In the Interest of P.S.-S., a Child

In the Interest of P.S.-S., a Child, 07-26-00227-CV, November 02, 2026.

On appeal from 237th District Court, Lubbock County, Texas

Synopsis

Prolonged incarceration, combined with limited efforts to preserve the parent-child relationship and no workable plan for the child’s care, supported the trial court’s best-interest finding under Texas Family Code section 161.001(b)(2). Although incarceration alone does not establish best interest, the father’s uncertain plans contrasted with the child’s stable, adoption-oriented placement with a relative who was meeting her needs.

Relevance to Family Law

This opinion is directly relevant to termination and custody litigation involving an incarcerated parent. It confirms that counsel must develop best-interest evidence independently from evidence supporting a predicate termination ground; an unchallenged predicate finding does not eliminate the Department’s burden under section 161.001(b)(2). In divorce and conservatorship proceedings, the same practical considerations—duration of incarceration, quality of parental contact, available family support, realistic release dates, and the stability of competing care arrangements—may affect conservatorship, possession, access, and protective restrictions, although those proceedings employ different standards and burdens of proof.

The opinion has less direct application to marital-property disputes. Incarceration and parental disengagement do not determine characterization or division of property, but related evidence may affect ancillary issues such as support, reimbursement claims, enforcement, the feasibility of proposed possession arrangements, and the credibility of a party’s broader litigation positions. Practitioners should avoid treating a termination best-interest analysis as a substitute for the statutory standards governing a just-and-right division.

Case Summary

Fact Summary

The father first met the child when she was approximately two years old, after DNA testing established his paternity. He paid child support and had supervised contact with her during an earlier Department investigation involving the mother. The Department had placed the child with the paternal grandmother and restricted the father to supervised visits because of his marijuana use.

In June 2020, the father killed his sister’s former boyfriend. The child was not present. The father was incarcerated in February 2023 and later pleaded guilty to manslaughter, receiving a ten-year sentence. His earliest parole eligibility date was February 2028, while his projected release date was February 2033, when the child would be fourteen.

The Department removed the child from her mother in September 2024 after a younger half-sibling tested positive for cocaine at birth. The father was already incarcerated and did not cause the circumstances precipitating removal.

The Department prepared a service plan that accounted for the father’s confinement. Beginning in May 2025, the caseworker visited him monthly, provided parenting materials, photographs, and updates, and offered to deliver letters and cards to the child. The father did not return completed parenting packets or send correspondence through the caseworker. Although he initially claimed that he had completed the packets, he conceded on cross-examination that he had not. He testified that his custodial classification prevented him from attending parenting classes and that he had sent approximately two letters and a birthday message through other channels.

The father proposed his mother as a possible placement. The caseworker testified that the grandmother did not respond to the Department’s inquiries, although the father disputed that testimony. His longer-term plan was to obtain employment, maintain sobriety, and care for the child with family assistance after his release.

The child initially lived with a maternal aunt and then moved with her younger sister into a maternal uncle’s home. Although that placement was relatively recent at the time of trial, the uncle had maintained regular contact with the children throughout the case. The evidence showed that the child was happy, bonded with her uncle, and receiving appropriate care. The uncle intended to adopt both sisters. The caseworker, attorney ad litem, and guardian ad litem recommended termination.

The trial court found predicate grounds under Texas Family Code sections 161.001(b)(1)(E) and (N) and found that termination was in the child’s best interest. The father challenged only the legal and factual sufficiency of the best-interest finding.

Issues Decided

• Whether legally sufficient evidence permitted a reasonable factfinder to form a firm belief or conviction that termination was in the child’s best interest under Texas Family Code section 161.001(b)(2).
• Whether, after considering the entire record, the contrary evidence was so significant that the factfinder could not reasonably have formed a firm belief or conviction that termination was in the child’s best interest.
• Whether the father’s prolonged incarceration, limited contact, incomplete services, and uncertain post-release plans could support the best-interest finding when considered with the child’s stable and adoption-oriented relative placement.

Rules Applied

Texas Family Code section 161.001(b) requires clear and convincing evidence of both a statutory predicate ground and that termination is in the child’s best interest. These are separate requirements. Proof of a predicate ground does not automatically establish best interest. In re H.S., 741 S.W.3d 4, 23–24 (Tex. 2026).

