First Court Affirms Termination Despite Invalid Former Subsection (O) Ground

In the Interest of D.D.D.-H. a/k/a D.D.D.H., A.R.M., and O.N.H. a/k/a O.H., Children, 01-25-00917-CV, April 28, 2026.

On appeal from 313th District Court of Harris County, Texas

Synopsis

The First Court of Appeals held that former Family Code section 161.001(b)(1)(O) could not support termination because the Legislature had removed that predicate ground before the termination decree was signed. But the error did not matter because the record still contained legally and factually sufficient evidence to support termination under subsections (D) and (E), as well as the best-interest finding.

Relevance to Family Law

Although this is a termination case, its practical importance extends well beyond CPS litigation. For Texas family-law litigators handling SAPCR modifications, conservatorship disputes, divorce cases involving parent-child relief, and post-judgment enforcement or modification proceedings, the opinion is a useful reminder that statutory changes can alter the viability of pleaded grounds between trial and judgment, and that endangerment-based findings under subsections (D) and (E) remain uniquely consequential because they carry collateral effects for future parental-rights litigation. The case also underscores a broader appellate point that applies across family practice: when a trial court relies on multiple theories, one invalid ground will not require reversal if another independently supported ground and the associated best-interest findings survive sufficiency review.

Case Summary

Fact Summary

The Department first became involved in August 2021, shortly after Oscar’s birth, when it received a referral alleging that Mother had physically abused Daniel, then ten years old. According to the opinion, Mother reported Daniel as a runaway, expressed indifference about what happened to him, and told investigators she might abandon him because of his behavior. Daniel returned while officers were present and reported that Mother had struck him with a stick, causing swelling to his forearm, and had previously hit him with an extension cord. Mother was arrested for injury to a child, although the criminal charge was later dropped.

Because Mother was in custody and did not identify relatives who could immediately care for the children, the Department sought temporary managing conservatorship. Daniel was placed outside the home, while Alex and Oscar were initially allowed to remain with Mother. The Department developed service plans requiring, among other things, stable housing and employment, parenting classes, substance-abuse assessment, psychosocial assessment, and compliance with treatment recommendations.

In January 2023, after an earlier trial, the trial court appointed the Department sole managing conservator but did not terminate Mother’s rights. Alex and Oscar remained with Mother, and Mother retained limited visitation with Daniel. The Department’s reunification goal continued, but concerns persisted about Mother’s physical discipline, instability, and ability to meet the children’s needs.

By January 2024, the Department’s concerns had broadened. Its evaluation reflected not only the original physical-discipline concerns, but also concerns about Mother’s judgment, parenting skills, mental-health instability, housing insecurity, inability to provide basic necessities, lack of support systems, and possible substance-abuse issues. At that point, Mother, Alex, and Oscar were living in a shelter, and the Department concluded that she severely mismanaged resources in a way that left basic needs unmet. The Department later removed Alex and Oscar from Mother’s care as well, and in June 2024 it moved to modify the prior conservatorship order and sought termination of Mother’s parental rights.

The appeal arose after the trial court signed an October 14, 2025 termination decree finding three predicate grounds, including subsections (D), (E), and former subsection (O), and finding that termination was in the children’s best interest. The statutory wrinkle was that the Legislature had eliminated former subsection (O), effective September 1, 2025, and made that amendment applicable to pending trial-court cases. So while subsection (O) existed when the Department amended its pleadings and when trial occurred in August 2025, it no longer existed as a valid predicate ground when the decree was signed.

Issues Decided

The court decided the following issues:

• Whether former Family Code section 161.001(b)(1)(O) could support a termination decree signed after the 2025 amendment eliminated that predicate ground.
• Whether legally and factually sufficient evidence supported termination under Family Code section 161.001(b)(1)(D).
• Whether legally and factually sufficient evidence supported termination under Family Code section 161.001(b)(1)(E).
• Whether legally and factually sufficient evidence supported the finding that termination was in the children’s best interest.

