Section 161.001(b)(1)(M) Due Process Preservation Cannot be Raised on Appeal for the First Time| In re A.M. (2026)

In the Interest of A.M., a Child, 07-26-00234-CV, September 30, 2026.

On appeal from County Court at Law Number 1, Potter County, Texas

Synopsis

A parent may not raise an unpreserved due-process challenge to termination under Texas Family Code § 161.001(b)(1)(M) for the first time on appeal. Even when fundamental parental rights are at stake, ordinary error-preservation rules apply, and an unchallenged subsection (M) finding can independently support termination when best interest is established.

Relevance to Family Law

In re A.M. reinforces two preservation principles important throughout Texas family-law litigation. First, counsel must timely present constitutional objections to the trial court and obtain a ruling; the fundamental nature of the rights involved does not ordinarily permit a party to bypass preservation requirements. Second, in a parental-termination appeal, counsel must specifically challenge findings under § 161.001(b)(1)(D) and (E) because those findings can later become an independent basis for terminating rights to another child under subsection (M).

Although the decision arises from a termination proceeding, its preservation lesson extends to divorce, conservatorship, possession, support, and marital-property litigation. Constitutional complaints concerning notice, the opportunity to be heard, evidentiary procedures, property deprivation, or restrictions on parental decision-making should be stated specifically and timely in the trial court. Counsel should not assume that characterizing an issue as “due process” or invoking a fundamental right will permit first-time appellate review.

Case Summary

Fact Summary

The Department of Family and Protective Services sought termination of Mother’s parental rights to A.M. under multiple predicate grounds, including Texas Family Code § 161.001(b)(1)(M). Subsection (M) permits termination when a parent previously had parental rights to another child terminated based on findings under subsection (D) or (E).

In an earlier case concerning A.M.’s sibling, D.M., the trial court terminated Mother’s rights under subsections (D), (E), (L), and (O). Mother appealed that judgment but did not specifically challenge the subsection (D) and (E) findings. The Seventh Court of Appeals therefore treated those findings as binding and affirmed the prior termination order.

Those findings became consequential in the later proceeding involving A.M. The Department introduced a certified copy of the prior termination order to establish subsection (M).

The Department also presented evidence concerning Mother’s ability to protect A.M. Mother lived with several adults who had CPS or criminal histories, and those adults declined to cooperate with the Department. Of particular concern, Mother intended to continue her relationship with a boyfriend who had been indicted for sexual assault of a child. Mother did not consider the household members’ histories to present a safety problem.

The evidence was not uniformly adverse to Mother. She maintained employment and stable housing, consistently tested negative for drugs, communicated with the caseworker, participated in services, and sought counseling. The physical condition of her residence was appropriate. The Department’s central concern, however, was her failure to recognize and address risks to A.M., who was nonverbal and had significant medical and developmental needs.

At trial, Mother did not argue that applying subsection (M) violated the United States or Texas Constitution. She raised that due-process theory for the first time on appeal. She also did not challenge the evidentiary sufficiency of the subsection (M) finding, although she challenged termination under subsection (L)(ix).

Issues Decided

• Whether Mother could raise for the first time on appeal a due-process challenge to termination under Texas Family Code § 161.001(b)(1)(M).

• Whether the unchallenged subsection (M) finding independently supported the predicate-ground requirement for termination.

• Whether the court needed to address Mother’s sufficiency challenge to the alternative subsection (L)(ix) finding after upholding subsection (M).

Rules Applied

Texas Family Code § 161.001(b) requires clear and convincing evidence of at least one statutory predicate ground and that termination is in the child’s best interest. Only one valid predicate ground is ordinarily necessary to support termination when the best-interest requirement has also been met.

Section 161.001(b)(1)(M) authorizes termination when the parent has previously had parental rights to another child terminated based on a finding under subsection (D) or (E). A certified prior termination order containing the requisite findings can establish subsection (M) as a matter of law.

Under In re N.G., 577 S.W.3d 230, 234, 237 (Tex. 2019) (per curiam), subsection (D) and (E) findings carry serious collateral consequences because they can support termination concerning another child under subsection (M). When properly challenged on appeal, those findings generally require appellate review even if another predicate ground would otherwise support the judgment.

Nevertheless, ordinary error-preservation requirements apply in parental-termination cases. Under In re B.L.D., 113 S.W.3d 340, 349–55 (Tex. 2003), the importance of parental rights does not categorically excuse a party from presenting a constitutional complaint to the trial court. In re L.M.I., 119 S.W.3d 707, 708 (Tex. 2003), likewise emphasizes that preservation rules serve critical purposes in termination proceedings, including finality and expedited resolution.

Application

Mother conceded that she had not presented her constitutional challenge to the trial court. She argued that the private interest in the parent-child relationship, the governmental interests involved, and the risk of erroneous deprivation justified appellate consideration despite the lack of preservation.

The court rejected that position. It began with the presumptions that statutes are constitutional and that civil error-preservation rules comport with due process. Relying on In re B.L.D. and In re L.M.I., the court reasoned that the magnitude of the interests in a termination case makes preservation more—not less—important. Reviewing a constitutional theory never presented to the trial court would deprive that court of the opportunity to address the complaint and would undermine the Legislature’s interest in prompt and final resolution of termination proceedings.

