D.V. v. Texas Department of Family and Protective Services, 24-0840, October 31, 2025.
On appeal from Court of Appeals for the Third District of Texas
Synopsis
The Texas Supreme Court held that a trial court may not terminate parental rights when the Department’s designated representative made an unequivocal, unrepudiated statement at trial withdrawing termination as requested relief. Termination in such circumstances is impermissible unless the Department affirmatively repudiates that withdrawal on the record.
Relevance to Family Law
Although a parental-termination decision, this ruling affects family-law practice broadly: it changes how DFPS representations at trial bind relief sought (impacting custody and conservatorship outcomes), imposes new evidentiary and record-creation obligations on DFPS and its counsel, and creates tactical opportunities and risks in divorce, custody, and property litigation when child-protection involvement is present. Practitioners in private family-law cases who litigate custody or contest DFPS-influenced conservatorship outcomes must now treat any on-the-record DFPS concession about relief as potentially dispositive unless clearly repudiated.
Case Summary
Fact Summary
The Department filed a petition to terminate both parents’ rights to E.D. At trial, however, the Department’s designated caseworker twice testified that the Department sought to “limit and restrict” the mother’s rights and not to terminate her parental rights; the caseworker confirmed on cross-examination that the Department was not seeking termination of Mother’s rights. The Department made no opening or closing statements and did not explicitly contradict its caseworker’s testimony. CASA and the attorney ad litem recommended termination. The associate judge terminated Mother’s parental rights and later the district court adopted that ruling. The mother appealed, asserting the Department had abandoned its request for termination at trial; the court of appeals affirmed, but the Texas Supreme Court reversed.
Issues Decided
- Whether an unequivocal, unrepudiated statement by a DFPS representative at trial withdrawing termination as requested relief prevents a court from entering a judgment terminating parental rights.
- Whether the Department’s post-judgment defense of termination can cure or negate an on-the-record withdrawal of termination made by its designated representative at trial.
Rules Applied
The Court applied governing principles specific to parental-termination jurisprudence: termination of parental rights must be pursued and adjudicated with heightened procedural clarity because of the fundamental constitutional rights at stake and the clear-and-convincing-evidence standard required by Texas Family Code termination provisions and Supreme Court precedent (see Santosky v. Kramer for the constitutional gravity of termination). The opinion relied on the procedural doctrines governing abandonment and stipulations in civil litigation (as discussed in lower-court authorities such as In re I.L. and In re J.M.) but held that the ordinary “totality of the circumstances” approach is insufficient by itself in termination cases. The Court emphasized that DFPS representations through its designated representative can bind the relief sought unless the Department unmistakably repudiates those representations on the record.
Application
The Court narrated that, although termination cases often involve many indicators supporting termination (CASA recommendations, admissible evidence of parental unfitness, and testimony), the dispositive legal question here was not the sufficiency of evidence but whether the Department had effectively abandoned termination as relief at trial. Because the Department’s designated representative twice stated at trial that termination was not being sought as to Mother and the Department took no subsequent action to repudiate that statement—no counsel argument asserting that termination was still sought, no additional testimony correcting the record—the trial court lacked a proper basis to terminate parental rights in light of that on-the-record withdrawal. The Court rejected the court of appeals’ emphasis on surrounding context (including CASA and ad litem recommendations and the presence of termination-evidence) as inadequate to overcome an unequivocal, unrepudiated withdrawal by a Department representative. The opinion drew a line between ordinary civil-abandonment doctrines and the heightened procedural protections required in parental-termination litigation, holding that clarity about requested relief is an essential prerequisite to any termination judgment.
Holding
The Supreme Court reversed the judgment terminating Mother’s parental rights. It held, in substance, that an unequivocal and unrepudiated on-the-record withdrawal of termination as requested relief by a DFPS representative precludes the trial court from terminating parental rights on that basis. The Court further held that the Department cannot later defend a termination judgment by asserting that, despite its representative’s statements, it had not abandoned the request for termination—absent an affirmative, contemporaneous repudiation that places the trial court and opposing parties on notice that termination is still sought.
Practical Application
This decision requires immediate adjustments in trial practice when DFPS participates in child-related proceedings. DFPS counsel must ensure their witnesses’ testimony about relief is consistent with counsel’s position or must promptly and explicitly correct the record. Defense counsel (parents) should treat any on-the-record DFPS concession about relief as binding unless reversed on the spot; when a concession occurs, opposing counsel should demand clarification, make contemporaneous requests to reopen testimony, object, or obtain a written stipulation to preserve appellate rights. Judges must recognize the binding consequence of a DFPS designated representative’s statements about relief and should require explicit clarification before entering termination judgments. For family-law attorneys handling custody disputes with overlapping DFPS involvement, the case emphasizes precise record management: statements by agency representatives can tilt conservatorship and visitation outcomes, and counsel should use or counter those statements strategically.
Checklists
Preserve the Record
- If a DFPS representative states the Department is not seeking termination:
- Immediately ask the representative to confirm the statement on the record.
- If DFPS counsel disagrees, require DFPS counsel to state their position on the record immediately.
- Object (parent’s counsel) and ask the court to require clarification; move to strike inconsistent testimony if necessary.
- Request reopening of evidence or additional witnesses if the Department later attempts to assert termination.
For DFPS Counsel (trial-side)
- Before trial, confirm and coordinate precisely which relief the Department will seek.
- If a witness is to state the Department’s recommendation, ensure the witness is instructed and prepared to speak only to the Department’s authorized position.
- If the Department changes position during trial, repudiate earlier statements on the record and, if needed, move to reopen the record.
- Make an opening or closing statement to place the Department’s desired relief plainly before the court.
For Parent/Defense Counsel
- Use an unequivocal DFPS concession to argue against termination; if the trial judge proceeds to terminate despite the concession, preserve error for appeal by obtaining a written finding or clarifying question for the record.
- Cross-check all DFPS pleading language against on-the-record positions; if pleadings still request termination but DFPS statements withdraw it, obtain a written or oral stipulation to the change.
- Prepare post-trial motions arguing termination was unauthorized due to abandonment by DFPS representative.
For Judges and Court Staff
- When presented with termination evidence after an on-the-record DFPS withdrawal of relief, require explicit confirmation from DFPS counsel that termination is sought before entering judgment.
- If any party asserts abandonment of relief, consider an in-chambers inquiry to ensure the court understands the parties’ positions before adjudicating fundamental parental rights.
Preserving Appellate Issues
- If termination occurs despite a DFPS on-the-record withdrawal, include in the appellate record: all trial testimony, any lack of repudiation by DFPS counsel, and any post-judgment explanations. File appropriate petitions and emphasize the procedural requirement for clarity before termination.
Citation
D.V. v. Tex. Dep’t of Fam. & Protective Servs., No. 24-0840, slip op. (Tex. Oct. 31, 2025).
Full Opinion
Full opinion (Supreme Court of Texas, Oct. 31, 2025)
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