Family Code § 161.001(b)(1)(O) Supports Termination for Drug Use: In re M.S. (2026)

In the Interest of M.S., M.J.S., and N.E.S., Children, 04-25-00782-CV, June 10, 2026.

On appeal from 198th Judicial District Court, Bandera County, Texas

Synopsis

The Fourth Court of Appeals held that termination was supported under Texas Family Code § 161.001(b)(1)(O) where the evidence showed the father used methamphetamine in a manner that endangered the children and failed to complete a court-ordered substance abuse treatment program. Because one predicate ground plus best interest is enough to affirm termination, the court did not need to reach the father’s challenge to an additional predicate ground once subsection (O) was sustained.

Relevance to Family Law

Although this is a termination case, its practical significance reaches well beyond CPS litigation. For Texas family law litigators handling SAPCRs, modifications, divorces involving children, and even property cases colored by addiction-driven financial waste or family violence, In re M.S. reinforces a familiar but increasingly well-defined appellate theme: drug use is most persuasive when tied to parenting impairment, domestic violence, instability in the home, noncompliance with court orders, and concrete danger to the children. In custody disputes, this case is a roadmap for proving—or defending against—arguments that substance abuse affects conservatorship, possession, supervised access, injunctive relief, and related best-interest findings.

Case Summary

Fact Summary

The Department had already been involved with the family through family-based safety services before removal. Its concerns centered on neglect, the condition of the home, and the father’s methamphetamine use. After the parents separated, the mother and children moved in with the maternal great-grandmother. The Department later found the mother intoxicated in the morning while caring for the children, and the father was not present and was not following recommendations arising from his drug assessment.

The Department filed its petition in December 2024 seeking removal and, if reunification failed, termination. The mother engaged in services and reunified with the children. The father, by contrast, did not engage in services, did not attend trial, and the Department proceeded to final termination against him.

The evidence described serious methamphetamine abuse. The mother testified the father injected methamphetamine daily, kept drugs in the home, and used them while the children were present. The evidence also tied his drug use to emotional detachment, physical abuse, threats with firearms, and a pattern of intimidation. The service plan reflected allegations that he shot a gun near the mother’s head, shot a dog, threatened to kill the mother, carried a gun to intimidate her, and threatened violence if the children were removed. The children reportedly witnessed repeated violence against the mother, including choking, covering her mouth, and hitting that caused bruising.

The home environment also reflected deterioration and instability. According to the opinion, the family experienced financial strain while the father was using drugs, and the house fell into severe disrepair, including holes in the floor and pest infestations. The court treated those surrounding circumstances not as background noise, but as part of the larger evidentiary picture showing endangerment and impaired parenting.

Issues Decided

• Whether legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(O).
• Whether legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(N).
• Whether legally and factually sufficient evidence supported the trial court’s best-interest finding under Texas Family Code § 161.001(b)(2).
• Whether the court of appeals needed to address every challenged predicate ground once one predicate ground and best interest were affirmed.

Rules Applied

The court applied the familiar termination framework under Texas Family Code § 161.001(b): the Department must prove by clear and convincing evidence both a predicate ground under subsection (b)(1) and that termination is in the child’s best interest under subsection (b)(2). The opinion also reiterates the statutory definition of clear and convincing evidence in Family Code § 101.007.

As to subsection (O), the court relied on the current version of Texas Family Code § 161.001(b)(1)(O), which now covers controlled-substance use that endangers the child’s health or safety, coupled with either failure to complete a court-ordered substance abuse treatment program or continued abuse after completion. The opinion expressly notes the 2025 legislative amendment that shifted the former lettering, so older cases may discuss the same substance-abuse ground under former subsection (P).

On endangerment, the court leaned heavily on In re R.R.A., 687 S.W.3d 269 (Tex. 2024), emphasizing several principles that matter to trial lawyers: endangering conduct need not be directed at the child; actual injury is unnecessary; drug use alone may not always be enough; and appellate courts should not evaluate drug-use evidence in isolation. Instead, courts are to assess whether surrounding circumstances show that illegal drug use created a substantial risk to the parent’s ability to safely parent.

The court also cited authority recognizing that domestic violence, want of self-control, and a propensity for violence can support endangerment findings, including In re P.W., 579 S.W.3d 713 (Tex. App.—Houston [14th Dist.] 2019, no pet.). On appellate review, the opinion follows the standard legal- and factual-sufficiency authorities, including In re J.F.C., In re J.P.B., In re H.R.M., and In re J.F.-G., with the usual deference to the trial court as factfinder in a bench trial.

Application

The Fourth Court did not treat the father’s methamphetamine use as a standalone moral failing. It framed the evidence the way appellate courts increasingly expect trial courts to frame it: as a pattern of controlled-substance use linked to danger in the children’s actual living environment. The evidence showed daily intravenous methamphetamine use, drugs kept in the home, and use in the children’s presence. But the Department did more than prove use. It connected that use to violence, instability, neglect, financial deterioration, and the father’s inability or unwillingness to function as a safe parent.

That linkage mattered. The father’s substance abuse was accompanied by evidence that he became emotionally detached and physically abusive while using. The service-plan evidence and witness testimony painted a household marked by firearm threats, intimidation, assaults on the mother, and exposure of the children to domestic violence. Under the endangerment authorities the court cited, that constellation of facts was more than sufficient for a reasonable factfinder to form a firm conviction that the father’s drug use endangered the children’s health or safety.

The subsection (O) analysis also required proof that the father failed to complete a court-ordered treatment program or resumed abuse after completing one. The opinion states that he was not following recommendations from his drug assessment, failed to engage in services, and did not complete the required treatment component of his plan. That noncompliance was not treated as a technical default. Rather, it confirmed that the risk identified by the Department remained unresolved at the time of trial.

