Third Court of Appeals Affirms Termination of Parental Rights: Analyzing Endangerment and Ineffective Assistance Claims

R.F. v. Texas Department of Family and Protective Services, 03-25-00736-CV, March 20, 2026.

On appeal from the 126th District Court of Travis County, Texas.

Synopsis

The Third Court of Appeals affirmed the termination of parental rights, holding that a mother’s prenatal methamphetamine use combined with a post-removal failure to achieve stability constitutes a voluntary course of endangering conduct under Texas Family Code § 161.001(b)(1)(E). Furthermore, the court rejected an ineffective assistance of counsel claim, emphasizing that a silent record regarding trial strategy precludes a finding of deficient performance regarding the failure to request a trial recess.

Relevance to Family Law

For practitioners navigating the intersection of substance abuse and conservatorship, this decision underscores the potency of Subsection (E) as a “catch-all” for endangering conduct that begins before birth and continues through the pendency of a case. It serves as a reminder that “endangerment” does not require a specific injury but rather a course of conduct that subjects a child to uncertainty. Additionally, from an appellate preservation standpoint, the case highlights the extreme difficulty of prevailing on an ineffective assistance claim on direct appeal when the record has not been developed via a motion for new trial to uncover trial counsel’s strategic motivations.

Case Summary

Fact Summary

The litigation began in November 2023 after both the mother and the newborn child tested positive for methamphetamines and amphetamines at birth. The Department of Family and Protective Services implemented a service plan requiring the mother to complete inpatient drug treatment, maintain stable housing, and obtain employment. While the child was placed with a maternal aunt, the mother failed to complete the required rehabilitation and continued to struggle with instability. By the time of the final hearing, the child exhibited significant developmental delays, including a 57% delay in social-emotional skills. At trial, the mother’s sister testified that the mother was “still using,” and the mother herself did not testify. The trial court terminated the mother’s rights on multiple grounds, including endangerment, and found that termination was in the child’s best interest.

Issues Decided

1. Whether the evidence was legally sufficient to support a finding of endangerment under Texas Family Code Section 161.001(b)(1)(E) based on prenatal drug use and subsequent instability.
2. Whether trial counsel’s failure to request a recess or continuance to allow the mother to testify constituted ineffective assistance of counsel.

Rules Applied

• Texas Family Code § 161.001(b)(1)(E): Authorizes termination if the parent engaged in conduct that endangers the physical or emotional well-being of the child.
• Endangerment Standard: As defined in Texas Dep’t of Hum. Servs. v. Boyd, “endanger” means to expose to loss or injury or to jeopardize. This can be inferred from parental misconduct alone and does not require the child to suffer an actual injury.
• Subsection (E) Course of Conduct: Requires a voluntary, deliberate, and conscious course of conduct, which can include acts occurring both before and after the child’s removal.
• Ineffective Assistance of Counsel: Governed by the Strickland v. Washington two-prong test, requiring a showing that counsel’s performance was deficient and that the deficiency prejudiced the defense. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.

Application

The court’s analysis of the endangerment finding focused on the mother’s drug use as a “voluntary, deliberate, and conscious course of conduct.” The court rejected the mother’s argument that the evidence was insufficient due to a lack of formal medical records. Instead, the court relied on the undisputed testimony regarding the positive drug tests at birth and the mother’s own admissions of methamphetamine use during the pendency of the case. The court noted that prenatal drug use is a factor that endangers a child’s physical and emotional well-being, particularly when coupled with evidence that the child later suffered from developmental delays. Because the mother continued to use drugs and failed to provide a stable environment after removal, the court found a persistent pattern of endangerment that satisfied Subsection (E).

In addressing the ineffective assistance of counsel claim, the court applied a rigorous deferential standard. The mother argued that her attorney was ineffective for failing to request a recess so she could testify. However, the appellate record contained no explanation for counsel’s decision. The court reasoned that in the absence of a developed record—such as through a motion for new trial—it must presume that counsel’s decision was strategic. For instance, counsel may have determined that the mother’s testimony would have been more damaging than helpful to her case. Without evidence to the contrary, the court could not conclude that the attorney’s performance was constitutionally deficient.

Holding

The court held that the evidence was legally sufficient to support termination under Subsection (E). The court emphasized that drug use during pregnancy, followed by a failure to maintain sobriety and stability during the conservatorship period, constitutes a course of conduct that endangers a child’s physical and emotional well-being.

The court further held that the mother failed to meet her burden of proving ineffective assistance of counsel. Because the record was silent as to the motivations behind counsel’s trial decisions, the court maintained the presumption of reasonable professional assistance and declined to speculate on whether the failure to request a recess was a tactical error or a calculated strategy.

Practical Application

• Subsection (E) vs. (O): This case demonstrates the utility of Ground (E) when Ground (O) (failure to comply with a court order) might be legislatively in flux or harder to prove. Litigators should emphasize that drug use is not just a “failure to follow a plan” but an affirmative “course of endangering conduct.”
• Evidence Beyond Test Results: You do not necessarily need a medical professional to testify to prove endangerment. Admissions in service plans and testimony from family members regarding ongoing use can be legally sufficient.
• Developing the Record for Appeal: If you are representing a parent and believe trial counsel was ineffective, a direct appeal is rarely the proper vehicle unless you first file a motion for new trial to build a record of why counsel took or failed to take certain actions.

Checklists

Proving Endangerment under Subsection (E)

• Document all prenatal drug exposure through Department reports or admissions.
• Connect drug use to the child’s specific developmental or physical health issues (e.g., the 57% social-emotional delay cited in this case).
• Evidence of “instability” as a form of endangerment, including failure to maintain housing or employment.
• Testimony from “kinship” or “foster” placements regarding the parent’s current sobriety or lack thereof.

Defending Against Ineffective Assistance Claims

• Ensure the trial record reflects any logistical hurdles regarding the client’s availability.
• If a client is not present to testify, consider making a brief statement on the record (outside the presence of the fact-finder) regarding the efforts made to secure their presence, or why their absence is a matter of strategy.
• Maintain a “silent record” if you are the prevailing party; do not feel obligated to help the appellant explain their trial strategy during the post-judgment phase.

Citation

R.F. v. Texas Dep’t of Family & Protective Servs., No. 03-25-00736-CV, 2026 WL [TBD] (Tex. App.—Austin Mar. 20, 2026, no pet. h.).

Full Opinion

View the full opinion here.

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