Section 161.001(b)(1) Predicate Ground Required | L.S. v. DFPS (2026)

L. S. v. Texas Department of Family and Protective Services, 03-26-00361-CV, September 10, 2026.

On appeal from 146th District Court of Bell County

Synopsis

A termination decree cannot survive appellate review unless the record contains legally sufficient, clear-and-convincing evidence establishing at least one pleaded predicate ground under Texas Family Code section 161.001(b)(1). In L.S. v. DFPS, the Third Court of Appeals held that because no subsection (b)(1) ground was proved, the decree had to be reversed and judgment rendered denying the petition to terminate.

Relevance to Family Law

Although this is a parental-rights termination case, its practical force extends well beyond CPS litigation. For Texas family-law litigators handling SAPCRs, conservatorship modifications, geographic disputes, interstate parent issues, and contested custody cases involving allegations of violence, instability, or noninvolvement, the opinion is a reminder that serious facts do not substitute for proof tied to the specific statutory elements actually pleaded. The case also reinforces a broader appellate lesson applicable in divorce and custody litigation: when a trial strategy depends on generalized credibility attacks, criminal-history innuendo, or incomplete out-of-state investigation rather than element-by-element evidentiary development, the resulting judgment is vulnerable on legal-sufficiency review.

Case Summary

Fact Summary

The child was removed at birth in July 2024 based on concerns centered on the mother’s unstable mental health, hallucinations, and living conditions. The father, an Alabama resident, was not initially known to the Department when the case began. DFPS later sought termination of his parental rights as well, and the child remained in foster care, with the foster parent eventually intervening to seek termination and adoption.

At trial, the Department relied heavily on concerns about the father’s history of domestic violence, his criminal arrest history in Alabama, his allegedly limited visitation, and his failure to complete all requested services in the manner DFPS preferred. The second caseworker testified that father had not physically come to Texas to pick up the child, had not provided substantial material support, missed about half of his visits, and had not shown sufficient interest. She also testified that DFPS had not assessed the safety of his home in person and had not traveled to Alabama to do so. When pressed, she could not say for sure what would have happened had father come to Texas in person or exactly how the Department would evaluate his home for placement.

The first caseworker’s testimony was more mixed. She acknowledged that she had conducted a virtual review of father’s home and had no concerns about it. She further acknowledged that father had provided fingerprints, though not through the particular contracted provider she had directed him to use. Because father lived in Alabama, he had to locate and fund his own services, including counseling and evaluation.

Father testified that he had stable housing, stable employment, a wife, and three other children living with him. He stated that he had participated in court hearings, provided fingerprints, completed a parenting course, and begun counseling. He denied that DFPS had ever actually asked him to travel to Texas to retrieve the child and explained that he believed he had to proceed through legal channels rather than simply present himself and demand possession. He also testified that the first caseworker had visually inspected his home by video and raised no concerns.

The record did contain troubling evidence, particularly domestic-violence allegations involving both the mother and father’s current wife, as well as a substantial arrest history. But the father also testified that many arrests did not result in convictions, and the opinion makes clear that the appellate court focused not on whether the record contained concerning facts in the abstract, but whether those facts amounted to legally sufficient proof of any pleaded predicate ground under section 161.001(b)(1).

Issues Decided

• Whether the evidence was legally sufficient to prove by clear and convincing evidence that father committed at least one predicate act or omission under Texas Family Code section 161.001(b)(1).
• Whether an involuntary termination decree may stand when the evidence is legally insufficient as to every pleaded subsection 161.001(b)(1) ground.
• What the proper appellate disposition is when no predicate ground under section 161.001(b)(1) is supported by legally sufficient evidence.

Rules Applied

Termination of parental rights under Texas law requires proof of two distinct elements: a predicate act or omission under Texas Family Code section 161.001(b)(1), and that termination is in the child’s best interest under section 161.001(b)(2). The predicate-ground requirement is not optional; it is a statutory prerequisite to involuntary termination.

Because termination implicates fundamental constitutional interests, each required element must be supported by clear and convincing evidence. On appellate review, legal sufficiency is measured against that heightened burden. The reviewing court asks whether the evidence, viewed in the light most favorable to the finding, could permit a reasonable factfinder to form a firm belief or conviction as to the truth of the allegation.

The opinion’s central rule is straightforward: if no section 161.001(b)(1) predicate ground is proved by legally sufficient, clear-and-convincing evidence, termination cannot stand, regardless of other evidence bearing on best interest, placement preferences, or the Department’s concerns about the parent.

The court also applied the remedial principle that where the evidence is legally insufficient on a required termination element, the proper judgment is not remand for another try on the same record, but reversal and rendition denying the petition to terminate.

Application

The Third Court treated the predicate-ground inquiry as the threshold issue and did not permit the seriousness of the surrounding facts to blur the statutory analysis. The Department had proof that raised concerns: father had an arrest history, there was testimony about domestic violence, his visitation was not ideal, and he had not completed every requested service in precisely the manner DFPS demanded. But the court’s reasoning reflects a disciplined insistence that these concerns must still satisfy one or more pleaded section 161.001(b)(1) grounds through clear-and-convincing evidence.

That is where the Department’s proof failed. The record, as described in the opinion, showed substantial gaps and equivocation. DFPS witnesses gave mixed testimony about father’s contact and cooperation. One caseworker claimed father failed to stay connected, yet also testified she communicated with him once or twice a month. The Department faulted father for not retrieving the child, but father testified no one asked him to come to Texas and he believed legal process was required before he could take possession. DFPS criticized the lack of home assessment, but it had not traveled to Alabama and one caseworker had already performed a virtual inspection and found no concerns. The Department relied on fingerprint noncompliance, but the first caseworker conceded father had submitted fingerprints, just not through the preferred vendor.