The court also emphasized the procedural consequences of Mother’s prior appeal. The earlier termination order contained subsection (D) and (E) findings, but Mother had not specifically challenged those findings in that appeal. Those findings consequently remained operative and supplied the statutory foundation for subsection (M) in the proceeding concerning A.M.

In the present appeal, Mother did not challenge the legal or factual sufficiency of the subsection (M) finding. The Department introduced a certified copy of the earlier termination order reflecting the necessary subsection (D) and (E) findings. That evidence established subsection (M) without requiring the appellate court to reweigh the circumstances underlying the prior judgment.

Because subsection (M) independently satisfied the predicate-ground requirement, the court did not reach Mother’s challenge to the alternative subsection (L)(ix) finding.

Holding

Mother failed to preserve her federal and state due-process challenge to § 161.001(b)(1)(M) because she did not present the constitutional complaint to the trial court. The fundamental nature of parental rights did not excuse compliance with ordinary preservation requirements.

The subsection (M) finding remained binding because Mother did not challenge its evidentiary sufficiency on appeal. The Department’s certified copy of the prior termination order, which reflected the necessary subsection (D) and (E) findings, established subsection (M).

Because one predicate ground was sufficient to support termination, the court did not decide Mother’s sufficiency challenge to subsection (L)(ix). The court affirmed the termination order.

Practical Application

For termination practitioners, In re A.M. requires strategic attention at two distinct stages. In the first termination case, counsel must separately challenge subsection (D) and (E) findings when there is a good-faith basis to do so. A successful challenge to another predicate ground does not eliminate the future consequences of an unchallenged subsection (D) or (E) finding. Those findings may later establish subsection (M) as to another child.

In a subsequent subsection (M) case, counsel should evaluate both the evidentiary foundation and any constitutional objection before trial. If counsel contends that subsection (M) is unconstitutional as applied, the argument should identify the specific constitutional provision, explain the alleged procedural or substantive deprivation, and be presented early enough for the trial court to correct or avoid the asserted error. Counsel must also obtain a ruling or preserve the court’s refusal to rule.

For conservatorship and possession litigation, the same discipline applies to constitutional objections involving parental autonomy, restrictions on access, geographic limitations, or third-party claims. The objection should identify why the particular order or procedure infringes a protected interest and why the governing statutory and evidentiary safeguards are inadequate.

In divorce and property cases, due-process complaints may arise from inadequate notice, trial by ambush, disposition of property outside the pleadings, denial of a meaningful opportunity to present evidence, or entry of sanctions affecting property rights. Those complaints should be made when the trial court can still cure the alleged defect. Raising the constitutional label for the first time in an appellate brief will ordinarily be too late.

The decision also counsels against focusing an appeal on only one of several independent grounds. Appellate counsel should map every finding capable of sustaining the judgment or producing collateral consequences, then assign error to each finding that can responsibly be challenged.

Checklists

Preserving a Constitutional Challenge

• Identify whether the challenge is facial or as applied.

• Specify the constitutional provision at issue, including whether the claim arises under the United States Constitution, the Texas Constitution, or both.

• Explain the particular procedure, ruling, or statutory application alleged to violate due process.

• Raise the objection before or when the challenged action occurs, not for the first time after judgment.

• Present supporting authority and, when appropriate, evidence establishing the as-applied record.

• Request a specific ruling from the trial court.

• If the court refuses to rule, object to that refusal.

• Renew the complaint in a post-judgment motion when necessary to address the final order or develop the record.

• Ensure that the reporter’s record and clerk’s record contain the objection, supporting materials, and ruling.

Litigating Subsection (M)

• Obtain a certified copy of the prior termination order.

• Confirm that the prior order terminated the parent’s rights to another child.

• Verify that the prior order expressly includes a subsection (D) or (E) finding.

• Determine whether the prior judgment is final and whether any appeal remains pending.

• Review the prior appellate proceeding to determine whether the subsection (D) and (E) findings were challenged.

• Object to authentication, admissibility, or statutory deficiencies in the prior order when supported by the record.

• Separately challenge the sufficiency of the evidence supporting subsection (M) if a viable basis exists.

• Preserve any constitutional challenge to subsection (M) in the trial court.

• Address best interest independently; proof of a predicate ground does not eliminate the Department’s best-interest burden.

Protecting the Record in the First Termination Appeal

• List every predicate ground found by the trial court.

• Identify all subsection (D) and (E) findings because of their collateral consequences.

• Assign error separately to subsection (D) and (E) findings when a nonfrivolous challenge exists.

• Do not assume that reversal or insufficiency under another predicate ground will neutralize subsection (D) or (E).

• Request merits review of properly challenged subsection (D) and (E) findings under In re N.G.

• Verify that the appellate prayer requests appropriate relief from each challenged finding.

Auditing a Family-Law Appeal for Independent Grounds

• Identify every independent ground capable of sustaining the judgment.

• Identify findings that may create collateral consequences in later proceedings.

• Challenge each dispositive ground for which the record and law provide a good-faith basis.

• Distinguish complaints preserved in the trial court from complaints raised only after judgment.

• Confirm that each appellate issue corresponds to a timely, specific trial-court request, objection, or motion.

• Explain preservation in the appellate brief with accurate record citations.

• Avoid devoting the appeal exclusively to an alternative ground when an unchallenged finding independently supports the judgment.

Citation

In re A.M., No. 07-26-00234-CV (Tex. App.—Amarillo Sept. 30, 2026, no pet. h.).

Full Opinion

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