Unequivocal Withdrawal of Termination Binds the Court: Commentary on D.V. v. Texas Department of Family and Protective Services

“If the State Is Not Seeking Termination, the Court May Not Terminate”
A Commentary on D.V. v. Texas Department of Family and Protective Services

I. Introduction

The Supreme Court of Texas’s decision in D.V. v. Texas Department of Family and Protective Services (No. 24-0840, opinion delivered Oct. 31, 2025) establishes an important procedural safeguard in parental-rights termination cases. The Court holds that when the Department of Family and Protective Services (DFPS) – through someone speaking on its behalf at trial – unequivocally states that it is not seeking termination of a parent’s rights, a trial court may not enter a termination judgment unless that statement is clearly repudiated.

The ruling sits at the intersection of civil procedure (abandonment of pleaded relief) and the heightened constitutional protections governing termination of parental rights. It reinforces the idea that termination is an extreme, last-resort remedy that must be requested clearly and consistently – and that the State cannot stealthily or accidentally obtain such relief after publicly disavowing it in open court.

This commentary:

  • Outlines the factual and procedural background of the dispute.
  • Summarizes the Supreme Court’s holding and reasoning.
  • Examines the precedents and rules the Court relies on.
  • Analyzes the new rule’s scope, limits, and likely impact on future child-protection litigation.
  • Explains key legal concepts in accessible terms.

II. Background: How the Case Reached the Supreme Court

A. Facts and Underlying DFPS Case

The petitioner, identified as D.V. (“Mother”), has a history of violent behavior and drug use. Following an alleged assault on her ex-boyfriend and one of her other children, DFPS removed E.D., the child in question, and filed a petition seeking termination of the parental rights of both Mother and E.D.’s Father.

By the time of trial:

  • DFPS’s live pleading (its current petition) still requested termination of both Mother’s and Father’s rights.
  • In practice, DFPS had already shifted its position as to Father and wanted him appointed sole managing conservator – effectively giving him full parental authority over E.D.
  • Everyone involved understood that DFPS was no longer actually seeking termination of Father’s rights despite the live pleadings.

The real controversy concerned whether DFPS was still seeking termination of Mother’s rights – and what legal effect attached when DFPS’s own trial representative said it was not.

B. The Trial Before the Associate Judge

The referring district court sent the case to an associate judge for a bench trial conducted via videoconference.

DFPS had designated its caseworker as its representative under Texas Rule of Civil Procedure 267 and Texas Rule of Evidence 614. That representative was, in the Court’s words, the agency’s “face and physical presence” at trial.

On the second day of trial, DFPS’s own counsel elicited the following crucial testimony:

Q. … What is the Department’s recommendation [to] the Court today?

A. The Department is seeking to limit and restrict [Mother]’s rights, and give permanent managing conservatorship of [E.D.] to [Father], and to limit [Mother]’s rights to parent non-conservator with no visitation and contact.

On cross-examination, Mother’s counsel sought clarity:

Q. And [the department] is not seeking to terminate [Mother]’s rights, but to ask the Court to name her as a parent non-conservator?

A. Correct.

No one objected to this testimony. DFPS’s counsel did not attempt to correct, qualify, or retract it. There was no suggestion that the witness was expressing only a personal view rather than the Department’s official litigation position.

Other trial players took different stances:

  • The CASA (Court Appointed Special Advocate) volunteer recommended termination of Mother’s rights and joint managing conservatorship for Father and the paternal grandfather.
  • Mother testified that she:
    • Did not want her rights terminated, and
    • Desired at least visitation, ideally eventual custody.
  • DFPS made no opening statement and no closing argument.
  • Mother’s counsel, in closing, expressly asked the court not to terminate her rights.
  • The child’s attorney ad litem argued DFPS had met its burden “as far as termination” but asked, in the alternative, that Mother be appointed a non-possessory conservator if the court declined to terminate.

Immediately after the child’s attorney ad litem concluded, the associate judge:

  • Announced termination of Mother’s parental rights to E.D., and
  • Appointed Father as sole managing conservator.

A written final judgment reflected this ruling.

