In re N.G. (2019): Why Endangerment Findings Must Be Reviewed on Appeal

The short answer

In In re N.G., the Supreme Court of Texas held that if a parent appeals a termination finding under Family Code section 161.001(b)(1)(D) or (E), the appeals court must review it, even if another ground is enough to affirm In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). The reason is that those two endangerment findings can later be used to end the parent's rights to other children In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

What the case was about

The Department found that the adults in a young child's home had exposed the child to methamphetamine and marijuana and that the child was living in a "hoarder home." It placed the child in protective custody In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). The trial court ordered both parents to complete educational services, drug and alcohol treatment, and counseling. Both missed drug tests and failed to comply with other court-ordered services In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

The trial court ended both parents' rights on three grounds, (D), (E) and (O), and found termination was in the child's best interest In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). As the opinion quotes them:

• (D) is knowingly placing or allowing the child to remain in conditions or surroundings that endanger the child's physical or emotional well-being In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam);
• (E) is engaging in conduct, or knowingly placing the child with people who engage in conduct, that endangers the child In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam); and
• (O) is failing to comply with a court order that specifically set out what the parent had to do to get the child back, for a child in the Department's conservatorship for at least nine months after removal for abuse or neglect In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

The court of appeals affirmed under (O) and did not review (D) or (E). Only the mother asked the Supreme Court of Texas for review In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

What the court decided

The Court ruled in a per curiam opinion, without oral argument In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

The usual rule. To affirm a termination, an appeals court generally needs to uphold only one ground, plus a challenged best-interest finding In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

Why (D) and (E) are different. Another ground, (M), allows termination if the parent's rights to another child were ended based on (D) or (E) In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). So a (D) or (E) finding "becomes a basis to terminate that parent's rights to other children," and its consequences "are significant" In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). Due process requires that a parent's appeal be "meaningful" In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). Weighing the interests, the Court held the parent's fundamental liberty interest outweighed the State's interest in deciding only what is needed to resolve the appeal In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). Leaving a challenged (D) or (E) finding unreviewed violates due process and due course of law In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). If an appeals court affirms on either ground, it must detail its analysis In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

Specific orders under (O). The Court said an order must be "sufficiently specific" to support termination for failing to follow it In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). The trial court is best placed to judge that, but an appeals court errs if it upholds (O) without considering the order's specificity In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). Because the service plan was made part of the order, the mother's challenge covered the plan too In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). The mother did not raise the exceptions in section 161.001(d), so the Court did not address them In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

The Court reversed and sent the case back to the court of appeals In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

In the court's words

Further, a parent must be permitted to appeal the termination of parental rights, and due process requires that the appeal be meaningful.

In plain English: when you challenge a (D) or (E) finding on appeal, the appeals court has to actually review it In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

Section 161.001(b)(1)(O) makes clear that an order must be sufficiently specific to warrant termination of parental rights for failure to comply with it.

In plain English: you can only be faulted for not following an order that clearly told you what to do In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

Why it matters for Texas families

N.G. means an endangerment finding is not just one of several reasons in a judgment. It can follow a parent into a future case In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam). If your rights are terminated on (D) or (E), ask your appellate lawyer whether to challenge those findings. If you have a court-ordered service plan, ask your lawyer what each task requires. For how appeals courts weigh the evidence, see In re J.F.C. (2002): How Appeals Courts Test the Evidence in Termination Cases and In re C.H. (2002): Factual Sufficiency and the Firm-Belief Test. This is legal information, not legal advice.

Related

• In re C.H. (2002): Factual Sufficiency and the Firm-Belief Test
• In re J.F.C. (2002): How Appeals Courts Test the Evidence in Termination Cases
• In re E.N.C. (2012): Deportation, an Old Conviction, and Proof of Endangerment
• In re D.T. (2021): Ineffective-Assistance Claims With a Hired Lawyer