For legal sufficiency, the reviewing court considers the evidence in the light most favorable to the finding and asks whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. The court defers to reasonable credibility determinations but may not disregard undisputed contrary evidence. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re H.S., 741 S.W.3d at 17.

For factual sufficiency, the court considers the entire record and determines whether disputed contrary evidence is so significant that the factfinder could not reasonably have formed the required firm belief or conviction. In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

The best-interest analysis includes the nonexclusive factors identified in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976), and Texas Family Code section 263.307(b). Relevant considerations include the child’s desires and needs, present and future dangers, parental abilities, available programs, competing plans, placement stability, the parent’s acts or omissions, and any explanation for those acts or omissions.

The law presumes that preservation of the parent-child relationship serves the child’s best interest, but it also favors prompt and permanent placement in a safe environment. Tex. Fam. Code § 263.307(a); In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam).

Finally, incarceration alone does not establish that termination is in a child’s best interest. Tex. Department of Human Services v. Boyd, 727 S.W.2d 531, 533–34 (Tex. 1987). Prolonged incarceration and limited parental involvement may nevertheless contribute to a best-interest finding when assessed with the complete record.

Application

The court began by acknowledging the evidence favoring preservation of the father’s rights. He did not cause the Department’s removal of the child, his criminal conduct did not involve the child, and the record did not show that he had physically harmed her. He established paternity, paid support, previously exercised supervised contact, and testified that he had sent a small number of messages. There was also evidence that the mother had interfered with the relationship. His incarceration, standing alone, could not satisfy the best-interest requirement.

The court nevertheless concluded that the trial court could assign substantial weight to the practical consequences of the father’s incarceration. By trial, he had been incarcerated for more than three years. His earliest possible parole date remained nearly two years away, and parole was uncertain. His projected release date would keep him confined until the child was fourteen. Thus, he could not offer present care or near-term permanence.

The father’s conduct during the case also informed the analysis. Despite monthly visits from the caseworker and repeated offers to deliver correspondence, he sent no letters through her. He did not complete the parenting packets she provided. Although his custodial classification may have prevented participation in formal classes, it did not explain his failure to use the alternative materials made available to him. The trial court could treat that failure as evidence concerning his willingness and ability to improve his parenting skills and maintain the relationship.

The competing plans further supported the judgment. The father’s proposal depended on parole, future employment, continued sobriety, family assistance, and a future ability to assume care. His suggested placement with the paternal grandmother was not shown to be workable because the trial court could credit the caseworker’s testimony that the grandmother failed to respond to Department inquiries.

By contrast, the child was receiving appropriate care from a maternal uncle with whom she already had a relationship. She was happy and bonded in the home, remained placed with her younger sister, and had the prospect of adoption by the uncle. The court recognized that a favorable placement or prospective adoption cannot independently justify termination. Here, however, placement stability was considered with the father’s prolonged inability to provide care, limited efforts to maintain the relationship, and speculative reunification plan.

Holding

The Seventh Court of Appeals held that the evidence was legally sufficient to support the best-interest finding. Viewed in the light most favorable to the judgment, the evidence permitted a reasonable factfinder to form a firm belief or conviction that termination served the child’s best interest.

The court also held that the evidence was factually sufficient. After considering the father’s prior involvement, explanations for incomplete services, possible parole, asserted family support, lack of responsibility for the removal, and the relatively recent placement with the uncle, the contrary evidence was not so significant that it prevented the trial court from forming the required firm belief or conviction.

The court did not hold that incarceration itself established best interest. Rather, it held that prolonged incarceration could be considered with the parent’s limited relationship-maintenance efforts, inability to provide timely permanence, uncertain future plans, and the child’s stable, adoption-oriented placement. The trial court’s termination order was affirmed.

Practical Application

For the Department or a petitioner seeking termination, this case illustrates the need to build a best-interest record beyond the fact of incarceration. Evidence should establish the anticipated duration of confinement, the difference between parole eligibility and projected release, the parent’s actual use of available services, the frequency and quality of contact, the feasibility of proposed relative placements, and the child’s current adjustment and permanency prospects.

