Weekly Digest
September 5 – September 11, 2026
9 opinions this week
In the Interest of E.T. and J.T., Children
COA13
The Thirteenth Court of Appeals affirmed termination of Mother’s parental rights, holding the evidence was legally and factually sufficient to prove endangerment and best interest under Texas Family Code § 161.001(b). The court looked at Mother’s conduct as a continuing pattern—not a single lapse—including repeated methamphetamine use, refusals and no-shows for drug testing, abandonment of two very young children unattended in unsafe conditions, instability in housing and employment, and reliance on a third party for day-to-day care. Applying the endangerment standards and the Holley best-interest factors, the court concluded Mother’s short periods of compliance and some negative tests did not outweigh the longer record of instability, while the children’s bond with their stable caregiver and need for permanence supported termination.
Litigation Takeaway
“Temporary compliance will not erase a documented pattern of drug use, refused testing, abandonment, and instability. In Texas family cases, courts focus on durable parenting behavior and who is actually providing safe, consistent care—not last-minute improvement or partial service-plan completion.”
Arana v. State
COA14
In Arana v. State, the child complainant initially made multiple detailed abuse disclosures to a school counselor, CPS, a forensic interviewer, and the prosecutor’s office, but at trial she partially recanted, minimized, and claimed not to remember important details. The State argued that the father’s conduct had procured that diminished testimony, triggering forfeiture by wrongdoing under Texas Code of Criminal Procedure article 38.49. The court explained that a witness can be treated as unavailable not only by absence, but also through claimed memory loss or recantation as to the subject matter of prior statements. Once forfeiture by wrongdoing applies, both hearsay and Confrontation Clause objections to the prior testimonial statements are lost. The court ultimately affirmed, holding at minimum that any assumed error in admitting the prior statements was harmless because similar evidence came in through the complainant’s own testimony.
Litigation Takeaway
“When a child or other key witness backs away from prior allegations, family-law lawyers should treat that shift as an evidentiary issue, not just a credibility problem. Preserve prior statements early, build a clear record of claimed memory loss or recantation, request a hearing outside the factfinder’s presence, and object consistently—because appellate courts are unlikely to reverse if the same evidence comes in elsewhere without objection.”
In re Mackinsey Lynn Johnson
COA10
In this SAPCR modification mandamus, the Waco Court of Appeals held that Texas Family Code § 109.001(a)(5) does not permit interim appellate attorney’s fees based merely on financial strain, litigation parity, or the need to keep counsel on the case. After the trial court ordered Johnson to pay over $49,000 in appellate fees to Spivey during the appeal, Johnson sought mandamus. The appellate court first held Johnson preserved error by repeatedly objecting at the hearing that there was no evidence the fees were necessary to preserve and protect the child’s safety and welfare during appeal. It also held mandamus was proper because compelled interim fee payments are not adequately remedied by ordinary appeal. On the merits, the court analyzed the statute textually and concluded the movant must prove an immediate child-focused necessity during the appeal itself. Because the evidence showed only reduced quality of life and concern about continued litigation—not that the child would lack housing, food, medical care, schooling, or protection—the trial court abused its discretion. The court conditionally granted mandamus and directed the trial court to vacate the appellate fee awards and related money judgments.
Litigation Takeaway
“If you want temporary appellate fees under Family Code § 109.001 in a child-related case, build a record showing specific, immediate harm to the child’s safety or welfare without the fee award. If you are opposing the request, force the other side to admit the child’s basic needs remain covered and show the motion is really about funding the appeal or pressuring settlement—grounds that will not support the order after In re Johnson.”
Michelena v. Michelena
COA13
In Michelena v. Michelena, a former wife tried to use the Texas Uniform Fraudulent Transfer Act (TUFTA) to attack her ex-husband’s transfer of homestead property to relatives after she had obtained a property-division judgment against him. The court focused on TUFTA’s threshold requirement that there be a transfer of an 'asset' and held that Texas homestead property is not an asset under TUFTA because property generally exempt under nonbankruptcy law is expressly excluded by Texas Business and Commerce Code section 24.002(2)(b). The court rejected the creditor’s argument that hypothetical excess sale proceeds might have become reachable under Property Code section 41.001(c), explaining that the case involved an actual transfer of exempt homestead realty, not nonexempt proceeds. It also held that allegations the transfer was a sham to hinder a creditor did not change the statutory analysis. The court affirmed summary judgment against the TUFTA claim.
Litigation Takeaway
“Before pleading fraudulent transfer in a divorce-enforcement case, start with exemption analysis. If the property transferred was a valid homestead, TUFTA likely does not apply, even if the transfer looks suspicious. Creditors should focus instead on abandonment, actual sale proceeds, tracing, and other nonexempt assets or remedies.”
