By Leslie Odom
Assistant County & District Attorney in Ellis County
Everyone knows there are two things in life that are inevitable: death and taxes. But for those of us practicing in the world of child protection law, let me propose a third inevitability: our dismissal deadline.
Texas Family Code §263.401 provides that unless a trial on the merits has commenced or the court makes a finding that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship (TMC) of CPS (Child Protective Services), the case is automatically dismissed. Therefore, in practice, when we find ourselves in the life of a pending TMC case well beyond the status hearing and likely on the second permanency hearing, we must have an eye on the calendar and the upcoming dismissal date. We should be thinking about and preparing at least initially for trial.
And it’s that thought that leads me to my intentions for this article. Whether you are new to child protection law or have been practicing several years, my intent is to provide practical guidance on preparation for trial, whether bench or jury. I hope to offer some strategies for identifying and organizing the State’s strongest evidence and witnesses in a fashion that clearly tells the story of the case for the factfinder.
The burden we must meet
In CPS termination trials, we must meet the higher civil burden of proof of clear and convincing evidence, which means that we must present evidence such that the factfinder is left with a “firm belief or conviction as to the truth of the allegations sought to be established.”[1] We must establish by clear and convincing evidence each of the following:
1) one or more of the acts and/or omissions listed in Texas Family Code §161.001(b)(1) for termination of parental rights exist,
2) termination of parental rights is in the best interest of the child, and
3) CPS has made reasonable efforts to return the child to the parent prior to the trial on the merits, but despite those efforts, “a continuing danger remains in the home that prevents the return of the child to the parent.”[2]
The most common acts and/or omissions (commonly referred to as termination grounds) on which I seek termination of parental rights are proving that the parent “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child” and/or “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child,” most commonly referred to as the “D and E grounds.”[3] But don’t overlook some of the more particularized grounds, such as proving that the parent’s criminal history includes a community supervision sentence (even deferred) for being responsible for causing the serious injury of a child constituting a violation of Texas Penal Code §22.04, or for delivering the child to a designated emergency infant care provider without expressing an intent to return.[4]
Knowing our burden of proof and that trial is approaching, I first urge prosecutors to check and double check the pleadings. As we reach the point in the case past permanency hearings and perhaps even mediation, please go back and check the grounds on which you are seeking termination to ensure you’ve properly pled the case.[5] Do the grounds continue to mirror the path of the case and the evidence that is being gathered? If necessary, timely amend the pleadings in compliance with the governing scheduling order and Texas Rules of Civil Procedure. Once you feel confident in the pleadings, begin the evidence and witness gathering and organization.
How to begin preparation
I work through each CPS case with an eye on the dismissal date and trial date from very early on. The anchor in this regard can be the court’s scheduling order, which will necessarily establish the trial date (determining bench or jury if demand is timely filed); that then allows for the scheduling of pretrial deadlines and other statutory hearing dates.
How did we get here? Why are we seeking termination? That’s the story to explain to the jury or judge. Unlike a criminal jury trial with a focus on whether one incident on or about one particular date occurred in your county in Texas, CPS prosecutors must be able to describe for the factfinder whatever led to CPS intervention in the children’s lives and their removal from their parents and what the year (or year-plus in cases where extensions have been granted) looked like not only working with the parents in attempts to remedy those abuse or neglect issues but also how the children have benefited from that time. Prosecutors should also paint the picture of what their lives could look like with a different permanency path that does not include the danger presented by their biological parents.
What evidence to gather
Perhaps by virtue of the fact that the basic grounds of D and E are pled in each of my CPS cases, or perhaps because CPS cases tend to have similar fact patterns, the evidence I gather for termination trials tends to fall into similar categories from case to case. Generally, those categories are:
Court records. For every trial, I prepare and mark as exhibits the order granting emergency relief, temporary orders, status hearing order, and permanency hearing orders. Please be mindful that while the court can take judicial notice of the “existence of certain documents in its records, it may not take judicial notice of the truth of factual statements and allegations the pleadings, affidavits, or other documents in its records.”[6] So why do I want these orders as marked exhibits for entry into evidence? As an example, each of these orders will indicate whether the parent appeared at each setting. A parent’s appearance and participation in the CPS case can be quite compelling evidence. I want those orders entered as evidence to corroborate the caseworker’s testimony and further establish a parent’s pattern of behavior or absence in the case.
Records from service providers for each parent and child. I will request from all service providers for each parent and each child a copy of their records with an executed business records affidavit. My practice is to gather these records periodically throughout the life of the case and file them with a Notice of Filing in compliance with Texas Rule of Evidence (TRE) 803(6). Of course, this keeps me prepared in advance of trial, but the practice has saved me as well throughout my cases. Even this morning, I found this practice helpful! On the eve of pretrial, the respondent mother filed a motion for continuance of the trial date based on claims that she’s been working and will continue to work on her services. I could provide the court copies of our filed service provider records indicating unsuccessful discharge from services, thereby swiftly defeating her claims. Motion for continuance denied.