Rules Applied

The court applied the familiar termination framework under Family Code section 161.001(b): the Department had to prove by clear and convincing evidence at least one predicate ground under section 161.001(b)(1) and that termination was in the children’s best interest under section 161.001(b)(2).

Several rules matter here.

• Subsections (D) and (E) address endangerment. Subsection (D) focuses on knowingly placing or allowing a child to remain in conditions or surroundings that endanger the child’s physical or emotional well-being. Subsection (E) focuses on the parent’s conduct, including conduct that endangers the child’s physical or emotional well-being.
• Because findings under subsections (D) and (E) can have collateral consequences in future parental-rights proceedings, appellate courts must review challenges to those findings when raised.
• Legal-sufficiency review in termination cases asks whether a reasonable factfinder could have formed a firm belief or conviction in the truth of the finding, viewing the evidence in the light most favorable to the finding.
• Factual-sufficiency review asks whether, in light of the entire record, disputed evidence is such that a reasonable factfinder could not have formed a firm belief or conviction.
• Best-interest review is guided by the statutory and common-law framework, including the Holley factors and statutory considerations concerning the child’s safety, stability, and emotional and physical needs.
• The 2025 legislative amendment removing former subsection (O) applied to SAPCRs pending in the trial court on September 1, 2025, or filed thereafter. Because this case remained pending when the amendment became effective and the decree was signed after the effective date, former subsection (O) was no longer a valid predicate ground that could support termination.

Application

The First Court treated the subsection (O) issue as a threshold statutory problem, not a sufficiency question. The key date was not when the Department filed its modification pleading or even when the evidence was heard at trial, but when the termination decree was signed. By October 14, 2025, former subsection (O) had already been repealed as a valid predicate ground, and the Legislature had expressly made that change applicable to pending trial-court cases. As a result, the court concluded that subsection (O) simply could not support the decree and declined to address Mother’s merits challenge to that ground.

That statutory defect did not end the appeal, however, because the decree also rested on subsections (D) and (E). On those grounds, the court looked to the Department’s evidence of Mother’s physical abuse of Daniel, her statements reflecting indifference toward his welfare, the history of striking him with objects, and the ongoing concerns about unsafe and unstable living conditions. The opinion also points to evidence that Mother lacked stable housing, had been evicted for nonpayment, was living in a shelter with the younger children, mismanaged resources to the point that food, clothing, and housing needs were unmet, displayed unresolved mental-health concerns, and may have had substance-abuse issues. Viewed together, that evidence allowed the trial court to infer both environmental endangerment and a continuing course of endangering parental conduct.

The court’s treatment of best interest followed the same logic. This was not a case in which the Department relied on a single historical incident and little else. Instead, the record showed a pattern: physical discipline that crossed into injury, instability in housing and finances, concerns about untreated mental health, deficient parenting skills despite services, and stressful family interactions that affected the children’s sense of safety and security. From that record, the trial court could reasonably conclude that termination, rather than continued legal ties to Mother, best served the children’s immediate safety and long-term need for stability.

Holding

The court first held that former subsection (O) could not support the termination decree because the Legislature had removed that provision as a valid predicate ground before the decree was signed, and the amendment applied to cases still pending in the trial court. In practical terms, that means the trial court’s inclusion of subsection (O) in the decree was erroneous.

The court nevertheless affirmed because legally and factually sufficient evidence supported termination under subsection (D). The evidence permitted the trial court to form a firm belief or conviction that Mother knowingly placed or allowed the children to remain in endangering conditions or surroundings, particularly in light of the evidence concerning physical abuse, instability, and inability to provide safe and secure living conditions.

The court also held that legally and factually sufficient evidence supported termination under subsection (E). The record supported a finding of endangering conduct by Mother herself, not merely a problematic environment, through evidence of physically abusive discipline, indifference to Daniel’s welfare, and continuing instability affecting all three children.

Finally, the court held that sufficient evidence supported the best-interest finding. Even after disregarding former subsection (O), the remaining evidence of abuse, instability, unmet needs, and the children’s need for safety and permanence was enough to sustain the decree.

