Dissenting Rule: Legal-Sufficiency Review Must Defer to the Jury in Termination Best-Interest Findings When a Parent Knowingly Re-Exposes Children to Domestic Violence and Ongoing Drug Use

I. Introduction

This parental-rights termination case arises from a Department investigation triggered by severe domestic violence and repeated self-harm threats by the children’s father. After a May 2022 assault in which Father choked Mother and slammed her onto a toolbox—while a child watched—Mother fled with the children. The record also describes multiple prior incidents in the home involving Father’s violent outbursts, suicide attempts, threats with firearms, and other self-harm behavior, often while the children were present.

Mother initially told a Department investigator she believed Father would eventually kill her and said she did not intend to reunite with him. The Department implemented a safety plan prohibiting Father from having unsupervised contact with the children and warned Mother that violating the plan could result in removal. Mother agreed—but later refused Department access to the children without a warrant. A welfare check then revealed Father back in the home, unsupervised with the children, in violation of the safety plan. The Department removed the children.

At trial, a jury found (by clear and convincing evidence) predicate grounds for termination—including endangerment under Texas Family Code § 161.001(b)(1)(D) and (E)—and that termination of both parents’ rights was in the children’s best interest. The trial court terminated both parents’ rights; the court of appeals affirmed. The Supreme Court of Texas (majority) agreed termination as to Father was in the best interest but held termination as to Mother was not. Justice Lehrmann dissented from that portion, arguing the majority failed to apply the correct deferential legal-sufficiency review and improperly discounted evidence supporting the jury’s findings.

II. Summary of the Opinion (Dissenting in Part)

Justice Lehrmann agrees Father’s rights were properly terminated. She would also uphold termination of Mother’s parental rights because, in her view, legally sufficient evidence supports the jury’s findings under the heightened clear-and-convincing standard.

The dissent’s core holdings-in-principle are:

• Standard-of-review emphasis: Even under heightened review for clear-and-convincing evidence, appellate courts must defer to the jury as the sole arbiter of credibility and must not reweigh disputed evidence.
• Endangerment (predicate grounds): Mother’s knowing violation of the safety plan—allowing Father back into the home despite recognized danger—combined with evidence of ongoing drug use, could allow a reasonable jury to form a firm belief that Mother endangered the children under § 161.001(b)(1)(D) and (E).
• Best interest: Mother’s expressed unwillingness at trial to keep Father away, her minimization of the danger, and her drug use provided legally sufficient evidence that termination was in the children’s best interest, despite evidence the children loved their parents and wanted to return home.

III. Analysis

A. Precedents Cited

1. The clear-and-convincing burden and appellate legal-sufficiency review

• In re J.W., 645 S.W.3d 726 (Tex. 2022): The dissent repeatedly relies on In re J.W. for (a) the two-part termination framework (predicate ground + best interest), (b) the definition and contours of “endangerment,” (c) the principle that one parent’s failure to protect from the other parent’s dangerous conduct can support endangerment, and (d) the command that appellate courts defer to the factfinder even while applying heightened review.
• In re J.F.C., 96 S.W.3d 256 (Tex. 2002): Provides the canonical formulation of legal-sufficiency review in termination cases: view evidence in the light most favorable to the finding, assume disputed facts resolved in favor of the finding if reasonable, disregard evidence that could be disbelieved, but do not disregard undisputed facts that do not support the finding.
• In re J.F.-G., 627 S.W.3d 304 (Tex. 2021): Reinforces that the factfinder is the “sole arbiter” of witness credibility and demeanor—central to the dissent’s complaint that the majority substituted its view for the jury’s.
• In re A.C., 560 S.W.3d 624 (Tex. 2018): Used to connect (i) heightened evidentiary burden, (ii) required appellate deference, and (iii) the child-centered nature of the best-interest inquiry; also cited for the proposition that predicate-ground evidence may be probative of best interest.
• In re Commitment of Stoddard, 619 S.W.3d 665 (Tex. 2020): Cited by analogy to underscore that deference to factfinders matters even with very high burdens of proof (there, beyond a reasonable doubt).

2. Defining “endangerment” and its application

• Tex. Dep't of Hum. Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987): Quoted (via In re J.W.) for the definition of “endanger” and the principle that endangerment requires more than a “less-than-ideal” environment but does not require conduct directed at the child or actual injury.
• In re J.O.A., 283 S.W.3d 336 (Tex. 2009): Supports the proposition that a parent’s narcotics use and its effect on parenting can constitute an endangering course of conduct—important to the dissent’s reliance on Mother’s positive drug test and repeated refusals to test.