C. Post-Trial Proceedings and Appeals

Mother requested a de novo hearing in the referring district court (a statutory right to have the referring court reconsider the associate judge’s ruling). The district court refused. On Mother’s first trip to the court of appeals, that denial was reversed and the case remanded for a de novo hearing. See D.V. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-23-00098-CV, 2023 WL 4494802 (Tex. App.—Austin July 13, 2023, no pet.).

On de novo review, Mother raised multiple arguments against termination. Only one was preserved for higher appellate review:

The associate judge lacked authority to terminate Mother’s constitutionally protected parental rights when the Department affirmatively abandoned its pleading for termination at trial.

The district court adopted the termination ruling. Mother appealed again. The Third Court of Appeals in Austin affirmed. 716 S.W.3d 176 (Tex. App.—Austin 2024).

D. The Court of Appeals’ Approach: “Totality of the Circumstances”

The court of appeals accepted the general premise that parties can abandon pleaded relief by stipulation or in-court concession. It relied on prior intermediate-court cases (In re I.L. and In re J.M.) for the proposition that:

  • Pleadings can be abandoned by “stipulation, such as an agreement or concession made in a judicial proceeding,” and
  • Interpretation of stipulations must consider “the language used and the surrounding circumstances, including the state of the pleadings, the allegations made therein, and the attitudes of the parties toward the issue.”

Applying a “totality of the circumstances” approach, the court of appeals looked at:

  • The CASA recommendation for termination.
  • The child’s attorney ad litem’s argument that DFPS had met its burden to terminate.
  • The fact that evidence was presented that would support termination.
  • Mother’s counsel’s closing argument asking the court not to terminate.
  • The fact that the express abandonment statement came from DFPS’s representative, not from its counsel.

Given that broader “context,” the court of appeals agreed with DFPS that its representative’s statements could not be taken as an actual abandonment of the Department’s request for termination.

Mother sought review in the Supreme Court of Texas, which granted her petition and reversed.

III. Summary of the Supreme Court’s Opinion

Justice Evan A. Young, writing for the Court, bases the decision on the special constitutional status of parental rights and the unique safeguards that apply in termination cases.

The Court’s core holding is captured in two key formulations:

In parental-termination cases, a court may not terminate parental rights in the face of an unequivocal and unrepudiated statement made by someone speaking on the department’s behalf that withdraws termination as a requested form of relief.
We hold that an unequivocal assertion by the department—including its designated representative—that it does not seek termination constitutes withdrawal of a request for that relief unless clearly repudiated.

Applying that rule, the Court concludes:

  • DFPS’s representative, in response to questioning by DFPS’s own counsel and then on cross-examination, unequivocally stated that the Department was not seeking termination of Mother’s rights and instead sought only to limit and restrict her rights, with Father as permanent sole managing conservator.
  • DFPS’s counsel did nothing to contradict or correct that statement – not on redirect, not later in trial, and not via closing argument.
  • Other evidence or argument (CASA’s recommendation, the child’s attorney ad litem’s argument, evidence that could support termination, or Mother’s plea not to terminate) could not override DFPS’s explicit withdrawal.
  • Under these circumstances, DFPS had abandoned its request for termination, and Rule 301 forbids entry of a termination judgment on an abandoned claim.

The Court:

  • Reverses the judgment of the court of appeals.
  • Reverses the portion of the trial court’s judgment terminating Mother’s parental rights.
  • Renders judgment appointing Mother as a parent non-conservator (or parent non-possessory conservator), which is the relief Mother sought in this Court and matches the position DFPS’s representative articulated at trial.
  • Remands the case for the district court to enter a consistent judgment and resolve any remaining issues.

The Court explicitly reserves, for another day, more detailed elaboration of abandonment standards in “typical” civil cases. It holds only that, whatever may be true in ordinary litigation, in parental termination cases an unequivocal disavowal of termination by DFPS (or its representative) withdraws that remedy unless promptly and clearly repudiated.

IV. Detailed Legal Analysis

A. The Unique Status of Parental-Termination Proceedings

A major theme of the opinion is that parental-termination cases are not just another subset of civil litigation. The Court recites and reinforces a long line of cases emphasizing that the parent–child relationship:

  • Embodies a natural right “of constitutional dimensions.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976).
  • Is “far more precious than any property right.” In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) (quoting Santosky v. Kramer, 455 U.S. 745, 758 (1982)).
  • Is surrounded by a strong presumption that a child’s best interest is usually served by keeping custody in natural parents. Wiley; Legate v. Legate, 28 S.W. 281, 282 (Tex. 1894).

