator involved with this matter saw Father in Mother’s home or knew he had stayed there. The investigator did not testify as to when Father had been staying with Mother, how long Father had been staying with Mother, what his level of contact with Mother was while she was pregnant with Child, what his level of contact with Child was, or if Child was ever in his care.

Additionally, at final hearing, the Department’s evidence of Father violating subsection (D) is largely based on Father being in the home while Mother was having relapse issues. The Department’s investigator testified, “It was concerning if he was there, did he have knowledge of her using and what was his protective capacity, if she was using in the home with him being there.” However, the Department did not present evidence on whether Father had this knowledge of Mother’s drug use in the residence prior to removal. The Department indicated there was no evidence that Father knew or could have prevented Mother’s drug use. It also does not account for the fact that Father did not know he was Child’s father prior to the results of the paternity test months after he spoke with the investigator. This evidence creates a mere suspicion of Father’s potential knowledge of Mother’s relapse into drug use, the key endangering concern for the Department. The Department’s evidence is legally and factually insufficient to establish Father “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of” Child. § 161.001(b)(1)(D). We sustain Father’s sole issue.

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CONCLUSION

Having sustained the issue raised by Father, we modify the order of the trial court by deleting the finding Father violated section 161.001(b)(1)(D) of the Texas Family Code. We affirm the judgment as modified.

Laura A. W. Pratt

Justice