By Leslie Odom
Assistant County & District Attorney in Ellis County
Let’s pick up where we left off in my previous article: with its concluding sentiment of “Let’s go to trial!”[1] Once trial is over, we should contemplate this: After all the time spent preparing for a termination trial, no one walks into the courtroom expecting the judgment to be reversed. Yet trial victory is often not the final chapter. Appeals are pursued, and reversals do occur.
A review of recent opinions from the Texas Supreme Court reminds us that termination judgments remain subject to careful appellate scrutiny.[2] And while a number of appellate issues can jeopardize a termination judgment, one finding deserves attention from the very beginning of the case: whether CPS made reasonable efforts to return the child to the parent.
Reasonable efforts are not simply proven at trial. They must be made, documented, and explained throughout the life of the case. The evidence to support that finding was developed throughout the case—or it does not exist.
As CPS (Child Protective Services) prosecutors, we must think as trial lawyers and appellate lawyers simultaneously. Every witness examination should be designed to not only persuade the trial court, but also to create a complete record. That record must establish the statutory grounds for termination, the child’s best interest, and—central to this article—CPS’s reasonable efforts throughout the life of the case. By intentionally developing that evidence throughout the case and ensuring it is reflected in the trial record, we increase the likelihood that a favorable judgment will withstand legal and factual sufficiency challenges on appeal and provide lasting permanency for the children involved.
This article focuses on creating that record through proving CPS’s reasonable efforts.
Reasonable efforts
Texas Family Code §161.001 dictates how we achieve termination. While this article focuses primarily on CPS’s reasonable efforts, CPS prosecutors should remember that a strong appellate record must address all three components outlined in §161.001, the first two being a record clearly establishing the statutory grounds supporting termination and the evidence demonstrating that termination is in the child’s best interest.
Section 161.001 continues, however, and directs that CPS must provide a basis for the trial court to make a finding that, despite the efforts undertaken by CPS, reunification was not a viable option for the child.[3] In other words, CPS made attempts toward reunification and those attempts and efforts proved unsuccessful, or it was too unsafe to even try.
However, “reasonable efforts” isn’t a concept limited to CPS trials. It is a mandated, case-specific standard woven throughout various statutes guiding our efforts through the life of CPS cases. This recurring statutory requirement is instructive because it demonstrates that reasonable efforts are not confined to the termination trial; rather, these efforts are expected throughout a CPS case. From CPS’s decisions during an investigation leading to a child’s removal from his or her home, to the termination trial, and even into the court’s review of the child’s circumstances in CPS’s permanent managing conservatorship (PMC), reasonable efforts are consistently being evaluated. This obligation falls on CPS, from investigators to caseworkers, and the record at trial, therefore, should not only reflect what efforts were made but also why those efforts were reasonable given the unique circumstances of that particular family.
You will not find a definition of this term because a stringent definition would be contrary to the intended purpose of its guidance; its intent is to create a case-by-case analysis, and therefore, no one definition would correctly serve us. CPS must be able to prove its efforts to prevent or eliminate the need to remove children from their homes. If a child must be removed, CPS must also be able to prove its consideration of all options, consistent with the child’s safety, to enable the child’s return. We also know that the child’s health and safety must remain of utmost concern.[4]
How does this relate to trial and avoiding reversals of favorable judgments? I believe that if we, as counsel for CPS, encourage its embrace of meeting the reasonable efforts standard throughout each case, and CPS is consistently documenting those efforts from removal to trial, we prosecutors are then sure to have a healthy amount of evidence to present at trial.