Reports and orders related to genetic testing. For the reasons stated previously regarding court orders, I always have the orders adjudicating parentage or those excluding parentage marked as exhibits. In conjunction with those orders, I will also have the genetic testing reports marked as exhibits.[7]
Family service plans and evaluations. These exhibits are essential. Proof of implementation of a family service plan for each parent is considered evidence of CPS’s reasonable efforts to return a child to the parent, which is relevant and necessary evidence throughout the case but required at trial.[8]
Certified criminal records for each parent. Certified copies of criminal convictions relevant to the case are admissible as public records.[9]
Correspondence between CPS and each parent. Each parent will have an exhibit in this category, and the documents in each include copies of every letter that has been sent throughout the case, regular and certified mail, to the known addresses for each parent as well as text communication threads.
Photographs, videos, or other recordings. You know, the adage “a picture is worth a thousand words” is true!
Where to find trial evidence? Read the CPS case file. Yes, I realize it’s hundreds (and hundreds) of pages, but if you don’t know what is in the case file and what is not, you cannot best protect your client nor present a thorough case to the factfinder. Effective organization is essential. I create a comprehensive exhibit list and ensure all records are marked well in advance of trial. This in turn allows time to organize and prepare responses to anticipated evidentiary objections.
Organizing sponsoring witnesses for the evidence gathered
Now that you have reviewed the case file and organized the evidence necessary to prove the grounds for termination, next determine who the qualified witnesses are. There are obvious selections such as CPS investigators, caseworkers, and their supervisors, but examine whom the parents and children have had contact with throughout the case and therefore who are most connected to the evidence you wish to present. Witness preparation is particularly critical.
I recommend making time to meet with each and every witness you intend to call to testify at trial. I prefer to have met with each of my witnesses at least once before seeing them in court on the day of trial as a rule. There is an interesting exception to that rule, but more on that later.
I also recommend reading and utilizing the insight provided in the article “Training witnesses to testify in court,” written by Mike Holley and Robyn Beckham.[10] They highlight the critical importance of thorough witness preparation and outline the sort of foundational information integral to preparing witnesses for court. The article ranges from understanding courtroom terminology to witness demeanor in and outside of the courtroom. The insight is very similar to how I prepare my witnesses for termination trials. A sampling of the types of witnesses you’ll encounter includes:
Our central witnesses. CPS investigators and caseworkers must be prepared to testify about the history of the case, the services offered, parental compliance and behavioral changes exhibited (or lack thereof), and the child’s current placement. CPS witnesses must be able to explain why we created the service plans and the goals of those service plans. I do not want them using CPS-speak or legal jargon on the witness stand, but I do need them to think about the words they use. For example, “The children were removed as a result of the court ordering removal” is preferable to “We took the kids.” Make sure they review not just the case file, but also their narratives and contact logs, and look at the exhibits with them in advance.
Expert witnesses. You will likely rely on psychologists, therapists, medical professionals, or substance abuse counselors. Their testimony should be clearly tied to their expertise and services provided to the parents or children in the case.
Caregivers. The placement for the children, whether foster or relative, can provide powerful testimony regarding the child’s progress, needs, and the stability of the current placement.
CASA workers. If a CASA (Court Appointed Special Advocate) volunteer and supervisor are assigned in your case, please make time to meet with them. I’ve always found trial preparation with CASA beneficial as well as appreciated. These people have likely spent a great deal of time with the child by observing parent-child visits and visiting the child’s placement. CASA workers can provide first-hand accounts of their observations, which can really help prove the best interest element of your case.[11]
The child. I know that for bench trials, the judge to whom I present my case very much prefers to hear from the child in termination trials. Fortunately, I rarely encounter opposition to that visit occurring as a conference with the child in chambers with the child’s ad litems. I have on one occasion found it necessary to call children to the witness stand in a jury trial. It was on one of the most egregious sexual abuse cases I have prosecuted in my career. It involved three teenage girls and one little boy. The children’s biological mother had chosen to live with the perpetrator (who was also the father of the little boy), but she claimed no knowledge of the abuse. It was essential to connect the mother to the sexual abuse in order to prove our D and E grounds. The evidence showed that at a minimum she was complacent—the perpetrator would select which girl would remain in the home with him as the mother would take the other children with her daily to run errands. The involvement with the girls’ attorney and guardians ad litem in the case is particularly memorable to me. These were strong, amazing girls, and their strength and commitment to proving their story to the jury was matched by the strength and commitment of their ad litems. With that case and with that unique combination of factors, their testimony proved not only critical to success but also necessary in considering whether to call them to the stand. That decision should never be taken lightly.
