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In the Interest of M.S., a Child v. the State of Texas

2026-10-06

Authorities cited

Opinion

majority opinion

In The

Court of Appeals

Seventh District of Texas at Amarillo

No. 07-26-00219-CV

IN THE INTEREST OF M.S., A CHILD

On Appeal from the County Court at Law No. 2

Lubbock County, Texas

Trial Court No. DC-2025-FM-1380, Honorable Kara L. Darnell, Presiding

October 6, 2026

MEMORANDUM OPINION

Before PARKER, C.J., and DOSS and PRATT, JJ.

Appellant (Mother), biological mother of M.S., appeals the trial court’s judgment by

which their parent-child relationship was terminated. On appeal, she challenges the legal

and factual sufficiency of the evidence to support the trial court’s findings as required

under sections 161.001(b)(1)(N) and 161.001(f). Specifically, she argues the Department

of Family and Protective Services (the Department) failed to prove (1) their reasonable

efforts to return M.S. to her mother; (2) Mother knowingly failed to maintain significant

contact with M.S.; and (3) a continuing danger remained in Mother’s home. We sustain

her challenge, reverse the trial court’s judgment of termination, and render judgment

denying termination on the grounds of constructive abandonment.

BACKGROUND

M.S. was born June 24, 2025. On June 27, 2025, concerned about Mother’s

mental health, the Department removed M.S. from Mother’s care while she was still in the

hospital and placed her in the care and custody of her maternal grandparents, who have

prepared to adopt her. Ultimately, the Department sought termination of Mother’s

parental rights under several predicate grounds outlined in the Texas Family Code. See

TEX. FAM. CODE § 161.001(b)(1).

A final hearing on the allegations commenced on April 2, 2026. One witness—

Department permanency specialist Erin Quinstedt—testified at the hearing, the record of

which consists of thirty-five pages of her testimony. Quinstedt indicated that she was in

frequent contact with the maternal grandparents throughout this case. Quinstedt testified

that although she made multiple attempts to communicate with Mother from July 8, 2025,

to mid-September 2025, she only had one conversation with Mother. During that contact,

Quinstedt testified, she spoke with Mother about what her family service plan might look

like, though one had not been created at that point. Mother told her that she was living in

Spur, Texas. Quinstedt described Mother as inclined to participate or complete services

at that time.

Regarding any further communication beyond this first exchange, Quinstedt

explained, “I did attempt to.” From this, we understand the record to establish that there

was only one meaningful communication between the Department and Mother. Quinstedt

testified that she made efforts to respond to Mother’s text messages, but those exchanges

were not productive. From the same phone number she maintained throughout the case,

Mother would send lengthy text messages to Quinstedt, often expressing Mother’s

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suspicions of a conspiracy. Despite Quinstedt’s attempts to redirect the exchange, it does

not appear these exchanges resulted in meaningful communication. It appears the

Department arranged one visitation, which Mother did not attend.

Quinstedt testified that the Department eventually developed a family service plan.

The trial court issued its Order for Actions for the Return of the Child on July 9, 2025.

However, Quinstedt confirmed that she never spoke with Mother about the family service

plan and never discussed the specific requirements of the plan such that Mother could

know what was expected of her under the plan. Mother never signed the plan and there

is nothing in the record to suggest she ever received a copy of the plan. The trial court,

on Mother’s objection, excluded the Department’s service plan from evidence.

Quinstedt testified that the Department service plan was tailored to Mother’s

mental health needs, specifically including the directives to follow the providers’

recommendations after her discharge from Oceans Behavioral Hospital of Lubbock.

Mother completed a mental health program at Oceans, and the facility sent the

Department its recommendations for Mother’s ongoing care. The Department confirmed

it had received those recommendations, but apparently, the Department did nothing in

response to having received them.

When asked why she thought it was in M.S.’s best interest to terminate the parentchild relationship, Quinstedt cited Mother’s lack of participation in services and Mother’s

failure to benefit from them, continuing to emphasize Mother’s mental health: “She still is

suffering from severe mental illness and doesn’t have stability for even herself and so I

don’t think that she is able to provide a safe and stable home for either of them.”

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At the end of the hearing, the trial court found that clear and convincing evidence

supported termination on the grounds of constructive abandonment. See TEX. FAM. CODE

§ 161.001(b)(1)(N).

STANDARDS OF REVIEW

A parent’s right to the “companionship, care, custody, and management” of his or

her child is a constitutional interest “far more precious than any property right.” Santosky

v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). We strictly scrutinize termination proceedings

and strictly construe the involuntary termination statutes in favor of the parent. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural parents are not

absolute” and “[t]he rights of parenthood are accorded only to those fit to accept the

accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re

J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)).