From an appellate perspective, the father’s absence from trial and lack of service engagement left the trial court with largely unrebutted evidence. The court of appeals then applied ordinary sufficiency deference, especially on credibility and inferences, and concluded the evidence under subsection (O) was enough to affirm. Once that was true, the court had no need to address the additional predicate-ground challenge so long as best interest also stood.

Holding

The court held that legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(O). The evidence showed the father used a controlled substance—methamphetamine—in a manner that endangered the children’s health or safety, and he failed to complete a court-ordered substance abuse treatment program. The surrounding facts, including domestic violence, threats with firearms, drug use in the home, and instability in the children’s living conditions, allowed the trial court to form the required firm belief or conviction.

The court also held that once subsection (O) was sustained, it did not need to address the father’s challenge to the alternative predicate ground under subsection (N), provided the best-interest finding was also supported. That is consistent with the settled rule that one predicate ground under § 161.001(b)(1), coupled with a valid best-interest finding under § 161.001(b)(2), is enough to support affirmance.

Finally, the court affirmed the termination order in full, including the best-interest determination. While the opinion excerpt provided here focuses primarily on the predicate-ground analysis, the disposition makes clear that the court found the evidence sufficient on best interest as well.

Practical Application

For practitioners representing the Department, intervenors, or children’s interests, In re M.S. is a strong appellate citation when the record contains not just drug use, but drug use embedded in a broader course of dangerous conduct. The case is especially useful where the evidence shows the parent used around the children, stored drugs in the home, became violent or unreachable while using, failed to engage in treatment, or allowed the household to deteriorate. It supports the proposition that the best records are narrative records: use, plus context, plus parenting impact, plus noncompliance.

For attorneys representing parents, the opinion is a warning that generalized attacks on “drug-use evidence” may fail if the Department has built a record showing practical impairment. The defensive focus should be on severing the link between use and endangerment, documenting meaningful treatment compliance, disproving ongoing use, and showing consistent, safe parenting behavior. Trial counsel must also appreciate that failing to appear, failing to engage in services, and failing to create a competing evidentiary narrative can be outcome-determinative on appeal.

In private family law disputes, the opinion is not directly about conservatorship modifications or possession restrictions, but its logic is highly transferable. Where one parent seeks sole managing conservatorship, supervised possession, geographic restrictions, or injunctions based on the other parent’s substance abuse, this case reinforces that the strongest proof is functional proof: how addiction altered conduct, escalated violence, destabilized finances, degraded the home, or impaired supervision. That same analysis can influence temporary orders, final conservatorship rulings, and modification proceedings under the best-interest standard.

Property litigators in divorce cases should also note the evidentiary theme. Drug addiction tied to financial collapse, unsafe living conditions, or wasteful conduct may influence disproportionate division arguments, reimbursement theories, or fault-based narratives, even though In re M.S. itself arises from termination law. The strategic lesson is the same: contextualize the addiction and document its legal consequences.

Checklists

Building a Subsection (O) Record

• Prove the substance qualifies as a controlled substance under Chapter 481.
• Develop evidence of frequency, duration, and method of use.
• Show the use occurred in the child’s presence or in the home when possible.
• Tie the use to concrete endangerment facts rather than relying on use alone.
• Offer evidence of parenting impairment, emotional unavailability, neglect, or unsafe supervision.
• Connect the substance abuse to domestic violence, firearm use, or threats if supported by the record.
• Prove the parent failed to complete a court-ordered treatment program, or relapsed after completion.
• Admit the service plan and treatment requirements clearly and cleanly into evidence.
• Establish noncompliance through testimony, records, and missed services.
• Preserve a best-interest record independent of the predicate ground.

Proving Endangerment Beyond Bare Drug Use

• Present testimony explaining how the parent’s drug use affected day-to-day parenting.
• Document unsafe home conditions linked to the parent’s addiction or neglect.
• Use witness testimony to show the child’s exposure to violence or volatility.
• Introduce evidence of threats, assaults, police involvement, or protective concerns.
• Show financial instability or household deterioration caused by ongoing use.
• Demonstrate the parent’s absence, detachment, or incapacity during relevant periods.
• Use corroborating records where possible, including service plans, assessments, and case notes.

Defending Against a Subsection (O) Termination Theory

• Challenge whether the Department proved actual endangerment rather than mere use.
• Contest weak temporal links between historical use and present danger.
• Show full or substantial compliance with court-ordered treatment.
• Present documentation of sobriety, testing, counseling, and aftercare.
• Offer evidence of stable housing, employment, and safe caregiving.
• Rebut allegations of domestic violence or show they are unconnected to drug use if factually supportable.
• Ensure the parent appears at trial and provides a coherent remedial narrative.
• Object to conclusory or hearsay-heavy proof where appropriate and preserve error.
• Develop affirmative evidence that the child was not exposed to the alleged conduct.
• Attack best interest separately; do not assume disproving the predicate ground alone is enough.

Trial Preparation for Family Law Counsel in Related Custody Cases

• Frame substance-abuse evidence around conservatorship-specific risk.
• Seek targeted temporary orders for testing, treatment, and supervised possession when warranted.
• Build a chronology linking use to missed visits, unsafe exchanges, or impaired judgment.
• Use neutral witnesses when available, including counselors, teachers, or supervisors.
• Prepare direct examination that explains why the conduct matters to the child’s safety and stability.
• Avoid overreliance on moral condemnation; focus on legally relevant risk.
• If representing the accused parent, front-load rehabilitation evidence and monitoring safeguards.
• Create a record that gives the trial court concrete alternatives short of severe restriction when appropriate.

Citation

In the Interest of M.S., M.J.S., and N.E.S., Children, No. 04-25-00782-CV, 2026 WL ___ (Tex. App.—San Antonio June 10, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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