Opinion issued December 18, 2018




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00564-CV
                            ———————————
                   IN THE INTEREST OF N.J.H., A CHILD



                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-03606J


                           CONCURRING OPINION

      I join the Court’s opinion and judgment. There was legally and factually

sufficient evidence of endangering conduct and that termination of Father’s parental

rights was in N.J.H.’s best interest based on, among other things, Father’s positive

test for cocaine and history of family violence. In addition, Texas appellate courts

have repeatedly relied on evidence of a parent’s marijuana use to support
endangerment findings, so the Court’s holding that is based, in part, on Father’s

marijuana use is well supported.1 I write separately, however, to suggest that we

should more closely tailor our consideration of marijuana use to what the termination

statute actually requires.

      The statute expressly authorizing involuntary termination of the parent-child

relationship based on a parent’s use of marijuana or other controlled substances, i.e.,

Section 161.001(b)(1)(P), requires clear and convincing evidence of use “in a

manner that endangered the health or safety of the child[.]” 2 Our reliance on

marijuana use—without accompanying evidence of impairment or some other

circumstance that risks a child’s health or safety—to show that a parent has engaged

in a course of endangering conduct under Section 161.001(b)(1)(E) is a creature of

judicial decision-making. It is not what the statute requires. And that decision-

making fails to consider that there has been a sea change in society’s acceptance of


1
      See, e.g., In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (considering father’s
      admitted marijuana use as evidence of endangerment); Walker v. Tex. Dep’t of
      Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.]
      2009, pet. denied) (considering evidence of father’s marijuana use in affirming trial
      court’s endangerment finding).
2
      See TEX. FAM. CODE § 161.001(b)(1)(P) (permitting termination of parental rights
      if parent has “used a controlled substance,” as defined in Health and Safety Code,
      “in manner that endangered the health or safety of the child” and failed to complete
      court-ordered treatment program or continued to abuse controlled substance after
      completing court-ordered treatment program); TEX. HEALTH & SAFETY CODE §§
      481.002(5) (defining controlled substance to include substances listed in Schedule
      I), 481.032 (listing marijuana in Schedule I hallucinogenic substances).

                                            2
limited marijuana use. It may no longer be warranted to presume that marijuana use,

by itself, indicates parental neglect or endangerment.

      Of course, marijuana, like alcohol and like illicit drugs, can be abused and

may impede a parent’s ability to care for his or her child or place the child at risk of

harm, but I believe our statutory framework requires something more than a single

positive marijuana drug test or general statements about marijuana use before the

courts reach that conclusion. Various geographic regions in our state and country,

and the individuals elected to represent those voters’ legislative inclinations, have

increasingly concluded that marijuana use is not always synonymous with abuse.

That older parental-termination cases dedicate little appellate-level analysis to this

possibility counsels against overreliance on those cases.

                           Marijuana Laws are Evolving

      Marijuana is still illegal under federal law,3 but there is a clear trend among

the states toward greater acceptance of marijuana use. Medical use of marijuana by

qualified patients is now permitted in the District of Columbia and more than 30




3
      21 U.S.C. § 812 (listed under Schedule I (c) Hallucinogenic Substances (10)
      “Marihuana”).

                                           3
states4 and territories.5 Recreational use of marijuana is legal in the District of

