ADA Waiver in Termination Appeals: In re J.G.S. (2026)

In the Interest of J.G.S., a Child, 01-26-00103-CV, July 23, 2026.

On appeal from 315th District Court, Harris County, Texas

Synopsis

The First Court of Appeals held that an ADA-based complaint about a family service plan is an affirmative defense that must be raised in the trial court to be preserved for appellate review. The court further held that Texas Family Code section 161.001(f)’s “reasonable efforts” requirement does not excuse preservation, and it does not transform an unpreserved ADA accommodation issue into reversible error in a termination appeal.

Relevance to Family Law

Although J.G.S. arises in a termination context, its preservation analysis has implications well beyond CPS litigation. For Texas family-law litigators handling conservatorship disputes, modification cases, enforcement matters, and even some property or procedural disputes involving mental-health conditions, cognitive limitations, or other disabilities, the case is a reminder that accommodation-based complaints must be made expressly, specifically, and on the record in the trial court. More broadly, the opinion reinforces a familiar appellate reality in family law: even where fundamental parental rights are at stake, courts will not relax preservation rules simply because the underlying issue carries constitutional or disability-rights overtones.

Case Summary

Fact Summary

Mother appealed an order terminating her parental rights to J.G.S. after a trial in the 315th District Court of Harris County. The trial court terminated on endangerment grounds under Texas Family Code section 161.001(b)(1)(D) and (E), constructive abandonment under subsection (N), and best interest under section 161.001(b)(2).

On appeal, Mother argued in part that the Department failed to make reasonable accommodations in her service plan for her alleged disability. The opinion notes that the parties presented conflicting evidence concerning the scope and status of Mother’s mental-health diagnoses, but it was undisputed that the Department relied, at least in part, on allegations of untreated mental illness as part of its endangerment case. Mother had not raised an ADA accommodation complaint in the trial court. She had sought additional time to complete services, but that request was based on practical impediments—an instructor’s illness and videoconference technical problems—not on any disability-based need for accommodation.

That omission became the central appellate problem. Mother urged the First Court to revisit its longstanding decision in In re C.M., which treated ADA noncompliance as an affirmative defense that must be pleaded and proved below. She also argued that the 2023 amendments reflected in Family Code section 161.001(f) and (g), requiring written findings on the Department’s reasonable efforts to return the child, should be read to incorporate disability accommodations into the Department’s burden even absent preservation.

Issues Decided

• Whether a parent preserves an ADA reasonable-accommodation complaint in a termination appeal if the complaint was not raised in the trial court.
• Whether the First Court should reconsider In re C.M., 996 S.W.2d 269 (Tex. App.—Houston [1st Dist.] 1999, no pet.), in light of later parental-rights jurisprudence, including In re N.G.
• Whether Texas Family Code section 161.001(f) and (g) independently require the Department to provide disability accommodations as part of its reasonable-efforts obligation, such that an unpreserved ADA complaint can still support reversal.
• Whether the trial court abused its discretion in denying Mother additional time to complete her service plan.
• Whether the evidence was legally and factually sufficient to support the challenged predicate grounds and best-interest finding.

Rules Applied

The court relied on a combination of preservation doctrine, Texas termination statutes, and prior appellate treatment of ADA issues in child-protection cases.

Key authorities included:

• Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, which prohibits a public entity from excluding a qualified individual with a disability from participation in or denying the benefits of public services, programs, or activities.
• Texas Family Code section 161.001(f), which requires written findings that the Department made reasonable efforts to return the child before termination under subsection (b)(1), unless efforts were waived.
• Texas Family Code section 161.001(g), which requires specific written findings describing those reasonable efforts.
• In re C.M., 996 S.W.2d 269 (Tex. App.—Houston [1st Dist.] 1999, no pet.), holding that an ADA violation is an affirmative defense that must be pleaded and proved in the trial court.
• In re N.G., 577 S.W.3d 230 (Tex. 2019), recognizing the fundamental liberty interest implicated by termination proceedings.
• In re S.M.M., No. 01-22-00482-CV, 2022 WL 17981669, at *7 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, pet. denied) (mem. op.), noting that a service plan is often, but not exclusively, the means by which the Department establishes reasonable efforts.
• Other Texas intermediate appellate cases treating ADA noncompliance as an affirmative defense that must be preserved, including decisions from Houston [14th Dist.], Austin, Fort Worth, Eastland, Dallas, and Amarillo.