Pursuant to the Texas Family Code, to terminate parental rights, the Department

has the burden to prove by clear and convincing evidence: (1) one of the predicate

grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the

child. TEX. FAM. CODE § 161.001(b). Recognizing that a parent may forfeit his or her

parental rights by his or her acts or omissions, the primary focus of a termination suit is

protection of the child’s best interests. See id. Parental rights are not absolute, and it is

essential that the emotional and physical interests of a child are not sacrificed merely to

preserve those rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

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In reviewing for legal sufficiency, we look at all the evidence in the light most

favorable to the finding to determine whether a reasonable trier of fact could have formed

a firm belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344–

45 (Tex. 2009). In reviewing for factual sufficiency, we give due consideration to evidence

that the factfinder could reasonably have found to be clear and convincing. In re C.H., 89

S.W.3d 17, 27 (Tex. 2002). If, considering the entire record, the disputed evidence that

a reasonable factfinder could not have credited in favor of the finding is so significant that

a factfinder could not reasonably have formed a firm belief or conviction, then the

evidence is factually insufficient. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

The clear and convincing evidence standard does not mean the evidence must

negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,

902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall

that the trier of fact has the authority to weigh the evidence, draw reasonable inferences

therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the

right to resolve credibility issues and conflicts within the evidence and may freely choose

to believe all, part, or none of the testimony espoused by any witness. Id. Where

conflicting evidence is present, the factfinder’s determination on such matters is generally

regarded as conclusive. In re I.O., 645 S.W.3d 895, 903 (Tex. App.—Amarillo 2022).

APPLICABLE LAW

Under Texas Family Code, the Department must prove that the parent

constructively abandoned the child by showing the following elements:

1. the child has been in the Department’s permanent or temporary managing

conservatorship for at least six months;

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2. the Department made reasonable efforts to return the child to the parent;

3. the parent has not regularly visited or maintained significant contact with the

child; and

4. the parent has demonstrated an inability to provide the child with a safe

environment.

TEX. FAM. CODE § 161.001(b)(1)(N). Here, Mother challenges only the “reasonable efforts

to return” element. This element focuses on what the Department did or did not do to

facilitate return of the child to the parent. See In re F.E.N., 542 S.W.3d 752, 766 (Tex.

App.—Houston [14th Dist.] 2018, pet. denied). That is to say, the Department cannot rely

only on the parent’s failures or shortcomings; it must show some meaningful reunification

effort. See id.

By Mother’s second and third issues, she challenges the trial court’s related

findings under subsections (f) and (g) of section 161.001. Under subsections (f) and (g),

the trial court must explicitly find by clear and convincing evidence, and detail in a

separate section of the order, that the Department “made reasonable efforts to return the

child to the parent before commencement of a trial on the merits” and that “despite those

reasonable efforts, a continuing danger remains in the home.” D.F. v. Tex. Dep’t of Fam.,

731 S.W.3d 726, 741 (Tex. App.—Austin 2026, no pet.). While section 161.001(b)(1)(N)

contains its own independent statutory element requiring proof that the Department made

“reasonable efforts” to return the child, the relatively new section 161.001(f) acts as an

overarching statutory limitation that bars a trial court from ordering termination under any

ground in section 161.001(b)(1)(N) unless the trial court makes these heightened, specific

written findings regarding those reasonable efforts and continuing danger. See id. We

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consider the same evidence when evaluating reasonable efforts to return under either

provision. See id. at 742.

We generally consider implementation of a family service plan by the Department

a primary method of demonstrating reasonable efforts to return a child to the parent. See

In re N.R.T., 338 S.W.3d 667, 674 (Tex. App.—Amarillo 2011, no pet.); see also In re

K.S.G., No. 07-23-00452-CV, 2024 Tex. App. LEXIS 1947, at *6 (Tex. App.—Amarillo

Mar. 19, 2024, pet. denied) (mem. op.); In re A.L.H., 468 S.W.3d 738, 744 (Tex. App.—

Houston [14th Dist.] 2015, no pet.). In determining whether the evidence is sufficient to

support termination under subsection (N), the question is whether the Department made

reasonable efforts, not ideal efforts. Id. at 766–67 (citing In re G.K.G.A., No. 01-16-00996-CV, 2017 Tex. App. LEXIS 5071, at *14 (Tex. App.—Houston [1st Dist.] June 1, 2017,

pet. denied) (mem. op.)).

We look to the record before us with these principles in mind and analyze the

Department’s actions to discern its efforts established by the record evidence.