To protect this relationship, Texas law and federal due process require:

  • A “clear and convincing” evidence standard for termination. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); Tex. Fam. Code § 161.001(b).
  • Appointed counsel for indigent parents in termination suits filed by a governmental entity. Tex. Fam. Code § 107.013(a).
  • An elevated standard of appellate review, including stringent legal- and factual-sufficiency reviews. See In re N.G., 577 S.W.3d 230, 235 (Tex. 2019).
  • Other procedural safeguards, such as clearer notice of mandatory requirements in service plans. See In re A.L.R., 646 S.W.3d 833, 838 (Tex. 2022).

The Court also underscores a long-standing principle from Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967): “Technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children.”

Taken together, these authorities justify treating termination cases differently from “routine” civil litigation when applying procedural doctrines like abandonment and stipulations. The Court makes two crucial points:

  1. If a claim would be considered abandoned in a “materially indistinguishable” ordinary civil case, it must also be treated as abandoned in a termination case.
  2. The converse is not necessarily true: there may be situations in parental-termination proceedings where the law will treat a claim as abandoned or restricted even though ordinary civil law might not. In other words, the parent’s rights may justify extra protection against procedural ambiguity.

B. Abandonment of Claims and Stipulations Under Texas Procedure

The Court situates its analysis within Texas procedural law on abandonment of claims:

  • Texas Rule of Civil Procedure 301:
    • A judgment must “conform to the pleadings, the nature of the case proved and the verdict, if any.”
    • In practice, this means a court cannot grant relief that has not been pleaded or that has been abandoned.
  • Texas Rule of Civil Procedure 165:
    • Expressly contemplates abandonment: “A party who abandons any part of his claim or defense, as contained in the pleadings, may have that fact entered of record, so as to show that the matters therein were not tried.”
  • Stipulations limiting issues:
    • In Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 887 (Tex. 2019), the Court held that when parties stipulate only certain questions will be tried, “all others are thereby waived.”
    • By analogy, if DFPS stipulates that it is no longer seeking a particular form of relief (like termination), the court cannot enter judgment granting that relief.
  • Termination-specific precedent:
    • In In re Shaw, 966 S.W.2d 174, 177 (Tex. App.—El Paso 1998, no pet.), the court of appeals held that a trial court may not order termination when DFPS has stipulated that it is not seeking that remedy.
    • The Supreme Court explicitly “agrees” with Shaw on this point and extends that logic to this case.

The unresolved, broader procedural question is how precisely abandonment should be determined in typical civil cases, especially when a party’s words and conduct are in tension. The Court acknowledges that neither the parties nor the lower court cited controlling Supreme Court authority on that general issue and expressly reserves it for a future case.

Instead, the Court carves out a narrower – but powerful – rule tailored to parental-termination proceedings.

C. The Key Question: Did DFPS Unequivocally Abandon Termination?

Once it is accepted that abandoned claims cannot support a judgment, the central inquiry becomes: Did DFPS unequivocally and unambiguously withdraw its request for termination of Mother’s rights?

The Supreme Court answers “yes” for several reasons:

  1. The representative’s words were clear and categorical.
    • The DFPS representative, in direct response to DFPS counsel’s question, stated:
      The Department is seeking to limit and restrict [Mother]’s rights, and give permanent managing conservatorship of [E.D.] to [Father], and to limit [Mother]’s rights to parent non-conservator with no visitation and contact.
    • On cross-examination, she confirmed:
      [The department] is not seeking to terminate [Mother]’s rights …? – Correct.
    • The Court characterizes this as bearing “only one meaning.” There is no linguistic ambiguity.
  2. DFPS’s counsel elicited the statement and failed to correct it.
    • This was not an offhand remark on cross-examination alone. DFPS’s own attorney asked the representative to state the Department’s recommendation.
    • Upon hearing the answer, DFPS counsel did not:
      • Clarify that the Department still sought termination;
      • Re-examine the witness to correct any alleged misstatement;
      • Make an oral statement to the court reasserting the termination request; or
      • Use closing argument to emphasize that termination remained the Department’s goal.
    • The Court underscores that if there was any “error” in the representative’s statement, the need for “rapid correction” was “indispensable” in light of the stakes. No such correction occurred.
  3. The representative, as the designated DFPS representative, was authorized to speak for the Department in this setting.
    • Under Rules 267 and 614, a non-natural party like DFPS may designate a representative to remain in the courtroom despite witness-exclusion rules and serve as the agency’s “face and physical presence.”
    • The Court notes that in In re N.H., No. 02-22-00157-CV, 2022 WL 4374638 (Tex. App.—Fort Worth Sept. 22, 2022, no pet.), a private provider acting on behalf of DFPS effectively served as the Department’s “agent” and could confirm that termination was not being sought as to one child.
    • This case is “even clearer,” because the representative was formally designated by DFPS itself.