Columbia and 10 states (Alaska, California, Colorado, Maine, Massachusetts,

Michigan, Nevada, Oregon, Vermont, and Washington).6 A significant number of


4
      See ALASKA STAT. §§ 17.37.10 to .80; ARIZ. REV. STAT. §§ 36–2801 to –2819;
      ARK. CONST. amend. 98, §§ 1–25; CAL. HEALTH & SAFETY CODE §§ 11362.7–.9;
      COLO. REV. STAT. § 18–18–406.3; CONN. GEN. STAT. §§ 21a–408 to –414; DEL.
      CODE tit. 16, §§ 4901a–4928a; D.C. Code §§ 7–167.01 to .13; FLA. STAT. § 381.986;
      GA. CODE §§ 43–34–120 to –126; HAW. REV. STAT. §§ 329–121 to –131; 410 ILL.
      COMP. STAT. 130/1 to /999; ME. REV. STAT. tit. 22, §§ 2421 to 2430–B; MD. CODE,
      HEALTH–GEN. §§ 13–3301 to –3316; MASS. GEN. LAWS ch, 94D, §§ 1–3; MICH.
      COMP. LAWS §§ 333.26421–.26430; MINN. STAT. §§ 152.21–.37; MONT. CODE
      §§ 50–46–301 to –345; NEV. REV. STAT. §§ 453A.010–.810; N.H. REV. STAT.
      §§ 126–X:1 to :12; N.J. STAT. §§ 24:6I–1 to –16; N.M. STAT. §§ 26–2B–1to –7;
      N.Y. PUB. HEALTH LAW §§ 3360 to 3369–e; N.D. CENT. CODE §§ 19–24.1–01 to –
      40; OHIO REV. CODE §§ 3796.01–.30; OR. REV. STAT. §§ 475b.785–.949; 35 PA.
      CONS. STAT. §§ 10231.101–.2110; 21 R.I. GEN. LAWS §§ 21–28.6–1 to –17; VT.
      STAT. tit. 18, §§ 4471–4474m; WASH. REV. CODE §§ 69.51A.005–.903; W. VA.
      CODE §§ 16A–1–1 to –16–1.
5
      See 10 GUAM CODE ANN. §§ 122501–122529; 9000 PR REGLA 8686.
6
      See ALASKA STAT. §§ 17.38.010, .020 (regulating personal use of marijuana,
      including possession, use, and purchase of one ounce or less of marijuana); CAL.
      HEALTH & SAFETY CODE §§ 11357, 11362.1; CAL. PENAL CODE § 17 (authorizing
      personal use of up to 1 ounce of marijuana); COLO. REV. STAT. §§ 16, 18-18-406,
      18-1.3-501, 18-1.3-401.5 (authorizing personal use of up to 1 ounce of marijuana
      and making possession of up to two ounces of marijuana petty offense punishable
      by a fine up to $100); D.C. CODE § 48–904.01(a) (implementing ballot initiate that
      legalized, for persons over 21 years of age, possession, use, purchase, or transport
      of up to two ounces of marijuana); ME. REV. STAT. tit. 28-B, § 1501; id. tit. 17-a,
      §§ 1107-A, 1252 (amount over 2 and a half ounces legal threshold is grouped into
      4 classes punishable up to 10 years in confinement); MASS. GEN. LAWS ch. 94G,
      § 7 (authorizing personal use of up to 1 ounce of marijuana for persons 21 years of
      age or older); NEV. REV. STAT. § 453D.110(1) (authorizing personal use of up to 1
      ounce of marijuana for persons 21 years of age or older); OR. REV. STAT.
      § 475B.337(1)(b) (authorizing personal use of up to 1 ounce of marijuana for
      persons over the age of 21); VT. STAT. tit. 1, § 4230 (authorizing personal use of up
      to 1 ounce of marijuana); WASH. REV. CODE § 69.50.4013(3)(a)–(b) (providing that
      it is not violation of controlled substance act for person 21 years of age or older to
                                            4
states now treat possession of a small amount of marijuana for personal consumption

as a misdemeanor offense or have decriminalized it altogether, electing instead to

impose a civil penalty (though leniency in some of these states is extended only for

first- or second-time possession).7 I can only surmise that the trend toward

legalization and society’s increasingly tolerant view of marijuana use result, at least

in part, from recognition that almost “5 million people reported using marijuana on

a daily or almost daily period basis over a year, and almost half of the population

