Post-Removal Misconduct and Constructive Abandonment as Endangerment Evidence—and the Duty to Reach Alternative Termination Grounds (Justice Bland’s Partial Dissent)

1. Introduction

Case: In the Interest of K.N., K.L., K.L., and K.L., Children, No. 24-0881 (Tex. June 5, 2026).
Posture: Petition for review from the Seventh Court of Appeals; opinion excerpt is a partial dissent by Justice Bland, joined by Justice Lehrmann and Justice Huddle.
Parties and setting: The Department sought termination of both parents’ rights to four children (one is the mother’s eldest, Karen; the other three are shared by Mother and Father). The jury terminated Father’s rights on multiple statutory predicates, including endangerment and constructive abandonment, and found termination was in the children’s best interest (unchallenged by Father).

Central disputes addressed by the dissent: (1) whether the Court properly applied legal-sufficiency review under the clear-and-convincing standard while deferring to the jury’s credibility and inference choices; (2) whether evidence of Father’s conduct—both pre-removal (participation in or tolerance of abuse/neglect) and post-removal (drug-related criminal conduct, failed drug tests, prolonged absence and refusal to engage)—supports endangerment findings under Texas Family Code § 161.001(b)(1)(D) and (E); and (3) whether the Court erred by declining to address constructive abandonment under § 161.001(b)(1)(N) as an alternative ground that could support affirmance and avoid delay.

2. Summary of the Opinion (Partial Dissent)

Justice Bland agrees the evidence supports termination of Mother’s rights, but contends the Court wrongly reverses (or fails to affirm) termination of Father’s rights by:

  • Discounting evidence that Father witnessed and sometimes participated in the abuse of Karen, and failing to treat the home environment as endangering to the other children.
  • Fragmenting (“siloing”) the proof by evaluating each item of Father’s misconduct in isolation rather than as a cumulative course of endangering conduct.
  • Minimizing post-removal conduct (high-speed chase with methamphetamine, unresolved drug testing, refusal to verify prescriptions, refusal to engage in services, and year-long nonvisitation) despite precedents that treat post-removal behavior as probative of endangerment and continuing risk.
  • Declining to reach constructive abandonment as an independent ground for termination—even though, in the dissent’s view, the record contains legally sufficient evidence on each element of § 161.001(b)(1)(N)—thereby prolonging uncertainty for the children.

3. Analysis

3.1 Precedents Cited

The dissent’s argument is built on two clusters of precedent: (A) standards of review and factfinder deference in termination cases; and (B) substantive endangerment/abandonment doctrines and the role of post-removal evidence and judicial economy.

A. Standards of review and deference to the jury

  • In re J.F.C. (legal sufficiency in termination): supplies the core framework—whether a factfinder could form a “firm belief or conviction,” viewing evidence in the light most favorable to the finding and disregarding what a reasonable factfinder could disbelieve. The dissent invokes J.F.C. to argue the Court improperly “disregards considerable evidence supporting the jury’s verdict.”
  • In re J.F.-G. and In re A.C.: reinforce that heightened review does not eliminate deference to the factfinder on credibility and reasonable inferences. The dissent uses these cases to emphasize that appellate courts cannot reweigh disputed testimony (e.g., Father’s explanations for positive drug tests or nonparticipation).
  • In re J.W.: cited for both the constitutional magnitude of parental rights and the mechanics of deference (quoting J.F.C.), but also for the proposition that child safety cannot be sacrificed to preserve parental rights. The dissent criticizes the Court for relying on J.W. to imply post-removal conduct is categorically suspect, noting J.W. expressly declined to foreclose post-removal application of Subsection (D).
  • In re E.C.R. (quoting In re C.H.): frames the constitutional balance—parental rights are vital, but a child’s emotional and physical interests are paramount. The dissent uses this to justify robust consideration of home abuse dynamics and continuing risk.
  • City of Keller v. Wilson: cited for the principle that the jury is the sole judge of witness credibility and the weight to give testimony—supporting the dissent’s view that Father’s self-justifications could be rejected.

