From Texas Supreme Court Justice Evan Young's majority opinion Friday in In the Interest of H.S.:

Few principles in our history and traditions are as deeply rooted as the sanctity of the family. Fit parents, and not the government or anyone else, have the right and the corresponding responsibility to direct their children's upbringing and to be their children's primary source of protection and guidance.

At the same time, a parent's inability or unwillingness to satisfy basic, minimum standards of care can lead to abuse or neglect, which justifies governmental intervention to protect the children. The desired outcome of that intervention is a family's rehabilitation, the restoration of wayward parents to their proper roles, and the government's exit from the family's affairs.

In extreme cases, however, parents can forfeit their parental status altogether. When that happens, the government invokes the judicial process to pursue the termination of parental rights, after which parents and their children become strangers in the eyes of the law.

The strong presumption is that termination is not in a child's best interest, so a parental-termination order must always be a last resort and never a first impulse. Such an order risks offending the laws of nature and is impermissible under the laws of the United States and of Texas absent clear and convincing evidence both that the parent failed to discharge his obligations to his child and that the termination of parental rights is in the child's best interest. These heightened standards are required because termination affects the fundamental rights of all involved—not just of parents to their children but also of children to their parents.

This case requires us to apply these principles with respect to a married couple with three children. The government sought termination of both parents' rights to each child. A jury determined that the requisite grounds for termination had been proven as to both parents, and the trial court rendered judgment accordingly. The court of appeals affirmed. We likewise affirm as to Father, but we hold as a matter of law that the government has failed to establish that termination of Mother's rights is in the children's best interest. As to Mother, therefore, we reverse and render.

There's a lot going on in the opinion, which is nearly 10K words long, but here's a quick summary of the argument as to mother, with an interesting discussion related to divorce:

In this case, there were no allegations that Mother directly harmed any of the children or failed to care for them. Rather, the focus at trial was on Father's violence and Mother's ability or inability to protect the children from him. But when a parent's rights may be terminated based on a spouse's violence, the department should proceed with particular caution—especially when the spouse's violence is not directed at the children.

The principle from Lewelling [an earlier precedent] that a woman should not lose her child just because her husband abused her points to a grim reality—the dilemma faced by battered mothers who must choose between enduring the abuse or risk losing their children by seeking help…. [T]he record before us does indeed reveal that Mother is in this predicament primarily because of Father's actions, not because of her own faults.

True, in the early days after the removal of her children, Mother was reluctant to cooperate with the department and was defensive of Father. She believed that the department made "false accusations" and "like[d] to distort things that come out of your mouth to where it fits them." And Mother would not agree, at first, to prevent Father from contacting the children when only she was supervising.

By the time of trial, though, the situation was markedly different. Mother now understood that Father's self-harm and domestic violence posed risks to the children, as voluminous undisputed testimony, most prominently from the department's own counselors and providers, made clear. The evidence showed that she understood her obligation to ensure that the children were not subjected to danger from Father going forward, that she was committed to complying with that obligation, and that she was capable of doing so even though she obviously hoped that Father's own progress would greatly diminish the likelihood that she would need to undertake protective actions. All this evidence directly addresses the legally relevant question: not whether Mother is a victim of abuse herself, or whether Mother is unwilling to sever a relationship with her own husband despite departmental disapproval of such a choice, but whether Mother can and will protect her children, including from her husband and their father if necessary.

Moreover, to the extent that Mother did not demonstrate her willingness to prioritize her children as persuasively or as quickly as she might have, that was at least in part due to the lack of clarity in what the department intended to achieve and what it required of her. At an earlier hearing, the department's specialist unequivocally agreed that her goal was "to preserve the family unit and let the kiddos remain in the care and custody of at least one parent." The attorney ad litem had also urged the parents to "get the help that they need so that these children can return home."

And the parents participated in couples counseling aimed at reconciliation and family reunification as part of their mandatory, court-ordered services. In other words, the department was signaling to Mother that she needed to work on her relationships with her husband and her children so that they could all be reunited.