From these points, the Court concludes that DFPS unequivocally abandoned termination as a form of relief – unless something in the “surrounding circumstances” could plausibly negate that clear expression. The remainder of the opinion explains why nothing in the record does so.

D. Rejection of the Court of Appeals’ “Context” Arguments

The court of appeals, and DFPS on review, relied heavily on “context” to argue the representative’s abandonment should not be taken at face value. The Supreme Court addresses each contextual argument and rejects it.

1. CASA’s Recommendation and the Child’s Attorney Ad Litem’s Position

The court of appeals highlighted that:

  • CASA recommended termination of Mother’s rights, and
  • The child’s attorney ad litem contended that “the Department has met its burden as far as termination.”

The Supreme Court finds this irrelevant to whether DFPS itself was seeking termination:

  • Different roles, different litigants: CASA and the child’s attorney ad litem are not DFPS. They may recommend termination or argue for it, but their positions do not define what relief the Department, as plaintiff, is asking the court to grant.
  • The question is what DFPS was seeking, not whether other participants believed termination might be appropriate or legally supportable.
  • Father’s live pleading, importantly, did not request termination of Mother’s rights either, so DFPS was the only party positioned to seek that remedy.

2. Evidence Supporting Termination

The court of appeals reasoned that presenting evidence to support termination was “inconsistent with abandoning the request for termination.”

The Supreme Court responds in two steps:

  1. The evidence also supported lesser forms of relief.
    • The same evidence of Mother’s conduct that would support termination (violence, drug use, instability) could also support the lesser relief the representative said DFPS was seeking: appointment of Father as sole managing conservator and severe limitation or elimination of Mother’s access.
    • Thus, presenting such evidence did not inherently contradict the Department’s disavowal of termination.
  2. Even if some inconsistency existed, it cannot override explicit, unequivocal statements.
    • The Court emphasizes that given “the important interests at stake,” ambiguous conduct or arguably inconsistent evidence presentation cannot trump a clear verbal withdrawal of termination.
    • In termination cases, courts must err on the side of honoring clear limitations on the relief the State intends to seek.

3. Mother’s Closing Request Not to Terminate

DFPS argued that Mother’s counsel’s closing argument – explicitly asking the court not to terminate her rights – made little sense if everyone understood termination was no longer on the table.

The Supreme Court sees no contradiction:

  • Mother’s counsel might well have relied, at least in part, on the legal position that termination was not available once DFPS had abandoned it.
  • Lawyers regularly argue for relief “even if” the court disagrees with their legal theory – here, even if the court concluded termination remained legally available, it should not exercise that power.
  • The Court finds it “bizarre” to suggest that by urging the court not to terminate, Mother’s counsel somehow revived termination as a permissible remedy when DFPS itself had not reasserted it.

4. The Fact That the Statement Came from DFPS’s Representative, Not Its Counsel

Another argument was that abandonment must come from counsel, not from a lay representative, so a witness’s testimony cannot bind DFPS in the same way.

The Court responds:

  • There is no rule that only counsel can abandon a claim; in In re N.H., a private provider effectively communicated DFPS’s decision not to pursue termination as to a particular child.
  • Here, DFPS’s representative was formally designated and testified specifically about the Department’s recommendation – not her personal opinion.
  • Even if participation by counsel were required to effect abandonment, that requirement was satisfied:
    • Counsel elicited the testimony about DFPS’s position.
    • Counsel then did not repudiate, correct, or qualify it.