B. Substantive endangerment principles, post-removal evidence, and alternative grounds

  • Tex. Dep't of Hum. Servs. v. Boyd: supplies the classic articulation that endangerment can be shown by a “course of conduct” and need not be directed at the child nor result in actual injury. The dissent leans on Boyd to argue the Court improperly demands a one-to-one linkage between a single act and termination, rather than assessing cumulative risk.
  • In re J.O.A.: reaffirmed that endangering conduct is not limited to conduct directed at the child and can include conduct affecting older children; the dissent uses it to support considering abuse in the household (even if directed at a sibling/step-sibling) when assessing endangerment to other children.
  • In re K.N.D.: supports examining a parent’s history with other children to evaluate risks in the environment; used to argue Father’s tolerance/participation in Karen’s abuse is relevant to the shared children’s risk profile.
  • Stanfield v. State: invoked to acknowledge the fact-specific line between lawful corporal punishment and abuse—supporting the dissent’s view that the jury was entitled to find Father’s conduct crossed that line.
  • In re M.C.: establishes that neglect can be as dangerous as direct physical abuse; used to support that untreated dental/vision needs, developmental delays, and failure to enroll children in school can contribute to endangerment.
  • In re C.E.: the Court is criticized for using it to narrow the “relevant timeframe” under (E); the dissent counters that C.E. itself referenced post-removal conduct as probative and imposed no strict time limit.
  • In re R.R.A.: cited for framing the inquiry as whether conduct establishes a substantial risk of harm; used to argue Father’s behavior (drugs, flight, noncompliance, absence) supports the jury’s risk finding.
  • In re A.V.: used for the proposition that continued drug use and failure to comply with services/visitation can support endangerment as part of a continuing pattern of risk.
  • In re D.S., In re B.L.D., and In re K.S.L.: cited for the special importance of finality and avoiding “limbo” in child welfare cases; supports the dissent’s insistence that appellate courts should resolve potentially dispositive grounds rather than remand unnecessarily.
  • FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist. and Nat. Gas Pipeline Co. of Am. v. Pool: general Texas appellate principles favoring rendition and finality when possible; imported here to argue termination appeals should be moved “to the greatest degree of finality.”
  • Valk v. Copper Creek Distribs., Inc.: relied on to argue it is reversible error to remand without considering alternative bases for rendition; the dissent treats this as directly applicable to the Court’s refusal to reach constructive abandonment.
  • In re H.S.: used as a comparator for sufficiency review in termination cases, and (in the dissent’s view) as an example of the Court failing to defer to juries in the termination context.

3.2 Legal Reasoning

Justice Bland’s reasoning proceeds in three steps.

Step 1: Reconstruct the “complete picture” of endangerment

The dissent treats endangerment as a holistic inquiry into whether Father either (i) allowed the children to remain in an endangering environment (Subsection (D)) or (ii) engaged in endangering conduct (Subsection (E)). On that view, evidence that Father witnessed, acquiesced in, or participated in abusive practices against Karen—and failed to protect the other children from exposure to that abuse—supports a finding that the home itself was dangerous and emotionally damaging.

The dissent further treats neglect indicators (unaddressed dental and vision needs, possible developmental delays, failure to enroll in school, and an undiagnosed seizure) as relevant to endangerment, emphasizing In re M.C.’s proposition that neglect can be as dangerous as abuse.

Step 2: Reject a categorical downgrading of post-removal conduct

The dissent challenges the Court’s suggestion that post-removal conduct has limited probative value for (D) and (E). Relying on In re J.W., In re C.E., and endangerment “course of conduct” precedents like Tex. Dep't of Hum. Servs. v. Boyd, the dissent argues that post-removal events can be critical because termination depends on whether returning the child would expose the child to continuing danger.

Against that framework, the dissent treats Father’s post-removal conduct as strongly probative of continuing risk: a high-speed chase, meth possession, felony charges, repeated positive tests for amphetamines without verification, and refusal to provide a clean test. Combined with a year of nonvisitation and refusal to engage in the service plan, the dissent views the post-removal record as corroborating a persistent pattern: impulsivity, substance abuse risk, and unwillingness to take reunification steps.