The court therefore appears to have concluded that the Department’s evidence showed suspicion, concern, and perhaps frustration with an out-of-state father who did not litigate or perform services exactly as the agency wanted. But suspicion and concern are not substitutes for legally sufficient proof of a pleaded predicate act or omission. Because no subsection (b)(1) ground cleared that threshold, the appellate court had no need to reach father’s additional arguments on best interest or section 161.001(f)-type findings related to reasonable efforts and continuing danger.

Holding

The court held that legally sufficient, clear-and-convincing evidence did not establish that father committed any pleaded predicate act or omission under Texas Family Code section 161.001(b)(1). That holding alone was dispositive because a valid predicate finding is a necessary prerequisite to involuntary termination.

The court further held that when no section 161.001(b)(1) ground is proved, termination may not stand even if the record contains evidence the Department views as relevant to danger, instability, or best interest. In other words, best-interest evidence cannot cure failure of proof on the statutory predicate requirement.

Finally, the court held that the proper appellate remedy for legal insufficiency on all predicate grounds is to reverse the termination decree and render judgment denying the petition to terminate.

Practical Application

For trial lawyers, L.S. v. DFPS is a sharp reminder that termination cases are often lost on structure rather than emotion. If you represent a parent, this case is a model for forcing the Department to connect each fact to a specific pleaded statutory ground and to expose inconsistencies between agency theory and actual proof. Out-of-state parents, in particular, often become easy targets for narratives about distance, delayed bonding, imperfect visitation, and incomplete services. L.S. shows that those facts must still be translated into a legally sufficient subsection (b)(1) case, not merely a generalized argument that the parent is less convenient than the foster placement.

For petitioners, the opinion highlights a recurring failure point in termination litigation: conflating dangerous or unflattering background facts with evidence that satisfies statutory elements. Criminal history, domestic conflict, missed visits, and service-plan noncompliance can be powerful evidence, but only if developed with precision and tied to the ground pleaded. An appellate court will not repair a loose record by inference, especially under the clear-and-convincing standard.

The case also matters in private family-law litigation. In modification and conservatorship disputes, lawyers often overestimate the legal value of arrest records, informal accusations, and speculative placement concerns. L.S. underscores a broader proof principle: if a litigant wants extraordinary relief affecting parent-child rights, the evidence must be specific, admissible, and element-driven. The more severe the remedy, the less tolerance there will be for evidentiary shortcuts.

Strategically, this opinion is also useful for preserving appellate complaints. Where multiple predicate grounds are pleaded, counsel should attack each one distinctly in directed-verdict motions, objections to conclusory testimony, post-trial briefing, and appellate issue statements. The parent prevailed here because the absence of proof on every ground had consequences: reversal and rendition, not merely a remand.

Checklists

Defending Against Predicate Grounds

• Identify every pleaded section 161.001(b)(1) ground early and build a separate response to each one.
• Require the petitioner to specify which facts support which predicate ground.
• Object to conclusory testimony that a parent “abandoned,” “endangered,” or “failed to cooperate” without underlying facts.
• Highlight inconsistencies between caseworker testimony, family-service plans, court reports, and documentary exhibits.
• Develop evidence of contact, visitation attempts, gifts, financial support, calls, messages, and participation in hearings.
• Clarify whether the parent was ever actually offered placement, pickup, transport, or a concrete reunification path.
• If the parent is out of state, document every barrier created by geography, agency process, or cost-shifting.
• Preserve legal-sufficiency challenges as to each predicate ground individually.

Proving Predicate Grounds for Petitioners

• Plead only those section 161.001(b)(1) grounds the evidence can actually support.
• Match each witness and exhibit to a specific statutory element before trial.
• Do not rely on arrest history alone; develop admissible facts showing how conduct satisfies the pleaded ground.
• Eliminate ambiguity about service-plan compliance by documenting what was requested, when, how, and at whose expense.
• If home safety is an issue, obtain and present a competent home assessment rather than relying on the absence of one.
• If visitation quality or frequency is central, use detailed records rather than general criticism.
• Avoid testimony that the Department “could not say for sure” whether reunification was possible after compliance.
• Build a record explaining why less-drastic alternatives to termination were not viable.

Handling Out-of-State Parent Cases

• Confirm paternity and legal status immediately.
• Create a documented interstate placement plan rather than assuming distance equals disinterest.
• Clarify whether ICPC, a courtesy check, virtual inspection, or other placement mechanism applies.
• Memorialize all requests for fingerprints, evaluations, counseling, and release forms in writing.
• Address who pays for out-of-state services and whether equivalent local providers will be accepted.
• Document transportation and scheduling issues affecting visits and hearings.
• Distinguish inability from unwillingness when evaluating missed visits or delayed services.
• Make a clean record of every agency effort—or failure—to assess the parent’s home.

Appellate Preservation Checklist

• Move for judgment or directed verdict on legally insufficient predicate-ground evidence where appropriate.
• Request findings that identify the exact predicate ground or grounds found by the trial court.
• Challenge both legal and factual sufficiency, but prioritize legal sufficiency where rendition is possible.
• On appeal, brief each pleaded predicate ground separately rather than globally.
• Emphasize that best interest cannot substitute for proof of subsection (b)(1).
• Frame the remedy request as reversal and rendition denying termination when no predicate ground is supported.
• Use contradictory testimony from the Department’s own witnesses to show evidentiary failure.
• Keep the standard of review tied to the clear-and-convincing burden at every stage.

Citation

L. S. v. Texas Department of Family and Protective Services, No. 03-26-00361-CV (Tex. App.—Austin Sept. 10, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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