The Court carefully cabins its holding:

  • It expressly does not decide when or whether a designated representative can “bind” DFPS or other agencies in other contexts (for example, contract or regulatory litigation).
  • The analysis is confined to parental-termination cases, where “presumptions have always disfavored termination.”
  • In that setting, if the Department’s actual position differs from an unequivocal statement by its representative, “counsel must alert the court and the parent to the real position to avoid being bound.”

5. The Continued Existence of Pleadings Requesting Termination

Finally, DFPS argued that its live pleading still asked for termination, so any in-court testimony could not supersede the written petition.

The Supreme Court rejects this view for two reasons:

  1. Pleadings are what is abandoned; they do not prevent abandonment.
    • Rule 165 presupposes that pleadings assert claims, which may later be “abandoned” by action or stipulation.
    • Without a pleading seeking termination, there would be nothing to abandon; the live petition’s existence is a prerequisite, not a shield.
  2. The same live pleading also requested termination of Father’s rights.
    • No one believed that DFPS was actually seeking to terminate Father’s rights at trial; indeed, DFPS strongly advocated that he be given full authority as sole managing conservator of E.D.
    • This demonstrates that the pleadings did not accurately represent DFPS’s trial position as to either parent.
    • If DFPS can effectively abandon a termination request as to Father despite the live pleading, there is “no huge leap” to recognizing its abandonment as to Mother once its representative expressly disavowed termination.

The Court also discusses the function of pleadings in termination cases:

  • They provide parents with notice of the “grave results” that may follow – including the possible permanent severance of the parent–child relationship.
  • They trigger important protections, such as the right to counsel under Family Code § 107.013(a).
  • But when termination is no longer appropriate, “we must expect the department to acknowledge as much.”
  • Because termination is “always the last resort,” DFPS should be prepared, in appropriate cases, to abandon that remedy rather than clinging to it in pleadings while acting differently at trial.

E. The New Rule: What Counts as Abandonment and What Counts as Repudiation?

The Court crystallizes its holding as follows:

We hold that an unequivocal assertion by the department—including its designated representative—that it does not seek termination constitutes withdrawal of a request for that relief unless clearly repudiated.

Several features of this rule merit emphasis:

  • “Unequivocal” and “unambiguous” are key qualifiers.
    • The statement must not be hedged, conditional, or vague.
    • A clear “we are not seeking termination” is controlling; less definitive statements may be litigated in future cases.
  • “Unless clearly repudiated” leaves some flexibility.
    • The Court does not define exhaustively what constitutes adequate repudiation.
    • It suggests that, at a minimum, DFPS counsel should move swiftly – on redirect, via oral clarification to the court, or in closing – to correct any misstatement.
    • Because DFPS did “no effort at correction” in this case, the Court does not need to decide the precise threshold or timing for adequate repudiation.
  • Repudiation must be clear both to the court and to the parent.
    • Given due-process concerns and the importance of clear notice to the parent, any repudiation must be unmistakable.
    • Vague hints or implicit shifts in argument are unlikely to suffice.

The Court uses vivid language to underscore the seriousness of the error here:

If the State of Texas intends to eliminate parental rights through judicial process, a statement asserting the contrary should be a blaring klaxon alerting the department to the need for instant correction.

That metaphor is likely to be cited frequently in future termination appeals.

V. Precedents and Authorities Cited

The opinion draws upon, and builds on, several key cases and statutes. The most significant are highlighted below.

