Family Code 161.001(b)(1)(E) Endangerment Sufficiency | In re J.S.C. (2025)

In the Interest of J.S.C. and J.M.C., Children, 10-25-00467-CV, May 21, 2026.

On appeal from 335th District Court of Burleson County, Texas

Synopsis

The Tenth Court of Appeals held that legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(E) based on Father’s own endangering course of conduct. The court rejected the argument that Father had to know of Mother’s endangering conduct before his rights could be terminated under subsection (E), emphasizing that scienter is not required for a parent’s own acts and omissions to constitute endangerment. Repeated incarceration, methamphetamine use and related criminal exposure, active avoidance of the Department, and prolonged absence from the children’s lives were enough to sustain the finding.

Relevance to Family Law

Although this is a termination case, its practical reach extends beyond CPS litigation. Texas family-law litigators handling SAPCRs, modifications, conservatorship disputes, geographic restrictions, supervised-access requests, and even divorce cases involving children should pay attention to how appellate courts frame “endangering conduct” as a pattern rather than a single event. The opinion reinforces that criminal instability, drug-related conduct, intentional noninvolvement, and avoidance of adjudicated parental responsibilities can materially affect conservatorship and possession arguments, even when the parent attempts to shift the focus to the other parent’s misconduct. For litigators, the case is a useful authority when arguing that a parent’s lifestyle instability is itself probative of risk to a child’s physical or emotional well-being.

Case Summary

Fact Summary

The Department removed the children from Mother’s custody based on concerns that included drug use, neglectful supervision, medical neglect, and Mother’s prior CPS history involving other children. Mother tested positive for amphetamines and methamphetamines, admitted drug use during pregnancy, and had avoided prenatal and postnatal care. Father attempted to frame the case as one turning on his lack of knowledge about Mother’s conduct, contending that he did not know of her drug use while pregnant or while caring for the children.

But the record did not stop with Mother. Father acknowledged that even if he had known about Mother’s conduct, he would not have intervened or contacted CPS because he did not “get involved in other people’s business.” More importantly, the Department developed independent evidence of Father’s own endangering course of conduct. Father testified that he had twice previously been to prison and, at the time relevant to trial, was facing charges in two counties, including a state-jail-felony methamphetamine possession charge. He admitted past methamphetamine use, including use after the children were born and shortly before his arrest five months before trial.

The record also showed sustained absence and nonparticipation. Before his arrest, Father did not attempt to arrange visitation or engage in services, in part because he had active warrants. Once he was located after arrest, the Department created a service plan that he could begin while in jail pending DNA results, but he declined to start. Father also argued that he should not be blamed for omissions occurring before paternity was formally established. The court, however, viewed the evidence as showing more than passive uncertainty: Mother had identified him as the father from the outset, he had visited the children when they were about two weeks old, taken photos with them, and even provided some financial help, yet he did not pursue paternity testing and the evidence suggested he actively avoided both the Department and adjudication.

Issues Decided

• Whether legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(E) based on Father’s own endangering conduct.
• Whether subsection (E) required proof that Father knew of Mother’s endangering conduct before his own rights could be terminated.
• Whether repeated incarceration, methamphetamine use and criminal exposure, and prolonged absence from the children’s lives can constitute an endangering course of conduct under subsection (E).
• Whether Father could rely on delayed paternity adjudication or lack of formal DNA confirmation to defeat an endangerment finding under subsection (E).

Rules Applied

The court applied Texas Family Code § 161.001(b)(1)(E), which authorizes termination when a parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the child’s physical or emotional well-being.

The court relied on several settled propositions:

• “Endanger” means to expose a child to loss or injury or to jeopardize the child’s well-being. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
• Under subsection (E), the inquiry is whether the child’s endangerment results from the parent’s conduct, including acts, omissions, and failures to act.
• A parent’s conduct need not be directed at the child, and the child need not suffer actual injury. Boyd, 727 S.W.2d at 533.
• Courts may consider conduct both before and after the child’s birth.
• Scienter may be required when the alleged endangerment is based on another person’s conduct, but scienter is not required for the appealing parent’s own acts to constitute endangerment under subsection (E).
• Imprisonment alone does not establish endangerment, but a course of repeated incarceration and its effect on the parent’s ability to provide daily care, support, and emotional presence is a proper factor. In re J.F.-G., 627 S.W.3d 304, 313 (Tex. 2021); Boyd, 727 S.W.2d at 533.
• Drug use, including methamphetamine use before and after birth and during the pendency of the case, is relevant to endangerment because it creates instability and uncertainty.
• A prolonged lack of contact, failure to visit, failure to cooperate with the Department, and failure to engage in services may also be considered as part of an endangering course of conduct.
• Knowledge of paternity is not a prerequisite to proving a parent’s own endangering course of conduct under subsection (E), and a parent may not benefit from delay in adjudication that the parent helped create.

Application

The court treated Father’s appellate argument as too narrow. Father attempted to recast the case as one involving only Mother’s dangerous conduct and his alleged lack of awareness of it. That framing might have had more force if the Department’s theory depended exclusively on Father knowingly placing the children with Mother despite her endangering behavior. But the court concluded that the evidence independently supported termination based on Father’s own course of conduct.