Practical Application

For practitioners representing the Department or petitioning conservators, the case is a drafting and judgment-entry warning: always verify that the statutory grounds in your proposed order remain valid on the date judgment will be signed. Legislative amendments that become effective after trial but before rendition or signing can change the legal landscape, especially in pending SAPCRs. This is not just a CPS point. The same vigilance matters in divorce and custody litigation whenever statutory amendments affect standing, conservatorship presumptions, possession rules, evidentiary provisions, or fee-shifting authority.

For parent-side counsel, this case reinforces two appellate priorities. First, if a decree includes a ground that has been repealed, superseded, or otherwise rendered unavailable, attack it directly. Second, in termination cases, do not stop with the invalid ground; you must still confront every independently sufficient predicate finding, especially subsections (D) and (E), because those findings have lasting collateral consequences. If the evidentiary record contains facts showing physical abuse, unsafe living conditions, untreated mental-health concerns, chronic instability, or inability to meet basic needs, a court of appeals may affirm despite a legally unavailable alternative ground.

For family-law litigators outside the CPS context, the opinion is also a strategic analogy for multi-ground judgments. In modification or enforcement practice, when a trial court’s ruling can be supported on multiple bases, eliminating one rationale may not change the outcome unless you also defeat the alternative grounds. Appellate strategy should therefore be organized around judgment preservation and judgment destruction, not merely around identifying one obvious error.

Checklists

Review the Statutory Ground Before Judgment Is Signed

• Confirm the exact text of Family Code section 161.001(b)(1) in effect on the date the final decree will be signed.
• Check whether any recent amendment contains an applicability clause for pending cases.
• Compare the pleaded grounds, charge or findings, and proposed decree language against the current statute.
• Object to inclusion of any repealed, renumbered, or superseded predicate ground.
• If necessary, submit a corrected proposed decree that removes obsolete statutory language.

Build and Defend Endangerment Findings Under Subsections (D) and (E)

• Separate environmental endangerment evidence from conduct-based endangerment evidence.
• Develop proof of unsafe surroundings, including unstable housing, unmet basic needs, exposure to violence, or hazardous caretaking arrangements.
• Develop proof of endangering conduct, including physical abuse, repeated neglect, substance abuse, untreated mental illness affecting parenting, or chronic instability.
• Tie the evidence to each child where possible, while also showing household-wide risk patterns.
• Preserve clear-and-convincing evidentiary themes in opening, witness examinations, and closing.

Attack Endangerment Findings on Appeal

• Challenge legal sufficiency and factual sufficiency separately.
• Identify whether the record shows isolated conduct versus a continuing course of endangering behavior.
• Highlight contrary evidence showing remediation, compliance, improved housing, treatment participation, or stable caregiving.
• Argue the absence of a nexus between the complained-of condition and actual endangerment to the child.
• In all cases involving subsections (D) and (E), brief those findings fully because of their collateral consequences.

Prove or Defeat Best Interest

• Organize the evidence around child safety, stability, emotional needs, and permanence.
• Use placement evidence to show whether the current or proposed home meets the child’s needs better than the parent can.
• Address the parent’s progress, if any, but also whether that progress is recent, partial, or untested.
• Do not rely solely on service-plan noncompliance if stronger evidence exists regarding danger, instability, or caregiving deficits.
• On appeal, explain why the best-interest record either does or does not rise to the clear-and-convincing standard independent of the predicate grounds.

Preserve Error in Multi-Ground Family Judgments

• Request findings that clearly identify each statutory or legal basis for the ruling.
• Object to legally unavailable grounds before entry of judgment.
• If one ground becomes invalid due to a statutory amendment, move to modify, correct, or reform the judgment.
• On appeal, challenge every independent basis that could sustain the judgment.
• When defending the judgment, emphasize any unaffected alternative ground that independently supports affirmance.

Citation

In the Interest of D.D.D.-H. a/k/a D.D.D.H., A.R.M., and O.N.H. a/k/a O.H., Children, No. 01-25-00917-CV, 2026 WL ___ (Tex. App.—Houston [1st Dist.] Apr. 28, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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