has tried marijuana.”8


      possess marijuana in amount not exceeding statutory threshold); see also Jeff
      Karoub, Michigan voters bring legal recreational marijuana to the Midwest,
      Chicago Tribune (Nov. 7, 2018, 7:25 AM), https://www.chicagotribune.com/
      news/nationworld/politics/ct-michigan-voters-legalize-recreational-pot-20181106-
      story.html.
7
      See, e.g., CONN. GEN. STAT. §21a–279 to –279a (civil offense); DEL. CODE tit. 16,
      § 4764(c) (civil offense); 720 ILL. COMP. STAT 550/4 (civil offense); MD. CODE
      § 5-601.1 (civil offense); MISS. CODE § 41-29-139(c)(2) (civil offense); NEB. REV.
      STAT. § 28-416 (civil offense); N.H. CRIM. CODE 318B:2–c (civil offense); N.Y.
      PEN. LAW §§ 221.05, 221.10 (civil offense); R.I. GEN. LAWS § 21–28–4.01 (civil
      offense); see also MINN. STAT. § 152.027(4) (misdemeanor offense punishable by
      fine for first- and second-time offenders); MO. REV. STAT. § 579.015 (misdemeanor
      offense punishable by fine for first-time offenders); N.C. GEN. STAT. §90–95(d)(4)
      (misdemeanor offense punishable by fine for first-time offenders); OHIO REV. CODE
      § 2925.11(C)(3) (misdemeanor offense punishable by fine for first- and second-time
      offenders).
8
      Alice Kwak, Medical Marijuana and Child Custody: The Need to Protect Patients
      and Their Families from Discrimination, 28 HASTINGS WOMEN’S L.J. 119, 124
      (2017) (citing Answers to Frequently Asked Questions About Marijuana, Office of
      National Drug Control Policy, https://www.whitehouse.gov/ondcp/frequently-
      asked-questions-and-facts-about-marijuana (last visited Feb. 5, 2016) (answer to
      question “What are the trends in marijuana use in the United States?”), and In
      Debate Over Legalizing Marijuana, Disagreement Over Drug’s Dangers, In Their
                                           5
      In Texas, this trend has not yet taken hold to the same extent as in other states.

Possession of marijuana—even of small amounts of less than two ounces—remains

a criminal offense punishable by jail time.9 But there are hints of change here too. In

2015, our legislature adopted the Compassionate Use Act, which allows for medical

use of low-THC cannabis by Texans who suffer from intractable epilepsy and have

a prescription from qualified physicians.10 At least three of this State’s larger cities—

Houston,11 Dallas,12 and Austin13—have adopted misdemeanor diversion programs

that do not decriminalize possession but encourage law enforcement officers to cite



      Own Words: Supporters and Opponents of Legalization, Pew Research Center (Apr.
      14, 2015), http://www.people-press.org/2015/04/14/in-debate-over-legalizing-
      marijuana-disagreement-over-drugs-dangers/#survey-report (“49% say they have
      ever tried marijuana”)).
9
      TEX. HEALTH & SAFETY CODE § 481.032.
10
      See id. §§ 487.001–.201 (Texas Compassionate Use Act authorizing the cultivation,
      processing, and dispensing of low-THC cannabis to prescribed patients with
      intractable epilepsy); see also TEX. OCC. CODE § 169.001(3) (defining “Low-THC
      cannabis” as containing “(A) not more than 0.5 percent by weight of
      tetrahydrocannabinols; and (B) not less than 10 percent by weight of cannabidiol”).
11
      Misdemeanor Marijuana Diversion Program, Harris County District Attorney Kim
      K. Ogg, https://app.dao.hctex.net/MMDP (effective date Mar. 1, 2017, last viewed
      Nov. 6, 2018).
12
      Stephen Young, Cite-and-Release Starts Today in Dallas, DALLAS OBSERVER (Dec.
      1, 2017, 4:00 AM), https://www.dallasobserver.com/news/dallas-starts-cite-and-
      release-for-weed-possession-10124408.
13
      Katie Hall, Austin gives police more ‘cite-and-release’ discretion, STATESMAN
      (Oct. 29, 2018, 2:12 PM), https://www.statesman.com/news/20181028/austin-
      gives-police-more-cite-and-release-discretion.

                                           6
and release people in possession of small amounts of marijuana, rather than arrest

them. Governor Greg Abbott recently indicated his willingness to consider

legislation reducing possession of up to two ounces of marijuana from a Class B to

a Class C misdemeanor offense.14 In addition, the 2018 platforms of Texas’s two

major political parties include marijuana reform.15 And according to one recent poll,

more than half of Texas’s registered voters believe marijuana should be legalized.16