A. Constitutional and Substantive-Termination Cases

  • Legate v. Legate, 28 S.W. 281 (Tex. 1894)
    • One of the earliest Texas cases recognizing a presumption that a child’s best interest is served by remaining with the parents.
    • Cited to note that for more than a century, Texas has presumed in favor of parental custody.
  • Leithold v. Plass, 413 S.W.2d 698 (Tex. 1967)
    • States that “technical rules of practice and pleadings are of little importance” in child-custody matters.
    • Invoked here to emphasize that traditional procedural doctrines must be applied with special care in custody and termination cases.
  • Wiley v. Spratlan, 543 S.W.2d 349 (Tex. 1976)
    • Describes termination as an action that “permanently sunders” parent–child ties and should be “strictly scrutinized.”
    • Affirms a strong presumption in favor of the natural parents.
  • Santosky v. Kramer, 455 U.S. 745 (1982)
    • U.S. Supreme Court case holding that due process requires at least “clear and convincing” evidence to terminate parental rights.
    • Quoted via In re E.R. for the proposition that termination encumbers a value “far more precious than any property right.”
  • Holick v. Smith, 685 S.W.2d 18 (Tex. 1985)
    • Confirms that Texas law, consistent with Santosky, applies a clear-and-convincing standard in termination cases.
    • Referenced as part of the broader framework of heightened protections.
  • In re E.R., 385 S.W.3d 552 (Tex. 2012)
    • Reiterates the constitutional importance of parental rights and the requirement of clear and convincing evidence.
    • Connects Texas law with federal due-process principles.
  • In re N.G., 577 S.W.3d 230 (Tex. 2019)
    • Emphasizes the elevated standard of appellate review in termination cases, including the need to address certain grounds (like endangerment) specifically.
    • Illustrates that appellate courts must engage with termination findings more rigorously than with typical civil fact findings.
  • In re A.L.R., 646 S.W.3d 833 (Tex. 2022)
    • Holds that a service plan that labels court-ordered requirements as “requested tasks” does not adequately inform a parent of mandatory conditions for reunification and thus cannot support termination.
    • Cited here to reinforce the idea that parents must receive clear notice about what is required to avoid termination, and by extension, clarity about whether termination is even being sought.

B. Procedural and Stipulation Cases

  • Texas Rules of Civil Procedure 301 and 165
    • Rule 301: Judgment must conform to pleadings and issues tried.
    • Rule 165: Expressly acknowledges claim abandonment and directs that it be noted of record to show the omitted matters were “not tried.”
  • Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882 (Tex. 2019)
    • When parties stipulate that only certain questions will be tried, all others are waived.
    • Used to analogize that DFPS’s narrowing of requested relief to non-termination relief effectively waives its broader request for termination in that trial.
  • In re Shaw, 966 S.W.2d 174 (Tex. App.—El Paso 1998, no pet.)
    • Termination is improper when DFPS has stipulated that it is not seeking termination.
    • The Supreme Court expressly endorses this principle.
  • In re N.H., No. 02-22-00157-CV, 2022 WL 4374638 (Tex. App.—Fort Worth Sept. 22, 2022, no pet.)
    • Private provider working with DFPS testified that the Department was not pursuing termination as to one child, and the court treated the provider as effectively communicating DFPS’s position.
    • The Supreme Court considers N.H. support for the notion that persons other than DFPS’s attorney can, in context, communicate and limit the agency’s requested relief.
  • In re I.L., 580 S.W.3d 227 (Tex. App.—San Antonio 2019, pet. dism’d); In re J.M., 352 S.W.3d 824 (Tex. App.—San Antonio 2011, no pet.)
    • Intermediate appellate decisions discussing when stipulations or concessions constitute abandonment of issues.
    • Relied on by the court of appeals for a “totality of the circumstances” standard, but not directly overruled by the Supreme Court; instead, the Court holds that even if that standard is proper generally, it is “inadequate” or incomplete for parental-termination cases.
  • Texas Rule of Civil Procedure 267; Texas Rule of Evidence 614
    • Governs designation of a party representative who may remain in the courtroom despite witness-exclusion rules.
    • Supports the Court’s view that DFPS’s designated representative stands in a special relationship to the agency in trial – “its face and physical presence.”
  • Texas Family Code § 161.001(b), § 107.013(a)
    • § 161.001(b): Statutory codification of the clear-and-convincing standard and the grounds/best-interest requirements for termination.
    • § 107.013(a): Provides for appointment of counsel for indigent parents in termination suits filed by the State.

