# In re K.L.B. Supreme Court of Texas, No. 26-0077 **In re K.L.B., No. 26-0077, is before the Supreme Court of Texas. Key issue: Justice Sullivan (joined by Justice Young) concurred in the denial but said courts of appeals should stop relying on pre-2021 cases holding that denying a 180-day extension of the automatic-dismissal date is discretionary, because the Legislature has since made the extraordinary-circumstances finding mandatory when a parent made a good-faith effort and the goal is reunification.** Practice areas: family law ## Key issues - Justice Sullivan (joined by Justice Young) concurred in the denial but said courts of appeals should stop relying on pre-2021 cases holding that denying a 180-day extension of the automatic-dismissal date is discretionary, because the Legislature has since made the extraordinary-circumstances finding mandatory when a parent made a good-faith effort and the goal is reunification. - On these facts the mother was not entitled to a mandatory extension because DFPS's goal was adoption, and she probably did not make a good-faith effort: she waited about ten months after removal to start services. ## Factual History The Department of Family and Protective Services (DFPS) removed ten-month-old K.L.B. from his parents on June 11, 2024, after reports that his parents used methamphetamine in his presence and engaged in domestic violence; both parents and the child tested positive for marijuana, cocaine, and methamphetamine, and the parents were charged with endangering a child (Petition for Review (Parental Termination) (Petitioner), PDF p. 46). Mother's service plan required a drug and alcohol assessment, counseling, domestic-violence courses, and parenting classes; she completed the assessments but did not complete drug treatment or the domestic-violence group, and she tested positive for marijuana multiple times during the case (Petition for Review (Parental Termination) (Petitioner), PDF pp. 46-47). She began her assessment on April 10, 2025, about ten months after removal, and by the June 3, 2025 trial had attended four treatment classes and missed three, with a warning that she risked discharge (Petition for Review (Parental Termination) (Petitioner), PDF p. 47). K.L.B. was thriving with his maternal grandmother, a licensed foster parent prepared to adopt him (Petition for Review (Parental Termination) (Petitioner), PDF p. 47). Mother says DFPS's endangerment case rested on drug use in May and June 2024, that no witness testified at trial that she was using drugs, and that she had re-engaged in outpatient treatment and was within weeks of completing it (Petition for Review (Parental Termination) (Petitioner), PDF pp. 3-4). ## Procedural History This is a petition for review in a parental-termination case. At the start of trial, Mother moved to extend the automatic-dismissal date to finish her service plan; the trial court denied the motion, calling her effort a "last-ditch effort" and finding no good-faith effort, and then terminated her rights under Family Code Section 161.001(b)(1)(D), (E), and (O), found termination in K.L.B.'s best interest, and appointed DFPS permanent managing conservator (Petition for Review (Parental Termination) (Petitioner), PDF pp. 4, 47-48). The Seventh Court of Appeals (Amarillo) affirmed on December 19, 2025: it upheld termination under subsection (E) without reaching (D) or (O), upheld the best-interest finding, and held that Mother did not preserve a due process complaint about the extension and that the trial court acted within its discretion in denying it (Petition for Review (Parental Termination) (Petitioner), PDF pp. 48-53; Sullivan, J., concurring, PDF p. 4). The Court denied review on June 5, 2026, with Justice Sullivan, joined by Justice Young, concurring in the denial (Sullivan, J., concurring, PDF pp. 1, 6). ## Issues Presented Mother presents six issues, each framed under Article I, Sections 19, and 37 of the Texas Constitution (Petition for Review (Parental Termination) (Petitioner), PDF pp. 15-16): 1. Whether the Constitution permits termination without clear and convincing evidence of current danger to the child at the time of trial. 2. Whether affirming termination under Section 161.001(b)(1)(E) based on historical drug use and service-plan timing dilutes the clear-and-convincing standard. 3. Whether the Constitution prohibits termination based on service-plan noncompletion or delay rather than proof of endangerment or unfitness. 4. Whether denying a statutory extension under Section 263.401(b) violated due course of law. 5. Whether the Constitution requires proof that termination is necessary, not merely preferable, when less restrictive alternatives exist and rehabilitation is ongoing. 6. Whether termination violates the Constitution when rigid timelines replace clear and convincing proof of present unfitness. DFPS frames its response as four questions: whether Mother preserved any constitutional challenge, whether the trial court abused its discretion in denying the extension, whether clear and convincing evidence supports the subsection (E) finding, and whether she adequately briefed the best-interest challenge (Response to Petition (Respondent), PDF pp. 12-13). ## Standard(s) of Review The court of appeals reviewed sufficiency of the evidence in the usual way, with the trial court as exclusive judge of credibility and weight, and reviewed the denial of an extension under Section 263.401(b) for abuse of discretion (Petition for Review (Parental Termination) (Petitioner), PDF pp. 48, 51). It treated due process complaints as subject to ordinary preservation rules (Petition for Review (Parental Termination) (Petitioner), PDF pp. 51-52). ## Legal Arguments **Present unfitness and the clear-and-convincing standard (Issues 1-3).