Best-Interest Evidence Factually Insufficient | In re W.J.G.G. (2026)

In the Interest of W.J.G.G., a Child, 04-26-00110-CV, July 01, 2026.

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

Synopsis

The Fourth Court of Appeals held that unchallenged predicate grounds under Texas Family Code section 161.001(b)(1) do not save a termination order when the evidence is factually insufficient on best interest under section 161.001(b)(2). In In re W.J.G.G., the court affirmed the unchallenged predicate grounds, reversed the best-interest finding, and remanded for a new trial because the record did not permit a firm belief or conviction that termination was in the child’s best interest.

Relevance to Family Law

Although this is a parental-termination case, its practical significance reaches far beyond CPS litigation. For Texas family-law litigators handling conservatorship disputes, SAPCR modifications, geographic restrictions, supervised possession, and even divorce cases with serious parental-conduct allegations, W.J.G.G. reinforces a familiar but often underdeveloped appellate point: proof of parental misconduct, criminal history, incarceration, or drug use does not itself answer the separate best-interest question. The case is a reminder that trial counsel must build an affirmative, child-centered evidentiary record on present and future needs, stability, placement quality, parental abilities, and the comparative consequences of the requested relief. In any high-stakes parent-child litigation, a thin best-interest record creates avoidable appellate risk.

Case Summary

Fact Summary

The case concerned termination of Father’s parental rights to a child who was less than one year old at the time of trial. Father had previously served federal time for conspiracy to transport persons who had entered the country illegally. After release, and while on parole, he tested positive once for methamphetamine in May 2024. That positive test occurred before the child was conceived. Father was later incarcerated on the parole violation before the child was born.

At birth, Mother requested that the child be placed with her aunt, who also cared for Mother’s other children, and the child was placed there. After trial, the court terminated Father’s parental rights under Family Code section 161.001(b)(1)(E), (N), and (P), and also found termination was in the child’s best interest under section 161.001(b)(2).

On appeal, Father challenged only subsection (E) and best interest. He did not challenge termination under subsections (N) or (P). The record, as described by the court, showed very little evidence about Father’s conduct beyond his own testimony. He testified that his methamphetamine-related parole violation predated conception; that he expected release in June 2026 followed by supervised release; that while incarcerated he had taken parenting, substance-abuse, cognitive-thinking, and anger-management classes; and that he participated in virtual visits and even a doctor’s appointment with the child when the Department allowed.

The appellate court emphasized the limited evidentiary record bearing on endangerment and, more importantly, on best interest. That evidentiary gap drove the partial reversal.

Issues Decided

• Whether clear and convincing evidence was legally sufficient to support termination under Texas Family Code section 161.001(b)(1)(E).
• Whether the unchallenged predicate grounds under section 161.001(b)(1)(N) and (P) remained sufficient to support that part of the judgment.
• Whether clear and convincing evidence was factually sufficient to support the finding that termination was in the child’s best interest under Texas Family Code section 161.001(b)(2).
• Whether a termination order may stand when at least one predicate ground remains intact but the best-interest finding fails factual-sufficiency review.
• What appellate disposition is proper when predicate grounds survive but the best-interest finding does not.

Rules Applied

The court applied the core termination framework under Texas Family Code section 161.001(b): termination requires proof by clear and convincing evidence of both:

• at least one predicate ground under section 161.001(b)(1); and
• that termination is in the child’s best interest under section 161.001(b)(2).

The court relied on the clear-and-convincing standard in Texas Family Code section 101.007, requiring evidence that produces a firm belief or conviction in the factfinder.

For standards of review, the court applied:

• In re J.F.C., 96 S.W.3d 256 (Tex. 2002), for legal- and factual-sufficiency review in termination cases;
• In re C.H., 89 S.W.3d 17 (Tex. 2002), regarding the constitutional dimension of termination and the need to balance parental rights against the child’s interests;
• In re A.V., 113 S.W.3d 355 (Tex. 2003), for the proposition that one predicate ground is enough to satisfy section 161.001(b)(1);
• In re N.G., 577 S.W.3d 230 (Tex. 2019), and In re R.R.A., 687 S.W.3d 269 (Tex. 2024), requiring appellate review of subsection (E) findings because of their collateral consequences in future cases.