14
      Sunny Sone, Texas Governor Greg Abbott Opens His Mind to Marijuana
      Decriminalization . . . Kinda, TEXAS OBSERVER (Oct. 2, 2018, 9:37 AM),
      https://www.texasobserver.org/texas-governor-greg-abbott-opens-his-mind-to-
      marijuana-decriminalization-kinda/. “Rather than the current punishment of up to
      180 days in jail and a $2,000 fine, petty [marijuana] possession would be a non-
      jailable offense more like a traffic violation, carrying only a fine of up to $500.” Id.;
      see TEX. PENAL CODE §§ 12.22 (punishment for Class B misdemeanors), 12.23
      (punishment for Class C misdemeanors).
15
      See 2018 Republican Party of Texas Platform, REPUBLICAN PARTY OF TEXAS,
      https://www.texasgop.org/platform/ (last visited Nov. 6, 2018) (stating, in Item 107,
      that Republican Party supports “a change in the law to make it a civil, and not a
      criminal, offense for legal adults only to possess one ounce or less of marijuana for
      personal use, punishable by a fine of up to $100, but without jail time”); Texas
      Democratic Party 2018–2020 Platform, TEXAS DEMOCRATIC PARTY,
      https://www.txdemocrats.org/our-party/texas-democratic-party-platform/           (last
      visited Nov. 6, 2018) (stating that Democratic Party supports state legislation “to
      legalize possession and use of cannabis and its derivatives” and federal legislation
      “to remove cannabis as a Schedule 1 Controlled Substance and to remove all
      criminal penalties for use and possession of cannabis).
16
      Ross Ramsey, Led by Democrats and young adults, most Texas voters want to
      legalize marijuana, UT/TT Poll finds, THE TEXAS TRIBUNE (June 27, 2018,
      12:00 AM), https://www.texastribune.org/2018/06/27/marijuana-democrats-young
      -adults-texas-poll/ (53% of registered voters would legalize marijuana either in
      small amounts (30%) or any amount (23%), and another 31% would legalize
      marijuana only for medicinal purposes). Of course, there are also individuals
      opposed to legalizing marijuana for any purpose. See id. (same poll showed that
                                              7
          Our Consideration of Marijuana Use in Termination Cases
           Should More Closely Track What the Statute Requires

      On occasion, including in opinions I have authored, this Court has explained

that a parent’s illegal drug use may support termination based on endangerment

because “it exposes the child to the possibility that the parent may be impaired or

imprisoned.”17 As marijuana laws evolve, we should reconsider this language and

its underlying reasoning as it concerns a parent’s recreational marijuana use as

evidence of endangerment in termination cases. Such broad language suggesting that

all drug use is equivalent may no longer be supportable.

      If it is not true that all marijuana use is endangering, then courts should, under

Section 161.001(b)(1)(E)’s endangerment predicate, examine whether the use

endangered or created a risk of physical or emotional harm to the child under the

facts of the case. After all, the statute does not list drug use itself as a ground for

termination; termination is authorized only when the drug is used in an endangering

manner.18 There was no evidence in this case, nor in many of the other termination



      16% of registered voters believe possession of marijuana should remain illegal
      under any circumstances).
17
      Walker v. Tex. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex.
      App.—Houston [1st Dist.] 2009, pet. denied); see also In re M.M., No. 01-16-
      00998-CV, 2017 WL 2645435, at *10 (Tex. App.—Houston [1st Dist.] June 16,
      2017, no pet.) (mem. op.); In re T.E.G., No. 01-14-00051-CV, 2014 WL 1878919,
      at * 7 (Tex. App.—Houston [1st Dist.] May 8, 2014, no pet.) (mem. op.).
18
      See TEX. FAM. CODE § 161.001(b)(1)(E), (P).

                                           8
appeals before our Court, regarding the physical effects of recreational marijuana

use or whether the use or any pattern of use actually endangered the child.

      A parent’s “interest in the accuracy and justice of the decision to terminate his

or her parental status is . . . a commanding one.”19 To terminate parental rights or

deprive a parent of access to his or her child based on endangerment absent evidence

that marijuana use has actually caused or is causing a risk of harm does not satisfy

the strict standards that apply in these cases.20

      I do not attempt to propose a bright-line test for what evidence is required or

when marijuana use may be sufficiently endangering so as to adversely impact an

individual’s ability to parent a child. It may be that the courts should consider a

parent’s recreational marijuana use only when specific facts show endangerment or



