Unchallenged Section 161.001(b)(1)(N) Abandonment Supports Termination | In re J.J. III (2026)

In the Interest of J.J. III and D.R.L.J., Children, 04-26-00022-CV, June 03, 2026.

On appeal from 131st Judicial District Court, Bexar County, Texas

Synopsis

The Fourth Court of Appeals held that an unchallenged predicate finding under Texas Family Code section 161.001(b)(1)(N) independently supports affirmance of a termination order so long as the best-interest finding is also upheld. Because Father did not attack the subsection (N) constructive-abandonment finding on appeal, the court accepted that finding as valid and affirmed without needing to decide the sufficiency challenges directed at subsections (D) and (E).

Relevance to Family Law

For Texas family-law litigators, this opinion is a reminder that issue selection on appeal can be outcome-determinative, not merely strategic. In termination litigation arising alongside SAPCR, conservatorship, or divorce-related parenting disputes, the case underscores a broader appellate principle: when multiple independent grounds support a judgment, failure to challenge each dispositive ground can forfeit meaningful appellate review. Although this opinion arises from a DFPS termination case, its practical lesson applies across family-law appeals involving conservatorship restrictions, family-violence findings, supervised possession, and other rulings supported by alternative bases.

Case Summary

Fact Summary

The Department filed its termination petition in April 2024 and was appointed temporary sole managing conservator of the children. Father signed a family service plan that was incorporated into a court order, and the case proceeded to a multi-day bench trial over several months in 2025.

The trial court terminated Father’s parental rights after finding clear and convincing evidence under Texas Family Code section 161.001(b)(1)(D), (E), and (N), and further finding termination was in the children’s best interest under section 161.001(b)(2). The opinion reflects evidence of parental drug use, including the newborn’s positive test for cocaine and marijuana at birth, Mother’s drug use during pregnancy, Father’s admission that he and Mother were using cocaine around the time of the child’s birth, Father’s missed drug tests, positive tests for cocaine and marijuana, and refusal or delay in submitting to additional testing.

The record also included evidence of domestic violence. Father had been arrested for assaulting Mother while she was pregnant, and Mother reported that Father had choked her. The Department also presented evidence that a loaded gun magazine was found under a child’s car seat in Father’s vehicle. The court additionally noted Father’s history with prior CPS cases involving similar allegations and prior court-ordered services.

On appeal, however, Father challenged only the sufficiency of the evidence supporting the subsection (D) and (E) endangerment findings and the best-interest finding. He did not challenge the subsection (N) constructive-abandonment finding.

Issues Decided

• Whether an unchallenged predicate termination finding under Texas Family Code section 161.001(b)(1)(N) must be accepted as valid on appeal.
• Whether one valid, unchallenged predicate ground under section 161.001(b)(1), together with a best-interest finding under section 161.001(b)(2), is sufficient to affirm a termination order.
• Whether the appellate court needed to review Father’s challenges to the subsection (D) and (E) findings once subsection (N) remained unchallenged.

Rules Applied

The court relied on the familiar two-part termination framework under Texas Family Code section 161.001(b): the Department must prove by clear and convincing evidence at least one predicate ground under subsection (b)(1) and that termination is in the child’s best interest under subsection (b)(2). The opinion also reiterated the legal- and factual-sufficiency standards from In re J.F.C., 96 S.W.3d 256 (Tex. 2002), including the requirement that reviewing courts determine whether a reasonable factfinder could form a firm belief or conviction as to the truth of the allegations.

Most significantly, the court applied the settled rule that when a parent fails to challenge an independent predicate ground supporting termination, the appellate court may accept that unchallenged ground as valid and affirm on that basis without reaching other challenged predicate grounds. The court cited its own prior decision in In re A.A.T., No. 04-21-00270-CV, 2021 WL 6127926, at *1 (Tex. App.—San Antonio Dec. 29, 2021, no pet.) (mem. op.), for that proposition.

The opinion also discussed substantive endangerment standards under subsections (D) and (E), citing authorities such as In re M.C., 917 S.W.2d 268 (Tex. 1996), Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987), and In re J.O.A., 283 S.W.3d 336 (Tex. 2009), although those standards ultimately did not drive the disposition once subsection (N) remained unchallenged.

Application

The court’s analysis was straightforward and strategically important. Father’s appellate briefing attacked the evidentiary sufficiency of the subsection (D) and (E) findings and the best-interest finding, but he left subsection (N) untouched. That omission mattered because subsection (N) was an independent predicate ground for termination. Once the court identified that Father had not challenged the constructive-abandonment finding, it treated that finding as established for appellate purposes.

From there, the court did not need to undertake a full sufficiency review of the challenged predicate grounds to determine whether termination could stand. Instead, it invoked the rule that one valid predicate ground plus a best-interest finding is enough to support termination. In practical terms, Father’s failure to brief subsection (N) sharply narrowed the appeal and deprived him of any chance to obtain reversal based solely on alleged defects in the subsection (D) and (E) findings.