The opinion also surveyed out-of-state authority recognizing that, in some jurisdictions, ADA accommodation principles may be folded into a statutory “reasonable efforts” analysis. But the court emphasized that Texas has not enacted a statute expressly requiring disability accommodations in family service plans, and Texas authority has continued to treat ADA-based complaints as preserved-error issues.

Application

The court’s analysis was straightforward and strategically significant. Mother’s appellate argument depended on persuading the court that ADA accommodation issues should be treated differently in termination cases than ordinary affirmative defenses. She attempted that in two ways. First, she argued that because termination implicates fundamental constitutional rights, the court should depart from C.M. and allow appellate review even without a trial-court objection or pleading. Second, she argued that the Legislature’s addition of section 161.001(f) and (g) changed the analytical framework by making the Department’s “reasonable efforts” an element of its termination case, thereby subsuming any accommodation issue.

The First Court rejected both paths. It treated the preservation problem as decisive. The court noted that Mother did not raise an ADA complaint below, did not ask the trial court to require accommodations in the service plan, and did not tie her request for additional time to any disability-related need. In other words, the trial court was never asked to rule on the precise complaint being advanced on appeal.

The court then declined to read section 161.001(f) and (g) as silently abrogating preservation doctrine. Although the opinion acknowledged authorities from other states treating disability accommodations as part of an agency’s reasonable efforts toward reunification, it emphasized that Texas has not enacted a comparable statutory command. Just as important, the court observed that section 161.001(f) does not make a service plan the exclusive vehicle for proving reasonable efforts. That point undercut Mother’s effort to transform an alleged defect in the service plan into automatic reversible error under the statute.

The result is a clean doctrinal line: in Texas, an ADA challenge to reunification services remains something the parent must affirmatively present in the trial court. The Department’s burden to prove reasonable efforts does not relieve counsel of the duty to preserve disability-accommodation complaints with specificity and in real time.

Holding

The First Court held that Mother waived her complaint that the Department failed to provide reasonable accommodations under the ADA because she did not raise that complaint in the trial court. Relying on In re C.M., the court reaffirmed that an ADA-based challenge to a service plan is an affirmative defense that must be pleaded and proved below.

The court also held that Texas Family Code section 161.001(f) and (g) do not eliminate ordinary error-preservation requirements. The Department’s statutory obligation to show reasonable efforts to return the child does not convert an unpreserved ADA complaint into appellate reversible error, nor does it require the court to revisit C.M. based on In re N.G. or the 2023 statutory amendments.

In addition, the court held that the trial court did not abuse its discretion in denying Mother additional time to complete her service plan, where the extension request presented below was based on scheduling and technical obstacles rather than disability accommodation grounds.

Finally, the court affirmed the termination order because sufficient evidence supported the challenged predicate grounds and the best-interest finding.

Practical Application

For trial lawyers, J.G.S. is less about the abstract relationship between the ADA and CPS practice than about disciplined record-making. If a parent has a mental-health condition, intellectual limitation, physical impairment, or other disability affecting service-plan compliance, counsel cannot assume that the Department’s awareness of the condition will preserve a later complaint. Nor can counsel safely assume that section 161.001(f)’s reasonable-efforts language will carry the issue into the appellate record by implication.

In practice, this case should change how family lawyers approach service-plan cases from the first adversary hearing forward. If the client may need modified services, extended timelines, alternate formats, transportation adjustments, counseling tailored to cognitive limitations, or appointment structures that account for psychiatric instability, those requests should be explicit, documented, and pursued through ruling. The same logic extends beyond termination cases. In SAPCR litigation, modification proceedings, and enforcement disputes, lawyers should treat disability-related procedural barriers the same way they treat jurisdictional or evidentiary problems: identify them early, articulate the relief requested, connect the limitation to the accommodation sought, and secure a record.