Step 3: Insist on reaching constructive abandonment to avoid delay

Even if the Court were to disagree on endangerment, the dissent argues it should still address the jury’s constructive abandonment finding under § 161.001(b)(1)(N) as an alternative basis for affirmance. Citing FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., Nat. Gas Pipeline Co. of Am. v. Pool, and especially Valk v. Copper Creek Distribs., Inc., the dissent frames the failure to reach (N) as a finality error that prolongs uncertainty in a context where statutes and rules prioritize speed and permanence.

3.3 Impact

Because this excerpt is a dissent, it does not itself create binding law; its importance lies in how it frames contested issues that may shape future briefing, appellate analysis, and potential doctrinal clarification in Texas termination jurisprudence:

  • Post-removal evidence: The dissent’s synthesis of Tex. Dep't of Hum. Servs. v. Boyd, In re J.O.A., In re C.E., In re A.V., and In re J.W. pushes back on any trend to confine (D)/(E) to pre-removal snapshots, emphasizing that ongoing conduct during the case can reveal continuing danger and unwillingness/inability to safely parent.
  • Household abuse as to “other” children: The dissent underscores that complicity in abusing (or failing to protect) one child can inform the risk to siblings, supporting broader use of household-pattern evidence in (D)/(E) analyses.
  • Appellate obligation to reach alternative grounds: By invoking Valk v. Copper Creek Distribs., Inc. in the termination context, the dissent signals a litigation pathway: parties may increasingly argue that skipping alternative statutory predicates (like constructive abandonment) is reversible error when it causes remand-driven delay.
  • Practical consequence—permanency timing: The dissent spotlights a recurring tension: evidentiary sufficiency rigor vs. the system’s strong preference for finality for children (In re D.S., In re B.L.D., In re K.S.L.). Future cases may more explicitly weigh whether appellate methodology is producing avoidable “limbo.”

4. Complex Concepts Simplified

  • “Clear and convincing evidence”: A higher burden than “preponderance,” requiring proof that would cause a factfinder to form a firm belief or conviction. On appeal, courts still defer to the jury’s reasonable credibility calls and inferences.
  • Endangerment—§ 161.001(b)(1)(D) vs. (E):
    • (D) focuses on the child’s conditions or surroundings (the environment) that endanger physical or emotional well-being.
    • (E) focuses on the parent’s conduct (a course of behavior) that endangers physical or emotional well-being.
    The dissent’s theme is that both can be proved through patterns and context, not isolated incidents.
  • “Post-removal conduct”: Behavior after the children have been removed by court order (e.g., criminal acts, drug use, refusal to test, missed visits, failure to do services). The dissent argues it can still show ongoing risk and an unsafe path to reunification.
  • Constructive abandonment—§ 161.001(b)(1)(N): Termination can be based on a parent’s prolonged lack of visitation/significant contact while the Department has conservatorship, coupled with (i) the Department’s reasonable efforts to return the child, and (ii) the parent’s demonstrated inability to provide a safe environment.
  • “Alternative grounds” and “rendition”: If multiple independent statutory grounds support termination, an appellate court may affirm on any one of them. The dissent argues courts should address alternative bases that could support affirmance rather than remand, to reach finality sooner.

5. Conclusion

Justice Bland’s partial dissent argues that the jury had legally sufficient evidence to terminate Father’s parental rights based on a cumulative pattern: complicity in a home with severe abuse, neglect indicators, post-removal drug-related criminal conduct and unresolved drug testing, and prolonged nonvisitation and refusal to engage in reunification services. The dissent further contends that, even if endangerment were debatable, the Court should have addressed constructive abandonment as an alternative and potentially dispositive basis for affirmance to avoid delaying permanency for the children. In emphasizing deference to the jury, the probative value of post-removal conduct, and the appellate obligation to pursue finality where possible, the dissent presents a comprehensive blueprint for how termination sufficiency review should operate when children’s safety and stability are at stake.