At the same time, however, the department's case against Mother was premised on her alleged unwillingness to separate from Father. For example, in its closing argument, the department condemned Mother because she "did not kick [Father] out" and because "she's still with him." And Mother's connection to Father was the lead point in the attorney ad litem's closing argument: "[Mother], she's going to choose her husband above all…. How do we know this? Well, we know this because, for one, you've seen no affirmative action from her to do anything else. They're still together." The department's brief in this Court repeatedly refers to concerns about "Mother's and Father's enmeshed relationship." Married people typically have "enmeshed" relationships, which is in fact close to the very definition of marriage and what it requires.

To be clear, and as the department acknowledged during oral argument, this Court's precedent forecloses the department from demanding that Mother (or any parent) choose between divorcing her husband or losing her children. But the department's arguments come perilously close to that line. They may well have crossed it at trial, and it appears that a major reason the court of appeals affirmed the best-interest determination as to Mother was that she had not permanently left Father and divorced him.

We reiterate that neither the department nor any court of this State may, in the name of the People of Texas and their laws, demand divorce as a precondition for maintaining parental rights. A mother unfortunate enough to have a husband from whom their children must be protected cannot invoke the marriage to exempt herself from the duty of protecting the children, of course, and that may sometimes even leave her with little option but to see her husband only when the children are not present. But the government may never condition her status as a parent on her willingness to pursue divorce.

Imposing a demand for divorce is unlawful, and imposing such an unlawful demand sub silentio is even worse than demanding it overtly. This case reflects the problem that can arise if the real goal—to separate a married couple—is communicated only indirectly, while a demand for the couple to reunite and thrive is made overtly. Generating such cognitive dissonance creates independent problems related to due process because parties cannot be expected to comply with orders that they cannot reasonably understand.

There is every indication here that Mother never understood exactly what the department wanted. The testimony of one of the parents' counselors exemplifies this point with particular clarity. The counselor testified that he firmly believed that the children would not be endangered if they were returned to Mother. When the attorney ad litem asked him whether Mother had taken any actions to show that she would choose her children over Father, the counselor responded, "She hasn't been put in that position yet to make a choice." When asked to clarify, the counselor explained,

She's trying to work it out with her husband, and then, you know, she wants to know what the CPS wants to do—that y'all make a choice and she'll choose her children….

I guess she was waiting to see what y'all wanted—do y'all want them to split up? Do you want them to stay together?

If she had a choice of either, A, getting the kids back or, B, staying with [Father] and not getting the kids back, she would leave.

So if even the counselor whom the department paid to work with Mother could not ascertain what the department's position really was, it is hardly surprising that Mother did not. Indeed, it is possible that even the department itself did not really know which of two opposing directions it expected Mother to choose….

Our judgment in Mother's favor does not mean that the department must immediately return the children to Mother and have no further contact with her or the children. The record before us does not indicate what has happened since trial. It is at least possible, for example, that Mother is currently in no position to care for the children. If restoring them to her physical custody does not pose any such risk, however, that restoration should proceed; if material risks exist, the department has the legal tools it needs to ensure the children's protection with the least amount of invasion into the family as possible.

In any event, in light of our disposition of Father's appeal, Mother will be the children's sole legal parent. That means that once the children are restored to her custody it will be up to Mother, and not Father, to determine whether and to what extent he plays a role in the children's lives. She will have the same authority as all other parents concerning interactions that her children have with others.

And she will have the same solemn responsibility as all other parents, too, so if Mother endangers the children in the future, the department may assess whether it would be appropriate to seek relief—potentially including termination—based on that future behavior. But the department must now recognize Mother as the children's parent, with all the rights and obligations that status entails….

Justice Debra Lehrmann, joined by Justices Jane Bland and Rebeca Aizpuru Huddle dissented, and would have accepted the jury's verdict as to the mother. For those who count such things, here all five male Justices who participated voted to restore the mother's parental rights, and all three female Justices voted to uphold the terminate of the mother's rights. (One of the nine Justices didn't participate in the decision.)

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