Strategically, the case also gives the Department and amicus participants a clear roadmap. The Department can defend these cases by focusing on preservation first and statutory burden second. Parents’ counsel, by contrast, should no longer frame ADA issues only as generalized fairness concerns. They must be litigated as concrete, trial-level disputes over access, compliance, and reasonable modification of services. Where appropriate, counsel should also align ADA complaints with extension requests, reasonable-efforts challenges, and evidentiary attacks on noncompliance findings so that the record shows both the requested accommodation and the prejudice from its denial.

For private family lawyers outside the CPS arena, the lesson is equally useful. Courts are unlikely to create preservation exceptions merely because a case involves disability, due process, or parent-child rights. When disability affects litigation participation, possession schedules, therapy conditions, co-parenting requirements, or appointment compliance, the advocate who builds the record wins the appellate argument before it is ever written.

Checklists

Preserving an ADA Accommodation Complaint in Trial Court

• Identify the client’s disability or perceived disability early in the case.
• Determine whether the condition materially affects service-plan compliance, visitation, communication, transportation, scheduling, or participation in evaluations and classes.
• Make a specific request for reasonable accommodation on the record.
• Tie the requested accommodation to the client’s actual limitation, not merely to general hardship.
• Ask the trial court to rule on the request or on the adequacy of the service plan.
• If the Department refuses or fails to accommodate, object clearly and obtain a ruling.
• Re-urge the complaint as circumstances develop rather than assuming one request is enough.
• Include the issue in written motions, status-hearing presentations, and trial objections.
• Preserve the argument in any motion for continuance or extension by expressly connecting the need for more time to the disability and the requested accommodation.
• Make an offer of proof if the court limits evidence relevant to the accommodation issue.

Building a Record on Reasonable Efforts Under Section 161.001(f)

• Examine whether the Department’s reunification efforts were individualized to the parent.
• Compare each service-plan requirement to the parent’s actual capacities and limitations.
• Develop testimony showing what services were offered, when, in what format, and with what support.
• Elicit evidence on whether alternative providers, remote options, modified curricula, or transportation assistance were available.
• Distinguish mere noncompliance from noncompliance caused by inaccessible services.
• Ask the caseworker to explain how the Department assessed and addressed disability-related barriers.
• Force specificity on the Department’s written findings and proof concerning “reasonable efforts.”
• Preserve the argument that the Department’s efforts were not reasonable even if a formal ADA claim is disputed.

Drafting and Litigating Extension Requests

• Do not rely solely on logistical problems such as scheduling or technical issues if disability-related barriers are also present.
• State expressly that the requested extension is tied to disability accommodation needs, if that is the basis.
• Attach supporting records, provider letters, evaluations, or testimony where available.
• Explain why the accommodation or additional time would likely permit meaningful completion of services.
• Request modified tasks or alternative service providers in addition to more time.
• Obtain a ruling that addresses both the extension and the accommodation theory.

Advising Clients in CPS and SAPCR Cases

• Explain that appellate courts generally will not review unpreserved complaints, even in high-stakes parental-rights litigation.
• Tell the client that disclosure of limitations to counsel is essential if services need modification.
• Document attendance problems, medication issues, transportation barriers, technology problems, and literacy or comprehension concerns as they arise.
• Encourage prompt communication when the client cannot complete a task because of a disability-related limitation.
• Avoid allowing the record to portray an accommodation problem as simple refusal or indifference.

Department-Facing Defensive Checklist

• Evaluate early whether the parent may qualify for ADA protections.
• Document efforts to identify and address barriers to service participation.
• Offer alternate formats, providers, scheduling options, or referral structures where appropriate.
• Respond in writing to accommodation requests.
• Clarify in the record whether an extension request is based on disability, logistics, or both.
• Preserve a clean argument that no ADA complaint was raised if that is true.
• Prove reasonable efforts with evidence broader than mere existence of a service plan.

Citation

In the Interest of J.G.S., a Child, No. 01-26-00103-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Houston [1st Dist.] July 23, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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