Unpreserved Jury-Charge Error Waived in Termination Appeals (2026)

In the Interest of S.K. and A.K., Children, 02-26-00151-CV, June 11, 2026.

On appeal from 367th District Court, Denton County, Texas

Synopsis

The Fort Worth Court of Appeals reaffirmed that ordinary error-preservation rules fully apply in parental-rights-termination jury trials. If a party does not object to the jury charge under Rule 274 and does not preserve the complaint under Rule 33.1, the issue is waived on appeal, and due process does not create a termination-case exception.

Relevance to Family Law

Although this was a termination appeal, its practical reach extends well beyond CPS litigation. For Texas family-law trial lawyers handling SAPCRs, conservatorship disputes, custody modifications, enforcement proceedings with jury issues, and even property cases submitted to a jury, the opinion is a reminder that appellate complaints are won or lost at the charge conference. The broader lesson is strategic: constitutional overtones do not excuse preservation failures, and counsel should assume that courts will enforce ordinary procedural rules even in cases involving fundamental parental rights.

Case Summary

Fact Summary

Mother appealed an order terminating her parental rights to two children after a jury found clear and convincing evidence supporting three predicate grounds under Family Code Section 161.001(b)(1)—subsections (D), (E), and (O)—and also found termination to be in the children’s best interest. Notably, Mother did not challenge the legal or factual sufficiency of the evidence supporting termination.

Instead, the appeal focused on two procedural attacks. First, Mother argued that the jury charge improperly included a nonstatutory definition of “endanger,” which she characterized as an impermissible comment on the weight of the evidence. But she had not objected to the charge in the trial court, despite multiple opportunities to do so.

Second, Mother asserted ineffective assistance of appointed counsel, contending trial counsel failed to investigate or challenge drug-test evidence, including the qualifications of lab personnel and the accreditation or licensing of the testing entities. That argument relied on a forensic-licensing framework drawn from legislation ultimately codified in Article 38.01 of the Texas Code of Criminal Procedure.

The court treated both complaints as legal questions controlled largely by established supreme court precedent and by the limited scope of the criminal forensic statutes Mother invoked.

Issues Decided

• Whether a parent in a termination appeal may obtain appellate review of unpreserved jury-charge error despite Texas Rule of Civil Procedure 274 and Texas Rule of Appellate Procedure 33.1.
• Whether due process requires an exception to ordinary preservation rules in parental-rights-termination cases.
• Whether appointed trial counsel rendered ineffective assistance by failing to challenge drug-testing evidence based on forensic licensing and accreditation requirements found in the Code of Criminal Procedure.

Rules Applied

The court relied on familiar preservation doctrine and a narrow but decisive line of termination precedent:

• Texas Rule of Civil Procedure 274: complaints to the jury charge are waived unless specifically included in an objection.
• Texas Rule of Appellate Procedure 33.1(a): to preserve error, a party must make a timely and sufficiently specific request, objection, or motion and obtain a ruling or refusal to rule.
• In re B.L.D., 113 S.W.3d 340 (Tex. 2003): unpreserved charge complaints in termination cases are waived; fundamental-error concepts do not create a general exception.
• In re A.F., 113 S.W.3d 363 (Tex. 2003): due process does not require appellate review of unpreserved jury-charge complaints in termination cases.
• In re M.S., 115 S.W.3d 534 (Tex. 2003), applying Strickland v. Washington, 466 U.S. 668 (1984): ineffective-assistance claims in termination cases require deficient performance and prejudice.
• Texas Code of Criminal Procedure Articles 38.01 and 38.35: forensic analyst licensing and crime-lab accreditation requirements apply to criminal actions, not civil parental-rights-termination proceedings.

Application

The court’s analysis on the charge issue was short because the law was settled. Mother candidly admitted that no objection had been made to the jury charge. That concession effectively ended the preservation inquiry. The court then rejected Mother’s invitation to create a termination-specific exception, explaining that the Texas Supreme Court had already foreclosed that position in B.L.D. and A.F.. In other words, the appellate court did not weigh whether Mother’s policy argument had force; it held that the argument was no longer legally available.

The ineffective-assistance claim failed for a different but equally straightforward reason. Mother argued that competent counsel should have challenged the drug-test evidence by invoking licensing and accreditation requirements applicable to forensic analysts and crime laboratories. The court examined the statutory scheme and concluded that the cited provisions govern criminal actions only. Article 38.35 expressly limits admissibility consequences to criminal actions, defines “forensic analysis” by reference to connection with a criminal action, and excludes testing performed principally for civil litigation. Because the statutory theory Mother advanced did not apply to a termination case, trial counsel had no valid basis to object on that ground. Counsel is not deficient for failing to make a frivolous or meritless objection. With the entire ineffective-assistance complaint built on an inapplicable legal premise, the first Strickland prong could not be satisfied.

Holding

The court held that Mother waived her jury-charge complaint by failing to object in the trial court. In termination cases, just as in other civil cases, Rule 274 and Rule 33.1 control preservation, and due process does not require appellate review of an unpreserved charge issue. The court expressly relied on In re B.L.D. and In re A.F. as controlling authority.