3. Best interest framework

• Holley v. Adams, 544 S.W.2d 367 (Tex. 1976): Provides the nonexclusive “Holley factors” that structure the best-interest analysis (desires of the child; needs; danger; parenting abilities; programs; plans; stability; acts/omissions; excuses).
• In re C.H., 89 S.W.3d 17 (Tex. 2002): Cited to rebut any notion that uncertainty about adoptive placement or definitive future plans is dispositive against termination; best interest must be assessed on the “entire record.”
• In re C.A.G., No. 14-18-00930-CV, 2019 WL 1523114 (Tex. App.—Houston [14th Dist.] Apr. 9, 2019, pet. denied): Used as supporting authority that ongoing drug use can support the conclusion that a parent cannot meet a child’s needs now or in the future.

4. Constitutional dimension of parental rights (background context)

• Stanley v. Illinois, 405 U.S. 645 (1972); Meyer v. Nebraska, 262 U.S. 390 (1923); May v. Anderson, 345 U.S. 528 (1953); In re G.M., 596 S.W.2d 846 (Tex. 1980): Cited to emphasize parental rights as “essential,” “precious,” and “fundamental,” while recognizing they are not absolute.
• In re K.M.L., 443 S.W.3d 101 (Tex. 2014) (Lehrmann, J., concurring): Invoked for the familiar characterization of termination as the “‘death penalty’ of civil cases,” reinforcing why heightened proof and careful review matter—yet (for the dissent) without authorizing appellate reweighing of evidence.

B. Legal Reasoning

1. The dissent’s central methodological claim: deference within heightened review

The dissent accepts the majority’s premise that termination requires clear and convincing evidence and that appellate review is heightened accordingly. But it insists the heightened standard is not a license to replace jury factfinding with appellate judgment. Under In re J.F.C. and In re J.W., an appellate court must determine whether a reasonable factfinder could have formed a “firm belief or conviction,” while still assuming the jury resolved credibility and conflicting testimony in favor of its verdict if it reasonably could.

For Justice Lehrmann, the majority’s error is practical and evidentiary: it “disregards considerable evidence supporting the jury’s verdict” and thereby fails to “properly defer” to the jury’s role. Put differently, the dissent sees the case as turning less on doctrinal disagreement and more on who is permitted to draw inferences from disputed evidence—jury or appellate court.

2. Predicate grounds: endangerment under § 161.001(b)(1)(D) and (E)

The dissent focuses on two interlocking pathways to endangerment:

• Failure-to-protect / knowing exposure to Father’s dangerous conduct: Mother knew Father’s behavior endangered the children (and told the investigator she feared escalation to the children). She agreed to a safety plan requiring supervision by someone other than Mother. Yet she allowed Father back into the home and did not report his return; she also refused Department access absent a warrant—culminating in a welfare check that discovered Father present and unsupervised with the children.
• Drug use as endangering conduct: Mother’s refusals to test, followed by a positive test for heroin, methamphetamine, amphetamines, and opiates (and marijuana), is treated as evidence that she was impaired in her ability to protect the children from a known danger, aligning with In re J.O.A..

Importantly, the dissent frames this as a fact-bound assessment: domestic violence victims are not required to act “perfectly in terrible circumstances,” and a different case would be presented if a victim were continuously attempting to leave but faced barriers. But here, the dissent reads the record as showing Mother’s affirmative unwillingness to protect the children from Father even after acknowledging danger, compounded by ongoing substance use.

3. Best interest: applying the Holley factors with a child-centered lens

The dissent argues the evidence supporting endangerment also strongly supports best interest. It emphasizes:

• Holley factor (3)—danger now and in the future: The dissent treats this as decisive. Mother (at trial) minimized or retracted prior safety concerns and stated she would not keep Father away if the children were returned. She equated the trauma of divorce with witnessing Father attempt suicide, signaling (to the jury) a diminished appreciation of risk.
• Holley factor (2)—emotional and physical needs: The children had serious emotional needs, including psychiatric hospitalizations and severe behavioral dysregulation. The dissent credits testimony linking these issues to trauma from domestic violence and suicide attempts and warns that returning children to the same environment risks worsening the trauma.
• Drug use as a best-interest indicator: Refusal to test and positive tests are treated as predictors of future instability and impaired protective capacity.
• Child’s desires are relevant but not dispositive: Although the children loved their parents and expressed a desire to go home, the dissent stresses that a jury may reasonably conclude termination is nonetheless necessary for protection and stability.

