Family Code 161.001(b)(1)(D) and (E) Insufficient as to Father | In re P.H.S. (2026)

In the Interest of P.H.S. and E.K.S., Children, 04-25-00838-CV, June 24, 2026.

On appeal from 224th Judicial District Court, Bexar County, Texas

Synopsis

The Fourth Court of Appeals held the evidence was legally insufficient to support termination findings against Father under Family Code section 161.001(b)(1)(D) and (E). The court reversed and rendered those predicate findings because the record did not show Father knowingly subjected the children to endangering conditions or knowingly engaged in or permitted endangering conduct, even though the termination order was otherwise affirmed on other grounds.

Relevance to Family Law

Although this is a termination case, its practical reach extends well beyond CPS litigation. For family-law litigators handling SAPCR modifications, conservatorship disputes, geographic restrictions, protective-order litigation, and even fault-driven divorce narratives, P.H.S. is a reminder that “endangerment” remains an evidence-heavy, parent-specific inquiry: the record must connect the parent to knowing exposure, not merely show that the children were in a bad situation somewhere in the family system. Strategically, that matters whenever one side tries to convert generalized household dysfunction, a co-parent’s misconduct, or a dangerous third party into a dispositive finding against another parent without proof of knowledge, participation, or conscious disregard.

Case Summary

Fact Summary

The Department initially became involved while the children were living with Mother. The reported concerns centered on neglect, unsanitary and unfit home conditions, and domestic violence in the home. Rather than immediately remove the children, the Department implemented Family Based Safety Services in August 2024.

The opinion reflects that Mother did not adequately correct the home conditions and failed to appreciate the danger those conditions posed. A safety plan prohibited Mother’s paramour from residing with the children. Mother first sent the children to live with a friend while she remained with the paramour, but later brought the children back to live with her and the paramour in violation of the plan. Afterward, one child suffered bruising to one side of his face, and Mother could not identify an adequate supervisor to keep the children safe during FBSS. The Department then sought removal.

The Department filed its termination petition in November 2024. After a bench trial in November 2025, the trial court terminated Mother’s rights under subsections (D) and (E), and Father’s rights under subsections (D), (E), (N), and (P), together with best-interest findings.

On appeal, Father challenged the sufficiency of the evidence on subsections (D), (E), and (N), and best interest. The Fourth Court’s opinion, at least in the portion provided, squarely addressed the due-process significance of the (D) and (E) findings and concluded the evidence did not legally support those endangerment predicates as to Father.

Issues Decided

• Whether legally sufficient evidence supported the finding that Father knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being under Texas Family Code section 161.001(b)(1)(D).

• Whether legally sufficient evidence supported the finding that Father engaged in conduct, or knowingly placed the children with persons who engaged in conduct, that endangered their physical or emotional well-being under Texas Family Code section 161.001(b)(1)(E).

• Whether the appellate court was required to review the challenged (D) and (E) findings even if another predicate ground independently supported termination.

Rules Applied

The court applied the familiar two-part termination framework under Texas Family Code section 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 children’s best interest under subsection (b)(2).

The court also relied on the clear-and-convincing standard in section 101.007 and the established legal- and factual-sufficiency review standards from Texas Supreme Court precedent, including In re J.F.C., In re J.P.B., and In re H.R.M. In legal-sufficiency review, the court examines the evidence in the light most favorable to the finding and asks whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true.

As to the substance of endangerment, the court reiterated the distinction between subsections (D) and (E):

• Subsection (D) focuses on the children’s environment—the conditions or surroundings in which the children were placed or allowed to remain.
• Subsection (E) focuses on parental conduct and requires a conscious course of conduct, not merely a single act or omission.

The court further relied on the due-process line of cases requiring appellate review of challenged (D) and (E) findings because those findings can later serve as the basis for termination under subsection (M) as to other children. Those authorities included:

• In re N.G., 577 S.W.3d 230 (Tex. 2019)
• In re C.W., 586 S.W.3d 405 (Tex. 2019)
• In re J.W., 645 S.W.3d 726 (Tex. 2022)
• In re R.R.A., 687 S.W.3d 269 (Tex. 2024)

Application

The court’s analysis turned on a disciplined parent-by-parent approach. The record showed substantial concerns about the children’s living conditions while they were with Mother: unsanitary housing, FBSS intervention, a violated safety plan involving Mother’s paramour, and an unexplained facial injury to one child. That evidence may have been powerful as to Mother, but the appellate court refused to let those facts do doctrinal work against Father without proof that he knowingly exposed the children to those same risks or personally engaged in endangering conduct.

That is the key lesson from the decision. Endangerment under subsection (D) is not satisfied by proving that the children lived in dangerous surroundings in the abstract; the Department had to show Father knowingly placed them there or knowingly allowed them to remain there. Likewise, subsection (E) required evidence that Father himself engaged in a course of endangering conduct, or knowingly placed the children with someone who did. The Fourth Court concluded the record, as to Father, did not make that connection strongly enough to survive legal-sufficiency review.