SERVICE PLAN

Again, the implementation of a family plan of service often can serve to fulfill the

Department’s duty to undertake reasonable efforts to return the child to the parent. See

In re N.R.T., 338 S.W.3d 667, 674 (Tex. App.—Amarillo 2011, no pet.). Here, however,

the evidence concerning the Department’s family service plan is tenuous, at best.

The evidence establishes that, prior to the creation of Mother’s specific plan, the

Department spoke with Mother concerning what a family service plan would look like.

The Department then created a family service plan for Mother. However, the record also

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reveals that the Department failed to discuss the completed plan with Mother. Nothing in

the record suggests the Department undertook any measure to ensure that Mother

understood what was expected of her under the plan. See In re F.E.N., 542 S.W.3d at

767. Mother did not sign the plan, and from the record before us, we cannot be certain

that she ever received the service plan. See id. When the trial court sustained Mother’s

objection to the admission of the service plan, the Department withdrew its proffer, and it

was not admitted into evidence.

COMMUNICATION

Similarly, the Department’s lack of communication regarding the family service

plan is evident in the Department’s general efforts at contacting Mother. Quinstedt

testified that Mother maintained the same phone number throughout the proceeding. She

added that she had received long, rambling texts from Mother from that number.

Quinstedt attempted to redirect the text exchange, but, it appears, she failed.

The record reveals that Quinstedt had only one meaningful exchange with Mother

from July 8, 2025, to mid-September 2025. In mid-September, by her own testimony,

Quinstedt ceased any attempts at further communication. It appears that all

communication with and by the Department ceased at that time, about seven months prior

to trial. Again, Quinstedt testified that she understood Mother had kept the same phone

number throughout the duration of the case. So, for seven months, the Department had

a means of contacting Mother but, from the record evidence, did not attempt to do so.

So, Mother contacted the Department and the Department confirmed that it knew

how to contact Mother during the entirety of the case. The fact that Mother’s mental

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health concerns may have contributed to difficulty in maintaining a direct exchange of

information does not excuse the Department from attempting to do so. Reasonable

efforts, given the Department’s knowledge that Mother was undergoing mental health

treatment, required the Department to take extra care in explaining and clarifying what

Mother was required to do under the Department’s plan.

VISITATION

We continue our analysis with an evaluation of the Department-created visitation

plan for Mother. The record does not show that Mother was ever provided with this plan

or that she was aware of any plan. The Department’s visitation plan anticipated at least

two supervised visitations per week, up to one hour long each, depending on the needs

of the infant. Quinstedt testified that she had arranged one visitation with Mother. Mother,

however, failed to attend that visitation. There is no other evidence concerning the

Department’s efforts to foster any other visitation per its visitation plan. See In re F.E.N.,

542 S.W.3d at 767 (in concluding insufficient evidence supported the finding of

reasonable efforts to return, noting that the Department made no attempt to resume

visitation despite father’s compliance with conditions for visitation). Given the failure to

maintain regular contact with Mother throughout the case, one attempt to arrange

visitation with Mother is inadequate.

MOTHER’S MENTAL HEALTH CARE

Mother’s mental health was a key factor in original removal of M.S. Thus, the

service plan was tailored to Mother’s mental health needs. Mother completed a mental

health program at Oceans. However, Quinstedt was unsure whether Mother undertook

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that step voluntarily or involuntarily, meaning that her treatment lends very little to whether

Mother was ever aware of the service plan’s requirements in that vein. Quinstedt further

testified that the Department received a copy of specific recommendations Oceans made

for Mother’s continuing mental health care. According to Quinstedt, recommendations

included maintaining medication compliance and continuing outpatient counseling. The

record does not reveal whether Mother undertook these recommended steps or whether

the Department made any attempt to communicate with Mother about her progress.

The Department failed to undertake any effort to confirm that Mother was following

those recommendations or that Mother was even aware of those recommendations.

Reasonable efforts on the Department’s part, especially since its concern from the outset

of the case was Mother’s mental health, would surely include some efforts at coordinating

continuing care for Mother, documenting or confirming that she understood what she

needed to do in terms of addressing her mental health, and following up with her or her

care providers about her progress. See In re K.J.T.M., No. 06-09-00104-CV, 2010 Tex.

App. LEXIS 3057, at *13 n.12 (Tex. App.—Texarkana Apr. 27, 2010, no pet.) (mem. op.)