The opinion nevertheless recited evidence relevant to endangerment, including drug use, missed testing, domestic violence, and Father’s prior CPS history. That discussion reinforces that the record likely contained multiple routes to affirmance. But the controlling appellate point was procedural and structural: because subsection (N) remained unchallenged, the court could affirm without resolving whether the evidence also supported subsections (D) and (E).

Holding

The court held that Father’s failure to challenge the trial court’s finding under Texas Family Code section 161.001(b)(1)(N) required the appellate court to accept that constructive-abandonment finding as valid. Because subsection (N) is an independent predicate ground for termination, the unchallenged finding could support affirmance if the best-interest requirement was also satisfied.

The court further held that it was unnecessary to review Father’s challenges to the subsection (D) and (E) findings once subsection (N) remained unchallenged. In other words, an appellate court may affirm a termination judgment on the basis of one valid, unchallenged predicate ground without reaching sufficiency complaints directed at alternative predicate grounds.

The court therefore affirmed the termination order.

Practical Application

For appellate counsel representing parents, the lesson is immediate: do not assume that challenging the most stigmatizing grounds alone is enough to preserve a meaningful path to reversal. If the decree contains multiple predicate findings, every independent ground capable of sustaining the judgment must be evaluated for attack. A brief that omits one dispositive predicate ground may effectively concede affirmance unless the appellant also prevails on best interest.

For counsel representing the Department, an amicus, or a child advocate, this case is a useful authority for narrowing the appeal. When an appellant leaves one predicate finding unchallenged, appellee briefing should lead with that waiver point and frame it as dispositive. Doing so can avoid unnecessary merits litigation over additional grounds.

The decision also has practical value at the trial level. Family-law litigators handling termination trials should continue to develop multiple predicate theories where supported by the record. Alternative findings matter. On appeal, they can insulate the judgment from reversal if one or more grounds go unchallenged or survive review.

Outside the termination context, the opinion is a useful analog for family-law appeals more generally. In divorce and SAPCR cases, trial courts often base rulings on overlapping but independent theories—family violence, best interest, material and substantial change, voluntary relinquishment, or waiver. Appellate lawyers should approach those records with the same discipline: identify every independent basis supporting the ruling and challenge each one necessary to secure reversal.

Checklists

Preserving a Parent’s Appeal in a Termination Case

• Obtain and dissect the termination decree immediately after signing.
• Identify every predicate ground found under Texas Family Code section 161.001(b)(1).
• Determine whether any predicate ground is independently sufficient to support affirmance.
• Challenge each dispositive predicate ground that could sustain the judgment.
• Separately challenge the best-interest finding under section 161.001(b)(2).
• Confirm that the statement of issues matches the argument section and covers all necessary grounds.
• Avoid assuming that success on subsections (D) or (E) matters if another unchallenged ground remains.
• Preserve complaints regarding constitutional implications of (D) and (E) findings where applicable, but do not neglect non-endangerment grounds such as (N).

Appellee Strategy for Defending a Termination Judgment

• Begin with a threshold review of the appellant’s issue statement and argument headings.
• Identify any predicate finding the appellant failed to challenge.
• Argue early that the unchallenged ground is binding on appeal and independently supports affirmance.
• Emphasize that one valid predicate ground plus best interest is sufficient.
• If best interest is challenged, defend that finding robustly even if one predicate ground is waived.
• Use the waiver point to streamline the appellate presentation and reduce unnecessary briefing on alternative grounds.
• Cite local court authority recognizing affirmance based on unchallenged grounds.

Trial-Level Record Building for DFPS and Child-Protection Counsel

• Plead and prove all viable predicate grounds supported by the evidence.
• Secure clear findings in the termination order as to each predicate ground.
• Build a separate and fully developed best-interest record.
• Develop evidence showing compliance failures, missed testing, visitation history, service-plan nonperformance, and safety concerns.
• Tie the facts to multiple statutory predicates where warranted, including abandonment and endangerment theories.
• Ensure the order and record make each ground independently understandable on appeal.

Avoiding the Downside Seen by the Non-Prevailing Party

• Do not brief only the “headline” grounds while ignoring quieter but dispositive findings.
• Do not assume the court will reach challenged endangerment findings if another ground is uncontested.
• Do not rely on factual rehabilitation evidence unless it is paired with a complete attack on all predicate findings.
• Do not overlook constructive abandonment when the children have remained in Department conservatorship for the statutory period.
• Do not treat best interest as the sole battleground when a predicate ground has been waived by omission.

Citation

In re J.J. III and D.R.L.J., Children, No. 04-26-00022-CV, slip op. (Tex. App.—San Antonio June 3, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

~~30ab300e-5dc3-4b12-8f27-aca2955d6f02~~