The court also held that Mother failed to establish ineffective assistance of counsel. Her complaint depended on the proposition that trial counsel should have challenged drug-test evidence under forensic licensing and accreditation requirements applicable to criminal proceedings. Because those statutes do not apply in civil termination litigation, counsel was not deficient for failing to object on that basis. The termination order was therefore affirmed.

Practical Application

For family-law litigators, this opinion is less about novelty than discipline. It confirms that no appellate court is likely to rescue a parent from an unpreserved jury-charge complaint by invoking the constitutional magnitude of termination. If you are trying a jury case involving conservatorship, possession, restrictions, fraud-on-the-community issues, reimbursement questions, or any submission in which wording matters, this case reinforces a basic but often outcome-determinative point: the record at the charge conference is the appellate record.

The case also carries a second practical message about ineffective-assistance framing in termination appeals. Appellate lawyers often inherit records where trial counsel did not object to damaging evidence, and there can be a temptation to recast every omission as deficient performance. This opinion shows the limits of that approach. The omitted objection must have been legally sound, strategically necessary, and likely consequential. If the underlying objection would have failed, the ineffective-assistance claim will usually fail with it.

In CPS and private family-law cases alike, lawyers should also distinguish carefully between criminal evidentiary frameworks and civil evidentiary frameworks. Drug-test evidence often feels “forensic,” but that does not mean criminal forensic-lab statutes govern admissibility in civil court. When challenging testing in a family case, practitioners should build objections from the Texas Rules of Evidence, authentication, chain of custody, expert reliability where applicable, predicate deficiencies, and case-specific foundation problems—not from criminal statutes that do not apply.

Finally, this case should influence how trial teams prepare for ultra-accelerated appeals. Termination appeals move quickly. Preservation cannot be fixed later. The trial lawyer must identify charge defects, object specifically, tender requested language when necessary, secure a ruling, and ensure the court reporter captures the exchange. That is as true in a final jury trial over conservatorship or property characterization as it is in a parental-termination case.

Checklists

Preserving Jury-Charge Error in Family Cases

• Review the proposed charge early enough to prepare written objections and requested submissions.
• Object on the record before the charge is read to the jury.
• State each objection with specificity; do not rely on broad complaints that the charge is “improper” or “prejudicial.”
• Identify whether the complaint is to a definition, instruction, question, granulation, inferential rebuttal, or omission.
• When complaining of an omitted submission, tender substantially correct requested language.
• Obtain a ruling on each objection or, at minimum, a refusal to rule that is itself on the record.
• Confirm that the court reporter transcribes the charge conference.
• Re-urge critical objections if the court circulates a revised charge.
• Make sure the clerk’s record includes written objections, requested questions, and proposed definitions or instructions.

Challenging Drug-Test Evidence in Civil Family Litigation

• Determine whether the challenge is one of relevance, authentication, hearsay, expert qualification, reliability, chain of custody, or weight.
• Do not assume criminal forensic statutes apply in a civil SAPCR or termination case.
• Request underlying lab records, collection protocols, and chain-of-custody materials in discovery.
• Evaluate whether the sponsoring witness can lay the necessary predicate under the Rules of Evidence.
• Consider whether the test result is being offered through a business-record affidavit and whether a timely counteraffidavit or objection is warranted.
• Assess whether expert testimony is required to explain methodology, cutoff levels, confirmation testing, or alleged false positives.
• Develop alternative factual challenges, including timing, contamination risk, medication interactions, or specimen-identification errors.
• Preserve every evidentiary complaint at the moment the evidence is offered.

Building or Defending Ineffective-Assistance Claims in Termination Appeals

• Start with the exact omitted act or objection; define it precisely.
• Verify that the omitted objection or motion would have had a sound legal basis.
• Evaluate whether the record affirmatively shows counsel’s reasoning; if silent, remember the strong presumption of reasonable strategy.
• Tie the alleged deficiency to a specific prejudice theory, not a generalized unfairness argument.
• Avoid ineffective-assistance claims based solely on objections that would have been overruled.
• Consider whether a motion for new trial could develop a better record on counsel’s reasoning.
• Frame the claim within Strickland and In re M.S., not abstract notions of inadequate advocacy.

Trial-Readiness for Appeals in High-Stakes Family Cases

• Prepare an issue-preservation outline before trial begins.
• Assign one team member to track objections, rulings, and offers of proof in real time.
• Anticipate charge disputes from the pleadings and evidence, not at the last minute.
• Match each anticipated appellate issue to the precise preservation mechanism required.
• Use written motions in limine only as a supplement; remember they do not preserve error.
• If the court excludes evidence, make a clear offer of proof.
• If the court includes objectionable language in the charge, make a specific record why it is improper and how it probably causes harm.
• After judgment, audit the record promptly for preservation gaps before deadlines expire.

Citation

In the Interest of S.K. and A.K., Children, No. 02-26-00151-CV, 2026 WL ___ (Tex. App.—Fort Worth June 11, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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