(describing the reasonableness of the Department’s return efforts to be a “sliding scale,

depending on the situation”). This is not an instance in which a parent disappeared or

was wholly unreachable or did nothing to address the cause for removal; Mother

completed a mental-health program—thereby addressing the core concern the

Department held—and that provider communicated with the Department regarding future

care. In response, it appears from the record, the Department did nothing. Quinstedt

acknowledged that the recommendations were placed in the case file but explained, “I

don’t know for how long or which recommendations she was possibly following.”

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HOME VISITS BY THE DEPARTMENT

Quinstedt testified that she tried to schedule a home visit. She testified Mother

would not participate in scheduling a home visit, so Quinstedt was unable to schedule

one. Quinstedt talked with Mother’s father and understood that Mother was no longer

living at the house and had moved into “an airport shuttle van” in Anton, Texas. Quinstedt

did not investigate whether this information was accurate and did not testify to any further

attempts to contact Mother or confirm her living situation.

PLACEMENT OF CHILD

Since her removal, M.S.’s maternal grandparents have cared for her. At time of

trial, the child remained in their care, and the grandparents had been approved for a

license to adopt. Quinstedt testified that the maternal grandparents have some contact

with Mother, but she did not provide details of the nature of that contact. Neither

grandparent testified at trial to elaborate on that topic or to clarify whether Mother would

be permitted any type of contact with the child.

The fact that the child was placed with her maternal grandparents is relevant here,

but it is not dispositive. Nor is it incredibly helpful to the Department given that Mother

was not incarcerated. See In re K.S.G., 2024 Tex. App. LEXIS 1947, at *6–7 (“Physically

returning the child to an incarcerated parent is not necessarily required; placement with

a family member or friend may fulfill the Department’s burden to return the child to the

parent.”); In re D.S.A., 113 S.W.3d 567, 573–74 (Tex. App.—Amarillo 2003, no pet.)

(discussing relative placement as it relates to Department’s reasonable efforts to return

child when a parent is incarcerated). It does not, by itself, satisfy the Department’s duty

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to make reasonable efforts to return the child to Mother, when Mother was not

incarcerated, Mother was getting health care (seemingly without the aid or involvement

of the Department), and the Department was able to contact Mother by phone at any time.

The record does reveal that Mother proposed an alternate placement because she

did not want the child in grandparents’ care. Quinstedt testified that she tried to contact

the proposed caretaker and that she missed a return phone call from the proposed

caretaker. Quinstedt never spoke with the proposed caretaker, and there appears to have

been no further investigation into the proposed caretaker’s suitability.

In sum, while the Department’s failure to implement a service plan was not in itself

fatal here, we find very little other efforts the Department made in furtherance of returning

M.S. to Mother. Cf. In re A.R., No. 07-19-00403-CV, 2020 Tex. App. LEXIS 2584, at *9

(Tex. App.—Amarillo Mar. 26, 2020, pet. denied) (mem. op.) (noting that evidence did not

show “the degree of implementation of service plan terms typically seen in cases in which

the Department relies on a service plan for its reasonable efforts,” but outlining additional

efforts by the Department, including ongoing communication and provision of parenting

materials and information concerning services available in prison, as “reasonable

efforts”); In re K.C., No. 07-18-00282-CV, 2018 Tex. App. LEXIS 10774, at *7–10 (Tex.

App.—Amarillo Dec. 21, 2018, pet. denied) (mem. op.) (also noting lesser degree of

implementation of service plan but finding other efforts by the Department, including

“uncommon step” of initiating mediation before final hearing, were reasonable efforts to

return child).

The Texas Family Code requires clear and convincing evidence that the

Department made reasonable efforts to return the child to the parent. Here, the

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Department appears to have made perfunctory efforts or perhaps half measures to return

the child to Mother. The record before us does not show by clear and convincing evidence

that the Department made reasonable efforts to return M.S. to Mother. See In re F.E.N.,

542 S.W.3d at 767. In accordance with the heightened standard of review that results

from this heightened burden of proof, we find the evidence presented at trial is insufficient

to support the trial court’s conclusion that the Department undertook reasonable efforts

to return M.S. to Mother. See In re A.L.H., 468 S.W.3d at 745–46.

We sustain Mother’s first issue; our doing so pretermits the need to address her

second and third issues. See TEX. R. APP. P. 47.1.

CONCLUSION

Accordingly, we reverse the trial court’s judgment and render judgment denying

the Department’s petition seeking to terminate Mother’s parental rights to her child, M.S.

That portion of the trial court’s judgment in which the Department was named managing

conservator pursuant to section 153.131(a) of the Texas Family Code was not challenged

on appeal and is hereby affirmed.

Laura A. W. Pratt

Justice

Doss, J., concurring.

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