For an incarcerated parent, generalized statements about future sobriety, employment, housing, or family assistance will ordinarily carry less weight than documented, present conduct. Counsel should demonstrate consistent correspondence, completion of every available prison-based or alternative service, meaningful participation in hearings and caseworker meetings, and a verified placement plan. If institutional restrictions prevent participation, the record should identify the specific restriction, the services requested, the institution’s response, and the parent’s efforts to pursue alternatives.

In custody and conservatorship disputes outside the termination context, practitioners can use the opinion’s evidentiary framework without importing its ultimate legal standard. An incarcerated parent’s inability to exercise possession may support temporary orders, tailored access provisions, or appointment of another person as managing conservator. But counsel should distinguish inability to provide immediate physical care from a complete absence of parental commitment.

Placement witnesses also matter. A prospective caregiver should be prepared to testify about the child’s routine, education, medical and emotional needs, sibling relationships, duration and quality of the existing bond, and long-term plans. Evidence that a placement is merely “available” is materially weaker than evidence demonstrating a functioning, stable, and permanent home.

Finally, appellate counsel should preserve the distinction emphasized in In re H.S.: best interest remains independent from the predicate grounds. A brief that relies principally on an unchallenged predicate finding risks overlooking whether the record independently addresses permanence, parental abilities, competing plans, and the child’s needs.

Checklists

Building the Best-Interest Record

• Identify each applicable Holley and section 263.307(b) factor.
• Present evidence addressing the child’s present and future physical and emotional needs.
• Establish the parent’s actual release date and earliest parole eligibility date.
• Distinguish parole eligibility from a reasonably certain release.
• Document the frequency, content, and quality of parent-child contact.
• Identify all services available within the correctional institution.
• Show whether alternative materials or remote services were offered.
• Develop evidence concerning each proposed relative placement.
• Present specific evidence of the child’s adjustment to the current home.
• Address sibling relationships and whether the placement preserves them.
• Prove the caregiver’s long-term intentions and ability to provide permanence.
• Obtain recommendations from the caseworker, attorney ad litem, and guardian ad litem when admissible.

Representing an Incarcerated Parent

• Obtain complete sentencing, classification, parole, and projected-release records.
• Document every request for parenting classes, counseling, substance-abuse treatment, and other services.
• Preserve written proof when institutional rules prevent participation.
• Complete all paper-based or correspondence services that remain available.
• Maintain regular, age-appropriate contact with the child when permitted.
• Keep copies of letters, cards, telephone logs, and approved electronic messages.
• Use the caseworker’s offered communication channels unless a documented reason prevents doing so.
• Identify proposed caregivers early and provide complete contact information.
• Confirm that proposed relatives respond promptly to Department inquiries.
• Develop a concrete plan for housing, employment, transportation, sobriety, and childcare.
• Avoid relying solely on speculative parole or unsupported family assistance.
• Explain inconsistencies in testimony before they become credibility issues at trial.

Challenging a Best-Interest Finding on Appeal

• Separate the best-interest analysis from the predicate termination grounds.
• Address both legal and factual sufficiency standards.
• Identify undisputed evidence favorable to preservation of the relationship.
• Explain why incarceration did not prevent meaningful parental involvement.
• Compare the parent’s efforts with the services actually available.
• Challenge speculative assumptions about parole, release, or future conduct.
• Examine whether the proposed placement was too recent or insufficiently developed.
• Determine whether the record contains evidence of the child’s wishes.
• Assess whether prospective adoption was improperly treated as independently dispositive.
• Explain why contrary evidence was significant under the clear-and-convincing standard.
• Preserve challenges to adverse credibility determinations when the record permits.

Proving a Relative Placement

• Document the relative’s prior relationship with the child.
• Establish the length and stability of the placement.
• Show how the relative meets educational, medical, emotional, and developmental needs.
• Address the child’s bond with the caregiver.
• Explain how sibling relationships will be maintained.
• Complete all home studies and Department requests promptly.
• Present evidence of housing, income, childcare, and support systems.
• Clarify whether the relative seeks adoption, conservatorship, or another permanent arrangement.
• Address the relative’s willingness to comply with court-ordered contact provisions.
• Avoid relying solely on a stated willingness to serve as placement.

Citation

In re P.S.-S., No. 07-26-00227-CV (Tex. App.—Amarillo Nov. 2, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion.

~~95ae132d-80e0-4c69-b18e-a6cd333e0fee~~