19
      In re M.S., 115 S.W.3d at 547 (quoting Lassiter v. Dep’t of Soc. Servs. of Durham
      County, N. C., 452 U.S. 18, 27 (1981)).
20
      Opinions from states that already have wrestled with medical or recreational use of
      marijuana in child welfare proceedings are instructive on this issue. See, e.g., T.G.
      v. Dep’t of Children & Families, 927 So. 2d 104 (Fla. Dist. Ct. App. 1st Dist. 2006)
      (father’s lone positive drug test was not competent substantial evidence to support
      dependency finding when there was no evidence that father was addicted to cocaine
      or marijuana or that children were harmed as result of past drug use); Dep’t of
      Human Servs. v. C.Z., 236 P.3d 791 (Or. 2010) (reversing adjudication for lack of
      evidence showing that mother’s marijuana use was condition or circumstance that
      posed risk to her children); New Jersey Div. of Youth & Family Servs. v. V.T., 32
      A.3d 578, 585 (N.J. App. Div. 2011) (stating that “it is important to make clear that
      not all instances of drug ingestion by a parent will serve to substantiate a finding of
      abuse or neglect”); In re L.P., 6 N.E.3d 1019 (Ind. Ct. App. 2014) (mother’s single
      use of methamphetamine outside child’s presence did not support trial court’s
      “Child in Need of Services” determination).

                                             9
when a parent is unable to provide regular care because of a substance-abuse

problem, as shown by evidence that the parent has been diagnosed by a medical or

mental health professional as having a current substance-abuse problem or satisfies

the definition of substance abuse in the Diagnostic and Statistical Manual of Mental

Disorders (“DSM”).21 A parent’s occasional use of marijuana recreationally also

may, under some circumstances, be evidence of his or her inability to provide proper

care for a child of tender age.22 Any meaningful “endangering” analysis would have

to take into account where the use occurred, the level of the use, and, significantly,

whether the child was in the parent’s care at the time.




21
      See In re Drake M., 211 Cal. App. 4th 754, 766 (2012) (holding that parent engages
      in “substance abuse” only if (1) medical professional has diagnosed parent as having
      current substance abuse problem or (2) parent’s substance abuse meets DSM
      definition of substance-abuse problem); but see In re Ryan G., No. B284624, 2018
      WL 2056003, at *4 (Cal. App. 2d May 3, 2018) (not designated for publication)
      (declining to require Drake M. showings in all cases and noting that more recent
      version of DSM defines “substance abuse” to include drug use resulting in
      interpersonal problems (such as physical fights) or failure to fulfill major role
      obligations (such as neglect of household)); see also In re Natalie A., 243 Cal. App.
      4th 178, 185 (2015); In re Rebecca C., 228 Cal. App. 4th 720, 726 (2014); In re
      Christopher R., 225 Cal. App. 4th 1210, 1218 (2014).
22
      See In re Rebecca C., 228 Cal. App. 4th at 726 (2014) (concluding that even though
      mother was abusing drugs, it was not impacting her 13-year-old child); In re Drake
      M., 211 Cal. App. 4th at 767 (observing that, in case involving toddler who required
      regular care and attention due to tender age, child protective services agency needed
      only to produce sufficient evident that father was substance abuser to justify finding
      that child should enter state custody).

                                            10
      In addition, courts may consider marijuana use for a different prong of the

termination statute: failure to comply with the provisions of a court order. 23 The

family services plans approved and ordered by the trial courts frequently require a

parent to abstain from drug use as a condition of visitation or reunification.

Factfinders could conclude that parental rights should be terminated in cases where

a parent does not abstain from marijuana long enough to satisfy the plan despite

having knowledge that a failure to comply could support termination. But evidence

of marijuana use for this ground would not include marijuana use before the plan

was adopted. Evidence of marijuana use to prove endangerment, on the other hand,

includes conduct before the termination proceedings commenced.24

      Following the statute as written requires that parental drug use actually

endanger the child. The trial courts are in the best position to determine the degree

to which a child is endangered based on an assessment of the facts and the actual

parenting of the child. On appeal, we should engage in a fact-specific analysis of the




23
      See TEX. FAM. CODE § 161.001(b)(1)(O) (permitting termination of parental rights
      if parent has “failed to comply with the provisions of a court order that specifically
      established the actions necessary for the parent to obtain the return of the child who
      has been in the permanent or temporary managing conservatorship of the
      Department . . . for not less than nine months as a result of the child’s removal from
      the parent under Chapter 262 for the abuse or neglect of the child”).
24
      See In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet.
      denied) (explaining that courts may consider parent’s actions occurring before
      child’s birth as part of endangerment analysis).
                                            11
evidence of endangerment in each termination proceeding rather than rest on general

characterizations.

      With these concerns in mind, I respectfully concur.




                                             Harvey Brown
                                             Justice

Panel consists of Chief Justice Radack and Justices Brown and Caughey.

Brown, J., concurring.




                                        12