VI. Impact and Implications

A. For DFPS and Governmental Petitioners

The decision sends a clear message to DFPS (and, by extension, any governmental petitioner in termination cases):

  • Clarity and consistency are mandatory.
    • DFPS cannot maintain a formal prayer for termination in its pleadings while allowing its trial representative to tell the court that it is not seeking termination – and then still obtain a termination judgment.
  • Trial preparation must include careful alignment of litigation posture.
    • DFPS attorneys must ensure that their designated representatives:
      • Understand the Department’s current position as to each parent and each child.
      • Answer clearly and accurately when asked for “the Department’s recommendation.”
    • If DFPS intends to continue seeking termination, its witnesses should not say otherwise.
  • Swift correction is required for any misstatement.
    • The Court’s “blaring klaxon” metaphor emphasizes the urgency of correcting an erroneous disavowal of termination.
    • Failure to do so risks binding DFPS to the narrowed request and forfeiting termination as a remedy in that case.
  • Substantive flexibility remains: DFPS may and should abandon termination when appropriate.
    • The Court does not criticize DFPS for walking away from termination; it suggests that this can be a sign of appropriate restraint, recognizing that termination is a “last resort.”
    • But once DFPS does so unequivocally, it must accept the procedural consequence: the trial court cannot terminate based on DFPS’s earlier pleadings or on other participants’ recommendations.

B. For Trial Courts

The ruling imposes a clear limitation on trial courts in child-protection cases:

  • When DFPS – through counsel or a representative – plainly states that it is not asking for termination, the court:
    • Must not enter a termination judgment absent clear and timely repudiation of that statement by DFPS.
    • Should clarify on the record if there is any doubt as to DFPS’s requested relief; for example, by directly asking DFPS’s attorney to confirm the Department’s position before ruling.
  • This reinforces the core idea that courts may not act as roving commissions of child welfare, imposing termination sua sponte; they are constrained by what relief the State (and other parties) properly seek and maintain at trial.

C. For Parents’ Counsel and Child Advocates

For attorneys representing parents, children, and other parties, the decision creates both opportunities and responsibilities:

  • Parents’ counsel:
    • Should be alert to any in-court statements by DFPS that narrow or abandon termination, and promptly preserve these issues in post-trial motions or on de novo review/appeal.
    • May structure trial strategy differently if DFPS is no longer seeking termination – for instance, focusing on the contours of conservatorship and access rather than defending against complete severance.
  • Child’s attorneys and CASAs:
    • Should understand that their recommendations do not, by themselves, authorize termination in the absence of a live termination request from a party with standing and pleadings to seek it.
    • If they believe termination is necessary for the child’s best interest, they may need to consider whether and how to seek that relief independently if DFPS declines to do so (subject to statutory and procedural limits).

D. Broader Jurisprudential Significance

More broadly, D.V. contributes to an ongoing trend in Texas jurisprudence:

  • Elevating procedural safeguards in termination cases, especially where ambiguity or technical ambiguities might otherwise prejudice parental rights.
  • Emphasizing actual, on-the-record positions over formalistic reliance on pleadings that no longer reflect reality.
  • Clarifying that:
    • Termination is not merely a discretionary remedy that courts may deploy whenever the evidence permits; it must be specifically sought and maintained at trial by the party with the burden.
    • Once the State signals that it will not pursue termination, courts cannot treat termination as an available tool unless the State affirmatively reopens that door.

In the longer term, we can expect:

  • Appeals invoking D.V. whenever DFPS or similar petitioners equivocate about termination at trial.
  • Trial records that more carefully memorialize the precise forms of relief that remain live at various stages of the proceedings.
  • Potential legislative or rule-based clarifications about abandonment and stipulations in termination suits, though the Court’s opinion already provides a strong common-law framework.

VII. Complex Concepts Simplified

Several legal terms and doctrines play a central role in this opinion. The following brief explanations are intended for non-specialists or practitioners in adjacent fields.

1. Termination of Parental Rights

“Termination” is the legal process by which a court permanently ends the legal relationship between a parent and a child. It generally means:

  • The parent loses the right to custody, visitation, and decision-making.
  • The parent loses legal obligations to support the child (though some financial obligations may linger in particular contexts).
  • The child becomes legally free for adoption, if other requirements are met.

Because termination is so drastic and permanent, it is considered a “last resort” and is subject to heightened constitutional and statutory safeguards.

2. Managing Conservator, Possessory Conservator, and “Parent Non-Conservator”

Texas uses the terminology of “conservatorship” rather than “custody”:

  • Managing Conservator:
    • The person (or persons) who has primary decision-making authority for the child (medical, educational, psychological, etc.).
    • A “sole managing conservator” has this authority alone; in “joint managing conservatorship,” the powers are shared.
  • Possessory Conservator:
    • A parent who has rights of possession and access (visitation), but usually less decision-making authority.
  • Parent Non-Conservator / Non-Possessory Conservator (as used in the opinion):
    • Refers to a parent who retains the legal status of “parent” but is not appointed as a conservator with possessory rights or decision-making authority.
    • This can include arrangements in which the parent has no court-ordered visitation or contact, yet formal legal parentage (and some residual rights) are not fully terminated.