** **Petitioner (Mother):** Articles I, Sections 19, and 37 set a constitutional floor: termination may occur only on evidence capable of producing a firm belief that the parent is presently unfit at the time of trial, and termination resting on past misconduct, procedural noncompliance, and rigid timelines dilutes that standard into a retrospective formality (Petition for Review (Parental Termination) (Petitioner), PDF pp. 2-3, 5). DFPS's case was stale, built on a discrete period of drug use nearly a year before trial, with no evidence of ongoing use, relapse near trial, or current danger (Petition for Review (Parental Termination) (Petitioner), PDF p. 3). **Respondent (DFPS):** Mother's constitutional claims are forfeited because she raised none in the trial court, the court of appeals' unchallenged waiver ruling stands, and constitutional avoidance favors resolving the case on nonconstitutional grounds; the Family Code already supplies the clear-and-convincing standard, and Section 37 merely codified existing parental rights (Response to Petition (Respondent), PDF p. 12). Mother's continuous drug use before and throughout the case established a voluntary, deliberate, and conscious course of endangering conduct, and her challenge to the repealed subsection (O) is moot (Response to Petition (Respondent), PDF pp. 12-13). **The extension denial and due course of law (Issues 4 and 6).** **Petitioner (Mother):** Section 263.401(b) is a constitutional safety valve, and denying an extension when she was nearing completion of treatment and DFPS offered no evidence that a brief extension would harm the child turned the dismissal date into a cutoff and elevated expediency over due process (Petition for Review (Parental Termination) (Petitioner), PDF pp. 4, 6-7). **Respondent (DFPS):** The trial court acted within its discretion because Mother waited about ten months after removal to start services, had missed sessions and risked discharge, and offered no other evidence of an extraordinary circumstance (Response to Petition (Respondent), PDF p. 12). **Best interest and necessity (Issue 5).** **Petitioner (Mother):** Best interest requires proof that termination is necessary, and the trial and appellate courts did not examine present parental fitness (Petition for Review (Parental Termination) (Petitioner), PDF pp. 15-16, 34-36). **Respondent (DFPS):** Mother misstates the governing law for best interest and does not examine the court of appeals' analysis, so the issue is inadequately briefed (Response to Petition (Respondent), PDF p. 13). ## Stated Reasons the Court Should Take the Case Mother argued that the case presents a recurring constitutional problem, that the court of appeals' holding lowers the constitutional bar for termination and conflicts with this Court's precedent requiring termination judgments to rest on present conditions, and that review is needed to restore the constitutional boundary (Petition for Review (Parental Termination) (Petitioner), PDF pp. 2, 7). She also invoked the Court's jurisdiction over errors of law of such importance to the state's jurisprudence that they should be corrected (Petition for Review (Parental Termination) (Petitioner), PDF p. 15). ## Practice Area Tags family-law ## Procedural Posture/Vehicle Petition for review from the Seventh Court of Appeals (Amarillo), denied June 5, 2026, with a concurring opinion by Justice Sullivan, joined by Justice Young (Sullivan, J., concurring, PDF pp. 1, 6). ## Amicus Involvement None ## Court's Reasoning The Court gave no reasons for denying review; the only writing is Justice Sullivan's concurrence, which is one Justice's view, not a holding (Sullivan, J., concurring, PDF p. 1). He concurred because Mother was not entitled to relief, but wrote about the extension question because the case involves the "civil death penalty" (Sullivan, J., concurring, PDF p. 1). Courts of appeals long held that a parent's own failure to comply with a service plan generally is not an extraordinary circumstance, but the Legislature changed that: in 2019 it added Subsection (b-2), requiring a court to consider whether a parent made a good-faith effort to complete a substance-abuse program, and in 2021 it added Subsection (b-3), making the extraordinary-circumstances finding mandatory when the parent made a good-faith effort and the permanency goal is reunification (Sullivan, J., concurring, PDF pp. 2-3). So the finding "is no longer a purely discretionary decision, and opinions that held otherwise are no longer good law" (Sullivan, J., concurring, PDF p. 4). The court of appeals relied on old precedent and asked whether Mother's failure was voluntary rather than whether she made a good-faith effort; here Mother was not entitled to the mandatory extension because DFPS's goal was adoption, and she probably did not make a good-faith effort because she waited about ten months after removal and then took part only sporadically (Sullivan, J., concurring, PDF p. 4). He added that delay or interruption does not by itself negate good faith, since parents face waitlists, housing and employment obligations, and nonlinear recovery, and that other courts of appeals have also relied on precedents abrogated by the 2021 change (Sullivan, J., concurring, PDF p. 5). He wrote that he hopes lower courts "will take care not to rely on judicial opinions that've been abrogated by statute" (Sullivan, J., concurring, PDF p. 6). ## Disposition Petition for review denied (Sullivan, J., concurring, PDF p. 6). ## Vote Breakdown Justice Sullivan concurred in the denial of the petition, joined by Justice Young (Sullivan, J., concurring, PDF p. 1). --- Source: The SCOTX Report, https://scotxreport.com/cases/26-0077. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.