A standard throughout the CPS case
The Children’s Commission has created a Reasonable Efforts Findings Checklist, a helpful two-page resource.[5] It outlines the court’s findings to be made at each statutory CPS hearing. Consider the following appearances of “reasonable efforts” throughout the statutes that govern the various hearings in a CPS case’s life and the questions pertaining to this standard:
Ex parte emergency removal hearings: What efforts were made to prevent removal? Were the efforts reasonably based upon the child’s and parent(s)’ circumstances?[6]
Adversary hearings: What efforts has CPS made to enable possession of the child by a parent not involved in the removal, for instance? What efforts is CPS making that are consistent with the circumstances of this particular family to eliminate the need for removal of the child?[7]
Status hearings: Does the family service plan that CPS has created ensure reasonable efforts will be made to address the reasons for removal?[8]
Permanency hearings before final orders: In CPS’s efforts to finalize permanency for the child, have we determined a path toward reunification or an alternative outcome? Can the child be returned home?[9]
Final hearing on the merits: What specific efforts have been made to return the child to the parents prior to seeking termination of parental rights?[10]
Permanency hearings after final orders: What reasonable efforts is CPS engaged in while ensuring permanency for the child?[11]
In preparing my client to answer these types of questions, I have found regular legal staffings with my team—our legal liaison, caseworker supervisors, and caseworker—to be essential. As time permits (and admittedly, we occasionally miss a month!), we meet to review each case, assess the progress, and determine the appropriate path forward. We discuss whether service plans have been developed and reviewed with the parents, how the children are doing in their foster or fictive kin placements, whether we continue to identify and assess relatives for placement, and whether our permanency goals remain appropriate.
During these staffings, I often ask not only whether a service was offered, but also how it was offered. Was transportation for services discussed? Was the parent’s work schedule considered? Caselaw informs us that the creation of a family service plan is generally evidence of CPS’s reasonable efforts to reunify the family,[12] but exploring the details of implementation of the plans helps caseworkers provide more persuasive testimony by explaining the specific efforts to assist the family, rather than relying on conclusory statements. These staffings do more than keep me informed about the status of our cases; they help caseworkers understand the importance of making, documenting, and being able to testify about the reasonable efforts they have made to assist the family. They also allow me to advise my client whether the evidence continues to support reunification efforts or whether the facts have shifted toward a recommendation of termination.
I also take every opportunity to train with my team to encourage their best casework, which includes assessment of the reasonable efforts being made during the case. Just the other day, I was training my investigations team on affidavit writing, and I reminded everyone of the importance of articulating reasonable efforts in those affidavits.[13] It is easy to become complacent in writing affidavits because it represents their last task before closing a case, but I remind the affidavit writers that these affidavits in support of removal petitions are actually the first task in the creation of our legal cases! The reasonable effort requirement begins with decisions to remove children from their parents.
Developing the record for trial and appeal
As affidavit writers sometimes become complacent when writing removal affidavits, we prosecutors can also become so wrapped up in the reasons why termination is a just resolution to a CPS case that we might become complacent in our presentation of the case to the court. It’s tempting: The case feels so fresh and familiar to us in the trial courtroom that we can find false comfort in assumed facts. After all, the judge on the bench is the same person who has heard the removal facts at the adversary hearing and ruled in our favor. He is also the same judge who has heard how CPS attempted a monitored return of the child, only for the parent to squander that opportunity and test positive for cocaine. That familiarity can be emotional for the CPS team and just might change how we present the case to the court at trial.
But this is where I need to remind myself (and perhaps you) that we CPS prosecutors cannot fall into the trap of assuming facts or abbreviating testimony because it all feels so familiar to us. Simply because all of us in the courtroom know why the parents deserve to have their rights terminated, and that it was most certainly in the child’s best interest, we must be mindful that the courtroom isn’t always our final audience. Facts that may be familiar to the trial judge are invisible to the appellate court—unless those facts are affirmatively developed in the record. The appellate court reviews the transcripts and exhibits, not institutional knowledge, docket history, or silent assumptions shared by the participants at trial.
We CPS prosecutors must create a solid trial record that can withstand the scrutiny of appellate courts.[14] And the work that satisfies CPS’s statutory obligations throughout the life of the legal case is often the same work that protects the judgment on appeal. We are not creating a record merely because an appeal may happen; we are creating a record because CPS’s reasonable efforts are themselves a fact issue that should be affirmatively demonstrated. By the time the case reaches a termination trial, CPS has spent months working with the family, identifying is- sues and facilitating services, ensuring parent-child visits occur, addressing barriers to reunification, and exploring less restrictive alternatives to termination. And likewise, when termination ultimately becomes the appropriate outcome, the record should tell that story clearly and completely. It should reflect not only why termination was necessary, but also the efforts to avoid it.
Appellate courts do not review the case that could have been presented; they review the record that was actually created. Consequently, a termination judgment is only as strong as the evidentiary record supporting it. Critical facts that are assumed to be understood by the court—but that are never fully developed through testimony or admitted exhibits—effectively do not exist for appellate purposes. Therefore, the trial record should answer these fundamental questions, among many others:
• Why was removal necessary?