3. CASA (Court Appointed Special Advocate)

A CASA volunteer is a trained, court-appointed volunteer who:

  • Investigates the circumstances of the child’s living situation.
  • Advocates for the child’s best interests in court.
  • Provides recommendations, but is not a party and does not control what relief the State seeks.

4. Attorney Ad Litem

An attorney ad litem in child-protection cases:

  • Is a lawyer appointed to represent the child’s legal interests.
  • Advocates according to the child’s expressed wishes (if the child is capable of directing representation) or best interests, depending on statutory duties and appointment orders.
  • Again, can recommend or argue for termination, but cannot unilaterally impose it where no party is seeking that remedy.

5. Clear and Convincing Evidence

“Clear and convincing evidence” is a standard of proof higher than “preponderance of the evidence” (more likely than not) but lower than “beyond a reasonable doubt” (the criminal standard). It requires:

  • Proof that produces a firm belief or conviction in the mind of the factfinder about the truth of the allegations.

In termination cases, the State must prove both a statutory ground for termination (e.g., abuse, neglect, endangerment) and that termination is in the child’s best interest by clear and convincing evidence.

6. Abandonment of Pleadings / Stipulations

In civil procedure, “abandonment” means that a party no longer pursues a claim or defense set out in its pleadings. This can happen:

  • Formally, through an amended pleading that omits the claim or through an express statement on the record that the claim is withdrawn.
  • By stipulation or concession, where parties agree at trial that certain issues will not be tried or certain relief is no longer sought.

After abandonment:

  • The court cannot grant judgment on that abandoned claim.
  • The issues actually being tried are narrowed, simplifying the case and focusing on the truly contested matters.

7. De Novo Hearing from Associate Judge to Referring Court

In Texas child-protection cases, associate judges often conduct initial bench trials. Parties may then have a statutory right to a de novo hearing before the referring district court, which:

  • Revisits the associate judge’s decision with fresh consideration of the issues (subject to certain limits on evidence and scope).
  • Is designed as an additional safeguard in high-stakes, family-law disputes.

In D.V., Mother initially had to go to the court of appeals simply to enforce that right to a de novo hearing, before the present substantive issue of abandonment reached the Supreme Court.

VIII. Conclusion: Key Takeaways from D.V. v. DFPS

The Supreme Court of Texas’s decision in D.V. v. Texas Department of Family and Protective Services establishes a focused but powerful rule tailored to the gravity of parental-termination proceedings:

  • When DFPS (or its designated representative), in open court, unequivocally states that it is not seeking termination of a parent’s rights, that statement withdraws termination as a requested remedy.
  • Unless DFPS promptly and clearly repudiates that statement on the record, the trial court may not enter a termination judgment based on abandoned pleadings or contextual inferences.
  • Other participants’ recommendations (CASA, child’s attorney ad litem) and evidence that could support termination cannot override the Department’s clear disavowal.
  • In termination cases, the need for heightened due-process protections and the constitutional status of parental rights require courts to honor explicit narrowing of the State’s requested relief, rather than salvaging termination through a “totality of the circumstances” gloss.

The decision does not rewrite civil-procedure law wholesale; instead, it sharpens how abandonment and stipulations operate specifically in the context of parental termination. It stands in continuity with earlier cases emphasizing:

  • The near-constitutional sanctity of the parent–child relationship.
  • The clear-and-convincing standard and heightened appellate review.
  • The requirement of clear notice to parents regarding what is at stake.

At a practical level, D.V. will require DFPS and other governmental petitioners to align their pleadings, trial testimony, and argument more carefully. It gives parents and their counsel a concrete doctrinal tool to challenge termination judgments when the State has, in substance, stepped back from seeking that drastic remedy. And it underscores, once again, that in Texas law, terminating parental rights is not just another civil remedy but a uniquely grave state action subject to uniquely stringent safeguards.

Case Details

Year: 2025
Court: Supreme Court of Texas

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