At the conclusion of the prep meeting with witnesses, they should understand not only what they will testify to, but also why their testimony matters in the context of the case.
Prepare to call the respondent parent to testify
As an exception to my general rule of not asking questions I don’t know the answers to, CPS attorneys should be prepared—and willing—to call the parent as a witness. I always call the parents in my case in chief. The timing of when I call them can vary depending on certain factors. In the case I mentioned just previously with the strong girls, I called their mother immediately after the children left the witness stand.
First, in a civil proceeding, such as CPS prosecution, we are permitted to call the parent as a witness. The parent may not assert a blanket refusal to answer questions but must assert his or her Fifth Amendment privilege on a question-by-question basis.[12] Beyond that, jurors can and should be instructed that they may draw negative inferences from the parent’s refusal to answer questions.[13] Factor this into your trial strategy. When you are working with other witnesses and outlining what you anticipate their testimony will prove, consider what specific facts you can challenge the parents with or what admissions you can obtain from them. Build your examination with the expectation that some questions may draw a Fifth Amendment invocation, and use that to your advantage where appropriate.
But further, it always amazes and saddens me when parents do testify. And this is what brings me to asking questions I don’t know the answer to. I’ve encountered so many parents who do not know the color of their children’s eyes or their birthdays. Many cannot tell a favorite memory of their child that comes across as heartfelt or even true. So I do in some cases ask such questions not knowing how the parent will respond. Most of the time, the answers have proved favorable for the termination case. And alternatively, if they can answer the questions correctly or provide fond memories, I generally follow with a challenge to them: Despite this precious memory of this precious child, you’ve continued with methamphetamine as your priority?
In utilizing this strategy, I have also prepared the CASA volunteer or the caseworker with similar questions. CASA workers always provide answers that stand in stark contrast to those provided by the parent. CASA knows the child’s birthday and generally describes the child with care and alacrity.
What’s the difference?
When preparing for a bench trial as opposed to a jury trial, the difference is the type of audience you are attempting to persuade. Always remain mindful of the record you are creating, of course, as the appellate division will certainly appreciate your efforts, but also because you want the record to reflect the case well if challenged on appeal. There is some nuance, though, in presenting to the court versus jurors.
Jurors bring their own diverse life experiences and potential biases, and they are often influenced by the emotional weight of the case. As a result, successful jury advocacy requires a careful voir dire and an emphasis on storytelling that connects the evidence to the child’s safety and long-term stability.
By contrast, a bench trial places the decision in the hands of a judge who is well-versed in the Family Code and applicable caselaw. The focus shifts from persuasion to precision. Judges are more likely to expect a structured presentation that methodically tracks each statutory ground and best-interest factor. While emotional resonance still matters, prosecutors should remain grounded in clear, admissible evidence tied directly to the legal standards the court must apply.
In conclusion
Whether to the bench or jury, just tell the children’s story. Termination of parental rights cases are among the most consequential proceedings in child welfare law. And if you haven’t reached some form of agreed disposition of the case, you know that trial is inevitable.
If you are seeking termination, then you have reached a point where the parents have had their chance to provide for the children and have failed. The children should be the focus. Timely, thorough evidence gathering and witness preparation will benefit you so very much in your trial practice and advocacy. But also, find your own way of storytelling in this practice—sincerity resonates with factfinders. Provide the factfinder the evidence and motivation to make the decision for termination. And ideally, have an alternative permanency plan to present to them in making their determination on what is in the children’s best interest.
Now, let’s go to trial!
[1] Tex. Family Code §101.007.
[2] Tex. Family Code §161.001.
[3] Tex. Family Code §161.001(b)(1)(D) and (E).
[4] Tex. Family Code §161.001(b)(1)(L) and (R).
[5] Tex. Family Code §§102.003 and 102.008.
[6] In re C.J.S., 702 S.W.3d 573 (Tex. App.—Houston [1st Dist.] 2024), reh’g denied (Oct. 3, 2024).
[7] Genetic testing reports meeting the requirements set forth in Tex. Family Code §160.504 are self-authenticating documents.
[8] In re F.E.N., 542 S.W.3d 751 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
[9] Tex. R. Evid. 803(22).
[10] A thoughtful, educational article published in the TDCAA journal, January–February 2026.
[11] When I meet with my CASA, I always bring a copy of the Holley factors with me to utilize as prompts in our conversation and trial preparation. Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).
[12] Texas Dept. of Public Safety Officers Ass’n v. Denton, 897 S.W.2d 757 (Tex. 1995); In re Verbois, 10 S.W.3d 825 (Tex. App.—Waco 2000, pet. denied).
[13] Wilz v. Flournoy, 228 S.W.3d 674 (Tex. 2007).