L. S. v. Texas Department of Family and Protective Services
COA03
In L. S. v. Texas Department of Family and Protective Services, the Third Court of Appeals reversed a trial court’s order terminating a father’s parental rights because DFPS failed to prove any pleaded predicate ground under Texas Family Code section 161.001(b)(1) by clear and convincing evidence. Although the record included concerning facts—such as domestic-violence allegations, arrest history, missed visits, and imperfect service-plan compliance—the court held those concerns were not enough unless they established a specific statutory ground actually pleaded. The court emphasized that best-interest evidence cannot substitute for proof of a required predicate ground, and because none was legally sufficient, it reversed and rendered judgment denying the termination petition.
Litigation Takeaway
“Serious allegations do not replace element-by-element proof. In any case seeking extraordinary relief affecting parent-child rights, the winning record must tie admissible evidence to the exact statutory ground pleaded; otherwise, even troubling facts and strong best-interest evidence will not save the judgment on appeal.”
In the Interest of J.Z.S., a Child
COA14
In *In re J.Z.S.*, the father sought to modify conservatorship to obtain the exclusive right to designate the child’s primary residence, or alternatively to change possession, communication, and information-sharing terms. Although both parents agreed there had been a material and substantial change in circumstances under Texas Family Code section 156.101(a)(1), the Fourteenth Court of Appeals held that this only satisfied the threshold requirement for modification. The court separately analyzed best interest and concluded the trial court acted within its discretion in finding father did not prove that the requested changes would benefit the child. The evidence showed the child was thriving with Mother, was happy in his school and community, and wanted more time with Father but did not want to change residences. Given the child’s stability, conflicting testimony about parental conduct and information sharing, and Father’s history of sporadic exercise of possession, the court affirmed the denial of modification.
Litigation Takeaway
“An agreed material and substantial change does not win a modification case by itself. In Texas custody modifications, the movant must connect the facts to the specific relief requested and prove that the requested change—not just some intervention—serves the child’s best interest. If the child is thriving in the current placement, complaints about relocation, interference, or poor communication may support narrower remedies, but not necessarily a change of primary residence.”
In the Interest of C.L., a Child
COA06
The Texarkana Court of Appeals affirmed termination of Mother’s parental rights under Texas Family Code § 161.001(b)(1)(E). The court held that clear and convincing evidence showed a continuing course of endangering conduct, including Mother’s failure to obtain prenatal care, refusal of medication for the newborn, inability or unwillingness to provide basic infant care in the NICU, untreated or unmanaged mental-health issues, and maintenance of an unsafe and unsanitary home. The court also rejected Mother’s argument that the Department failed to tailor services to her special needs, concluding that the record supported the Department’s reasonable efforts to reunify and that the endangerment evidence independently supported termination.
Litigation Takeaway
“Endangerment cases are won or lost on patterns, not isolated incidents. A sustained record of unsafe caregiving, untreated mental-health instability, medical neglect, and hazardous living conditions can support severe child-related relief, and a vague complaint that services were not properly tailored will not overcome strong endangerment evidence without a well-developed trial record.”
In re Damon Harrison
COA08
In this mandamus proceeding, the El Paso Court of Appeals held that once Damon Harrison filed a supersedeas bond to suspend enforcement of a money judgment, the trial court could no longer compel post-judgment discovery served under Texas Rule of Civil Procedure 621a. The court analyzed the interaction between Rule 621a and Texas Rule of Appellate Procedure 24.1, concluding that a supersedeas bond becomes effective immediately upon filing and that Rule 621a discovery is a form of judgment enforcement. Because the bond was filed before the trial court signed the order compelling discovery, enforcement had already been suspended, making the order an abuse of discretion. The court conditionally granted mandamus and directed the trial court to vacate the discovery order.
Litigation Takeaway
“Timing controls. In Texas family-law and other judgment-enforcement cases, Rule 621a post-judgment discovery ends the moment a valid supersedeas bond is filed. Creditors should move fast if they need asset discovery, and appellants can shut down compelled collection discovery by promptly filing an effective bond.”
Berry v. State
COA05
In Berry v. State, the Dallas Court of Appeals affirmed admission of testimony that the defendant was assaulting his eight-months-pregnant cohabitant immediately before striking an elderly man who intervened. The court held the evidence was admissible under Texas Rule of Evidence 404(b) as same-transaction contextual evidence because it explained why the complainant intervened, how the confrontation arose, and why the charged assault occurred. The court also rejected the Rule 403 challenge, concluding the evidence’s probative value in completing the story of the offense was not substantially outweighed by unfair prejudice, even though the pregnancy detail was emotionally charged.
Litigation Takeaway
“When a disputed incident cannot be understood without what happened immediately before it, tightly connected surrounding conduct may come in as same-transaction contextual evidence rather than impermissible propensity evidence. In family-law hearings, frame the evidence as necessary to explain sequence, motive, intervention, or the full episode—and if opposing it, attack necessity, seek narrowing or sanitizing, and build a specific Rule 403 record.”