Memorandum Opinion by Justice Wallach, 02-25-00524-CV, January 30, 2026.
On appeal from the 324th District Court, Tarrant County
Synopsis
The Second Court of Appeals affirmed a trial court’s decree terminating parental rights, emphasizing that a parent’s failure to raise constitutional objections regarding their absence from trial at the time of the hearing waives those issues for appellate review. Substantively, the court held that a long-term history of methamphetamine use, coupled with a refusal to submit to court-ordered drug testing, creates a sufficient evidentiary basis to support an endangerment finding under Texas Family Code Section 161.001(b)(1)(E).
Relevance to Family Law
For the Texas family law practitioner, this opinion reinforces two critical strategic points: the “presumption of use” and the strictness of error preservation. In high-conflict custody or termination litigation, a party’s refusal to submit to drug testing is not merely a discovery frustration; it is substantive evidence that can trigger a presumption of illegal drug use sufficient to support an endangerment finding. Furthermore, this case serves as a cautionary tale for trial counsel regarding due process claims; a request for more time to transport an incarcerated client is insufficient to preserve a constitutional complaint unless the constitutional nature of the objection is explicitly stated on the record.
Case Summary
Fact Summary
The litigation arose following the birth of “Ann” in November 2024, at which time both her umbilical cord and meconium tested positive for methamphetamines. The Department of Family and Protective Services obtained an ex-parte order for removal shortly thereafter. Father’s history was characterized by significant substance abuse, with admissions of methamphetamine use beginning at age fifteen. Although Father claimed two years of sobriety at one point, he subsequently admitted to a caseworker that he continued to smoke marijuana and had smoked methamphetamines with the Mother. Critically, throughout the pendency of the case, Father repeatedly refused to submit to court-ordered drug testing, even admitting to a caseworker that a test would likely reveal substances beyond marijuana. At the time of the trial, Father was incarcerated. His counsel requested additional time to have Father brought from jail to attend the trial, but did not frame this request as a constitutional due process objection.
Issues Decided
- Whether Father preserved his constitutional claims regarding his absence from trial for appellate review.
- Whether the evidence was legally and factually sufficient to support a finding of endangerment under Section 161.001(b)(1)(E).
- Whether the evidence was legally and factually sufficient to support the finding that termination was in the child’s best interest.
Rules Applied
The court applied Texas Rule of Appellate Procedure 33.1, which requires a timely and specific objection at the trial level to preserve a complaint for appeal, noting that even constitutional claims can be waived. Regarding the merits of termination, the court looked to Texas Family Code § 161.001(b)(1)(E), which allows for termination if the parent has engaged in conduct that endangers the physical or emotional well-being of the child. The court further relied on established precedent stating that a factfinder may reasonably infer that a parent’s refusal to submit to drug testing indicates they are avoiding testing because they are using illegal drugs.
Application
The court’s application of the law centered on the nexus between Father’s drug-related conduct and the resulting endangerment to the child. The court observed that Father’s history was not merely one of past addiction, but included admissions of recent drug use with the Mother. This history, when viewed alongside his refusal to undergo testing, allowed the trial court to presume ongoing drug use. The court noted that illegal drug use by a parent, and its resulting effect on the parent’s life and ability to care for a child, constitutes conduct that endangers a child’s well-being. Because Father failed to provide a stable environment and continued to engage in substance abuse that led to the child being born drug-exposed, the evidence was deemed sufficient under Subsection (E). Regarding the procedural issue, the court found that because trial counsel merely requested “more time” and did not raise a constitutional due process argument, the Father could not raise those constitutional issues for the first time on appeal.
Holding
The court held that Father failed to preserve any constitutional complaints regarding his absence from trial. To preserve such an issue, the record must reflect that the party made the trial court aware of the specific constitutional grounds for the complaint.
The court held that the evidence was legally and factually sufficient to support termination under Section 161.001(b)(1)(E). The combination of the child’s drug exposure at birth, Father’s admitted history of use, and his refusal to submit to drug tests provided an ample basis for an endangerment finding.
The court held that termination was in the child’s best interest, particularly given Father’s lack of stable employment, his reliance on plasma donation for income, and his failure to address the underlying substance abuse issues that led to the Department’s intervention.
Practical Application
This case provides a roadmap for both Department and private practitioners in handling parents who “play games” with drug testing. When a parent refuses a test, do not merely move for contempt; ensure the record reflects the refusal as substantive evidence of endangerment. For defense counsel representing incarcerated parents, this opinion is a reminder that a simple motion for continuance or a request for time is insufficient. You must explicitly invoke the United States and Texas Constitutions on the record to protect your client’s rights on appeal.
Checklists
Preserving Constitutional Error for Absent Parents
- File a written motion for a bench warrant or a request for appearance via remote technology (e.g., Zoom).
- If the request is denied, object specifically on the grounds of Due Process under the 14th Amendment and Due Course of Law under the Texas Constitution.
- Ensure the trial court makes a specific ruling on the constitutional objection.
- If a continuance is sought to facilitate the parent’s presence, tie the motion for continuance directly to the parent’s constitutional right to participate in the proceedings.
Utilizing Drug Test Refusals in Custody/Termination
- Request specific, court-ordered drug testing with a clear “refusal equals positive” admonishment in the temporary orders.
- Establish a timeline of every missed or refused test through caseworker or expert testimony.
- Elicit admissions regarding why the party refused to test (e.g., “I knew I would be dirty for marijuana”).
- Argue the “inference of use” in the closing statement to link the refusal to the statutory endangerment grounds.
Citation
In the Interest of I.H., No. 02-25-00524-CV (Tex. App.—Fort Worth Jan. 30, 2026, no pet. h.).
Full Opinion
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