• What safety concerns existed at the outset of the case?
• What services and interventions were offered to address those concerns? What reasonable efforts were made?
• How did CPS assist the parents in accessing and completing services?
• In cases where a parent is incarcerated, did we call the facility chaplain to coordinate services that were available for the parent? Are those particular services reflected in the family service plan? Were they discussed with and set up for the incarcerated parent?
• What progress, if any, was achieved in completion of services?
• What barriers prevented reunification?
• Why did CPS ultimately conclude that termination is necessary to protect the child?
When these questions are answered through detailed testimony and documentary evidence, the trial court’s findings become firmly grounded in the record. Don’t leave a void in the record about the service plan and its creation, which was tailored not only with the parents but also for their needs. Nor should we omit establishing details such as transportation offered for services or parent-child visits. The appellate court is then able to evaluate not only isolated incidents of parental conduct, but also the entire history of CPS’s involvement and the extensive and reasonable efforts to achieve permanency. That is what is expected of CPS to terminate parental rights.
In conclusion
The reality of our practice as CPS prosecutors is that some of our most important audiences are not in the courtroom. The appellate justices reviewing a termination judgment will never meet the child, parents, caseworker, or investigator. They will not have the benefit of the countless conversations, staffings, and court settings that shaped the case. They will know only what we preserved in the record.
That reality should influence how we approach every stage of a CPS case. From the initial removal decision through final trial, CPS is repeatedly called upon to demonstrate its reasonable efforts to protect children, support families, and pursue permanency. When those efforts are documented, discussed, and developed throughout the life of the case, they become more than statutory obligations—they become the foundation of a record capable of sustaining the trial court’s judgment on appeal. And those efforts should be made. Termination is intended to be a last resort.
So, yes—let’s go to trial. But let’s do so with the broader objective of building every case understanding that the record we create today may one day be the only voice speaking for the child before an appellate court. If we make and document reasonable efforts throughout the life of the case, we have done our best to ensure that trial victories are not only achieved but preserved.
[1] In the May–June 2026 issue of The Texas Prosecutor journal, “Trial preparation for termination of parental rights”; www.tdcaa.com/journal/trial-preparation-for-termination-of-parental-rights.
[2] See, e.g., four recent cases on termination issues issued by the Texas Supreme Court on the same day: In the Interest of H.S., B.S., and M.S., No. 24-0307 (Tex. June 5, 2026); In the Interest of K.N., K.L., K.L, and K.L., No. 24-0881 (Tex. June 5, 2026); In the Interest of C.S. Jr. and Z.S., No. 25-0008 (Tex. June 5, 2026); In re S.H., No. 26-0030 (Tex. June 5, 2026).
[3] Tex. Family Code §161.001(f).
[4] Tex. Family Code §262.001.
[5] You can find it at https://texaschildrenscommission.gov/ media/v4ibvcxl/08-reasonable-efforts-checklist-long.pdf.
[6] Tex. Family Code §§262.102(a)(6) and 262.107(a)(5).
[7] Tex. Family Code §262.201(g)(2), (3), (g-1)(2).
[8] Tex. Family Code §263.202(b)(1).
[9] Tex. Family Code §§263.306(a-1)(5)(C) and 263.5031.
[10] Tex. Family Code §161.001(f).
[11] Tex. Family Code §263.5031(a)(4)(E).
[12] In the Interest of M.N.M., 708 S.W.3d 321 (Tex. App.—Eastland 2025, pet. denied).
[13] Helpful tip No. 1: Assure attendance at trainings on important topics such as affidavit-writing by including the investigation unit program director in the scheduling and asking the program director to make attendance mandatory. Helpful tip No. 2: Detailed and thorough removal affidavits are not just beneficial for the casework and achieving removal but also assist at trial later. In those instances where an investigator is no longer employed by CPS when trial comes around, that person will be wholly reliant on the affidavit to review and prepare, as he will not have access to the narratives as he would’ve while employed. So you might receive some appreciation if you encourage detailed affidavits, if for no other reason than for this purpose.
[14] If you doubt yourself in trial preparation, speak to your appellate counsel, and he or she will certainly (and kindly) remind you of the importance of this statement.