In practical terms, the court separated the existence of danger from Father’s legally attributable responsibility for that danger. The children’s circumstances may have been troubling, but troubling circumstances alone do not establish a subsection (D) or (E) predicate against every parent in the case. The opinion underscores that “knowledge” and “conduct” are not placeholders; they are essential statutory elements that must be supported by record evidence directed to the specific parent whose rights are at issue.

Holding

The court held there was legally insufficient evidence to support the trial court’s finding under Texas Family Code section 161.001(b)(1)(D) as to Father. The record did not establish that Father knowingly placed the children in, or knowingly allowed them to remain in, endangering conditions or surroundings. The court therefore reversed and rendered that predicate finding.

The court also held there was legally insufficient evidence to support the trial court’s finding under section 161.001(b)(1)(E) as to Father. The evidence did not show that Father engaged in endangering conduct or knowingly placed the children with a person who engaged in endangering conduct. The court likewise reversed and rendered that finding.

At the same time, the court affirmed the termination order in all other respects. That means the defective (D) and (E) findings were removed, but the broader termination judgment remained intact based on other unchallenged or sustained grounds.

Practical Application

For trial lawyers, P.H.S. is a record-building case. If you represent the Department or another party seeking a (D) or (E) finding, you cannot rely on a global narrative of family dysfunction and assume the court will infer each parent’s knowledge or participation. You need evidence fixing the dangerous conditions to the particular parent: who knew what, when, how often, and what that parent did or failed to do in response. In multi-parent cases, especially where one parent is primary and the other is noncustodial, incarcerated, absent, or only intermittently involved, the evidentiary bridge matters.

For parents’ counsel, P.H.S. offers a useful appellate and trial theme: the statute requires individualized proof, not associative liability. If the Department’s evidence is really about the other parent, another household member, or a home your client did not control, then your attack should focus on the missing elements of knowledge, placement, permission, and conscious course of conduct. This case is also especially important because erroneous (D) and (E) findings carry serious future consequences under section 161.001(b)(1)(M). Even where another predicate ground may support termination, clearing an unsupported (D) or (E) finding remains a high-value appellate objective.

The reasoning also has spillover value in non-termination family litigation. In conservatorship modification or supervised-possession disputes, lawyers often use “endangerment” rhetorically. P.H.S. is a reminder that if you want a severe restriction based on dangerous environment or dangerous associates, you should develop evidence that the targeted parent knew of the risk and had authority or opportunity to prevent the child’s exposure. Without that connection, the fact pattern may show poor circumstances, but not necessarily legal endangerment attributable to that parent.

Checklists

Building a Subsection (D) Record

• Identify the specific conditions or surroundings alleged to be endangering.
• Prove the parent had actual knowledge of those conditions.
• Establish the parent’s ability to remove the child or change the environment.
• Tie the timing of the parent’s knowledge to the timing of the child’s exposure.
• Use documents, safety plans, texts, photographs, and witness testimony to show notice.
• Avoid relying solely on evidence that another parent maintained the dangerous home.
• Distinguish temporary lack of control from knowing allowance.

Building a Subsection (E) Record

• Frame the alleged endangerment as a course of conduct, not an isolated event.
• Show the parent personally engaged in the conduct or knowingly placed the child with someone who did.
• Develop proof of repeated decisions, repeated exposure, or repeated disregard of risk.
• Establish the parent’s awareness of the other person’s dangerous behavior.
• Connect the conduct to jeopardy to the child’s physical or emotional well-being.
• Do not assume household association alone proves knowing placement.

Defending Against (D) and (E) Allegations

• Force the petitioner to identify the precise conduct or conditions attributed to your client.
• Challenge proof of knowledge, especially where your client was not residing in the home.
• Separate your client’s acts from the conduct of the other parent, paramour, or caregiver.
• Emphasize lack of control over the premises or over third-party access to the child.
• Highlight the absence of evidence showing your client knowingly permitted continued exposure.
• Preserve legal-sufficiency complaints with a parent-specific focus.
• On appeal, expressly challenge (D) and (E) even if other grounds exist because of subsection (M) consequences.

Using P.H.S. in SAPCR and Modification Litigation

• When alleging danger, prove the parent knew about the unsafe person, condition, or household pattern.
• Build evidence showing the parent had the ability to intervene but failed to do so.
• Avoid overreaching by asserting endangerment without a clean evidentiary chain.
• Use the case defensively where the opposing party relies on guilt by association.
• Frame requests for restrictions around documented knowledge and preventable exposure.
• Be precise in pleadings, testimony outlines, and proposed findings.

Preserving the Appellate Record

• Request parent-specific findings where multiple parents are involved.
• Object when the evidence blurs one parent’s misconduct into the other’s case.
• Offer proposed findings that track statutory elements separately for subsections (D) and (E).
• Cross-examine on knowledge, timing, control, and placement.
• Make sure the reporter’s record captures whether the parent was present, informed, warned, or able to act.
• On appeal, invoke In re N.G. and its progeny to require review of challenged (D) and (E) findings.

Citation

In the Interest of P.H.S. and E.K.S., Children, No. 04-25-00838-CV, 2026 WL ___ (Tex. App.—San Antonio June 24, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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