That course of conduct was not a single arrest or an isolated lapse. The opinion emphasizes a pattern: prior imprisonments, pending criminal charges, methamphetamine use after the children were born, a methamphetamine possession charge, active warrants that caused him to avoid the Department, failure to seek visitation, refusal to begin services when offered, and prolonged absence from the children’s daily lives. The court viewed these facts collectively, not atomistically. In doing so, it followed the Supreme Court’s recognition in J.F.-G. and the long-standing rule in Boyd that incarceration-related absence and instability may support a finding of endangerment when they are part of a broader course of conduct.

The paternity argument also failed because the record cut against Father’s claim of innocent uncertainty. He knew Mother claimed he was the father, visited the children shortly after birth, took photographs with them, and provided some assistance. Yet he did not take steps to resolve paternity and, according to the court, actively avoided the Department and parentage determination. On those facts, the court refused to let Father use the absence of formal DNA confirmation as a shield against subsection (E). The appellate court thus treated his avoidance, noninvolvement, and criminal instability as part of the same endangering narrative.

Holding

The court held that legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(E). It concluded that subsection (E) does not require proof that a parent had knowledge of another person’s endangering conduct when the termination finding is instead grounded on the parent’s own acts and omissions. Father’s repeated incarceration, methamphetamine use and criminal exposure, failure to engage with the Department, and absence from the children’s lives were sufficient to establish an endangering course of conduct.

The court also rejected Father’s argument that his conduct before formal paternity confirmation could not be considered. The court held that knowledge of paternity is not a prerequisite to proving a parent’s own endangering conduct under subsection (E), particularly where the record shows the alleged father had reason to believe the children were his and avoided clarification and involvement. On that basis, the court affirmed the termination judgment.

Practical Application

For trial lawyers, the most significant lesson is evidentiary framing. If the Department or opposing party has proof of the parent’s own instability, criminal conduct, drug activity, nonparticipation, and absence, do not let the appellate posture become a scienter debate about the other parent’s conduct. This opinion confirms that subsection (E) is fully sustainable on a parent’s independent course of conduct.

In custody and conservatorship litigation outside the termination context, the case is also valuable by analogy. A parent’s repeated jail exposure, active warrants, methamphetamine use, and failure to maintain a consistent role in the child’s life are facts that can support restrictions on possession, supervised visitation, drug testing, geographic limitations, or sole managing conservatorship for the more stable parent. The same is true in modification suits where one party must show that present circumstances materially affect the child’s welfare.

For counsel representing alleged fathers or late-identified fathers, the case is a warning against strategic delay. If your client believes he may be the father, he should promptly seek testing, establish contact, document support efforts, and begin services when offered. Delay coupled with avoidance can be characterized as part of the endangering conduct itself.

For appellate lawyers, this case is a reminder that sufficiency challenges under subsection (E) are rarely won by isolating each adverse fact. Courts look for a pattern. The stronger argument usually engages with the cumulative-conduct framework and attempts to distinguish instability from legal endangerment, rather than denying the relevance of plainly harmful facts.

Checklists

Building a Subsection (E) Record

• Obtain certified judgments, jail records, booking records, and pending-charge documentation.
• Tie incarceration to actual absence from the child’s daily life, missed support, missed medical care, and missed visitation.
• Develop specific testimony on drug use timing, especially use after the child’s birth and during the pendency of the case.
• Show how criminal conduct and drug use created instability, uncertainty, or emotional harm risk to the child.
• Introduce evidence of noncooperation with the Department, including ignored outreach, missed meetings, and refusal to begin services.
• Establish the parent’s lack of contact, missed visits, and failure to maintain a parental role.

Defending Against an Endangerment Claim

• Do not rely solely on the argument that the client lacked knowledge of the other parent’s conduct.
• Separate isolated incarceration from a broader alleged pattern if the facts permit.
• Present affirmative evidence of support, visitation, housing stability, sobriety, and treatment compliance.
• If paternity is uncertain, promptly initiate testing and document all efforts to confirm parentage.
• Begin services immediately when offered, even if parentage adjudication is pending.
• Create a record showing sustained efforts to establish a relationship with the child.

Handling Alleged or Unadjudicated Fathers

• Advise the client to seek DNA testing immediately.
• Document every attempt to contact the Department and the child’s caregivers.
• Provide financial support or in-kind support where legally and practically appropriate.
• Preserve evidence of visits, calls, letters, and requests for access.
• Avoid any conduct that suggests evasion, including failure to update address information or respond to outreach.
• If warrants or criminal exposure exist, address them proactively rather than allowing them to explain away total nonparticipation.

Using This Case in Conservatorship and Modification Litigation

• Frame chronic incarceration and criminal activity as evidence of instability affecting the child’s emotional and physical welfare.
• Use drug-related conduct to support requests for testing, treatment conditions, or supervised possession.
• Highlight prolonged absence and missed visitation as relevant to the child’s emotional well-being.
• Argue that avoidance of parental responsibilities is probative of future reliability.
• Connect the evidence to best-interest factors and practical parenting limitations, not just moral blame.
• Emphasize pattern evidence rather than any single bad fact.

Avoiding the Non-Prevailing Parent’s Mistakes

• Do not wait for formal DNA results before acting like a potentially responsible parent.
• Do not refuse available services while a case is pending.
• Do not allow active warrants or arrests to become the explanation for total disengagement.
• Do not assume lack of direct harm to the child defeats subsection (E).
• Do not treat methamphetamine use as collateral; courts view it as central endangerment evidence.
• Do not build the appellate theory around a narrow scienter argument when the record shows independent endangering conduct.

Citation

In the Interest of J.S.C. and J.M.C., Children, No. 10-25-00467-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Waco May 21, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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