4. Responding to the majority’s stated concerns (as framed by the dissent)

Justice Lehrmann identifies three majority concerns (as she summarizes them): insufficient time for Mother to complete services; unclear Department directives about her relationship with Father; and the children’s worsening condition in foster care. The dissent’s responses are:

• Time to complete services: While not dismissing the importance of services, the dissent maintains that the legally relevant question remains child safety and whether the jury could form a firm conviction based on the whole record—particularly Mother’s ongoing choices and stated intentions about Father.
• Directive about divorce: The Department did not need to demand divorce; it needed assurance the children would not be subjected to Father’s abuse. The dissent portrays the Department’s stance as consistent: protect the children from Father, regardless of marital status.
• Foster-care deterioration: The dissent views the children’s struggles as consistent with pre-removal behavior and trauma exposure, supported by counseling testimony; it characterizes the majority’s inference (“whatever was tried did not work”) as an appellate re-interpretation of evidence the jury was entitled to weigh differently.

C. Impact

Because this is a dissent, its “impact” is primarily jurisprudential rather than precedential. Nonetheless, it meaningfully signals how at least three justices would approach recurring termination themes:

• Appellate posture in close evidence cases: The dissent would reinforce a disciplined application of In re J.F.C./In re J.W. that resists reweighing—especially where a jury could rationally infer future danger from a parent’s past violations of safety measures and present intent not to separate children from an abuser.
• Domestic violence and “failure to protect”: The dissent tries to avoid punishing victims for being abused while still recognizing a legal duty not to knowingly re-expose children to a demonstrably dangerous partner—suggesting a line between imperfect efforts to leave and affirmative re-entry into unsafe conditions.
• Substance use as an amplifier of risk: The analysis treats refusal to test and positive tests as not merely a standalone concern but an aggravating factor because it undermines the parent’s ability to protect children from known violent danger.

Practically, if this approach were adopted more broadly, litigants could expect:

• greater emphasis on documenting safety plans, violations, and the parent’s contemporaneous statements about future protection;
• drug-testing refusals and polysubstance positives to be argued as directly connected to protective capacity, not only general parental fitness;
• best-interest disputes to be resolved more often in favor of the verdict when credible evidence supports future-danger inferences.

IV. Complex Concepts Simplified

• “Clear and convincing evidence”: A heightened civil standard requiring proof that produces a “firm belief or conviction,” higher than “more likely than not,” lower than “beyond a reasonable doubt.”
• “Legal sufficiency” review in termination cases: Appellate courts do not decide what they believe happened; they decide whether a reasonable jury could have reached the finding, viewing evidence in favor of the verdict and deferring to credibility calls (In re J.F.C.; In re J.W.).
• Predicate grounds (Texas Family Code § 161.001(b)(1)): Specific statutory categories of parental conduct (e.g., endangerment) that must be proven before rights can be terminated.
• Endangerment (§ 161.001(b)(1)(D) and (E)): Not limited to direct harm to a child; exposing a child to dangerous conditions or people can qualify, even without actual injury. A parent may “endanger” by knowingly allowing the child to remain around someone whose conduct is dangerous.
• Best interest (§ 161.001(b)(2)): A separate, child-focused determination that termination will better protect the child’s safety, stability, and development. Courts commonly use the Holley v. Adams factors as a structured guide.
• Safety plan vs. service plan: A safety plan is an immediate protective arrangement (e.g., no unsupervised contact with a dangerous person). A service plan is a longer-term set of requirements (counseling, housing stability, drug testing) intended to address risks and enable reunification where safe.

V. Conclusion

Justice Lehrmann’s dissent would uphold termination of Mother’s parental rights on the ground that legally sufficient evidence supported the jury’s endangerment and best-interest findings under the clear-and-convincing standard. The dissent’s most significant contribution is its insistence that heightened review still requires strong deference to the jury’s credibility determinations and permissible inferences—particularly where the record shows (1) a parent’s knowing violation of a safety plan that was designed to keep children away from a violent, self-harming parent, (2) stated unwillingness to keep that parent away in the future, and (3) ongoing drug use that undermines protective capacity. In the dissent’s framing, termination is not punishment for being abused; it is a protective response to a demonstrated and likely recurring danger to the children.