On subsection (E), the court applied the settled rule that endangerment requires a conscious course of conduct and that drug use alone is not automatic proof of endangerment absent evidence connecting the conduct to a substantial risk of harm to the child. The opinion specifically referenced recent Supreme Court guidance that illegal drug use, standing alone, is insufficient without additional evidence showing risk to the parent’s ability to parent the child.

Application

The court first addressed subsection (E) because of its future collateral consequences, even though Father had not challenged subsections (N) and (P). On that issue, the court focused on the narrow evidentiary record: one positive methamphetamine test, occurring before conception, with no evidence of use before or after that date, no evidence of use around the child, no missed tests, no evidence Father exposed the child to users, and no evidence that Father’s conduct created a demonstrated present danger to this child. The court treated that record as insufficient to establish the kind of endangering course of conduct subsection (E) requires.

That did not end the appeal, however, because Father had not challenged the trial court’s findings under subsections (N) and (P). Under ordinary appellate rules, those unchallenged grounds remained intact and would satisfy the predicate-ground component of section 161.001(b)(1).

The decisive issue became best interest. The court reiterated that termination cannot rest on predicate grounds alone. Section 161.001 requires both components, and the best-interest finding must also satisfy the clear-and-convincing standard. Reviewing the entire record for factual sufficiency, the court concluded the evidence contrary to termination was too significant to permit a reasonable factfinder to form a firm belief or conviction that termination was in the child’s best interest.

The opinion’s reasoning reflects a common appellate weakness in expedited child-protection trials: the record may establish adverse history, but not the comparative best-interest case for severing the parent-child relationship. Here, Father offered evidence of participation in services while incarcerated, efforts to maintain contact with the child, and an impending release date. At the same time, the record described in the opinion did not appear to contain robust evidence tying termination—as opposed to some less drastic arrangement—to the child’s present and future welfare. That gap made the best-interest finding factually insufficient.

Holding

The court held that the evidence was legally insufficient to support termination under Texas Family Code section 161.001(b)(1)(E). Because subsection (E) carries potential collateral consequences in future parental-rights litigation, the court addressed it and rejected that ground on the merits.

The court further held that the unchallenged findings under section 161.001(b)(1)(N) and (P) remained valid. Accordingly, the predicate-ground requirement of section 161.001(b)(1) was still satisfied despite the failure of subsection (E).

Most importantly, the court held that the evidence was factually insufficient to support the best-interest finding under section 161.001(b)(2). Because termination requires both a predicate ground and a factually sufficient best-interest finding, the termination order could not stand.

As to disposition, the court affirmed the judgment insofar as it rested on the unchallenged predicate grounds, reversed the best-interest finding, and remanded for a new trial on best interest. That procedural posture is the key appellate takeaway: surviving predicate grounds do not permit affirmance of termination when the best-interest finding fails factual-sufficiency review.

Practical Application

For trial lawyers representing the Department, a petitioner, or an intervenor seeking termination, W.J.G.G. is a warning against assuming that incarceration, criminal history, failed drug testing, or even predicate-ground findings will carry best interest by inertia. They will not. The best-interest case must be developed independently and affirmatively, particularly where the child is very young and the record does not show direct harm, failed visits, inability to parent upon release, or why a less drastic conservatorship structure would not protect the child.

For defense counsel, the case is a strong blueprint for bifurcated appellate and trial strategy. Even where some predicate grounds are difficult or impossible to overturn, best interest remains a separate and often more vulnerable target. Counsel should force the Department to prove the comparative necessity of termination, not merely parental imperfection. Evidence of service participation, efforts to maintain contact, release timelines, family placement options, and the absence of direct child-specific risk can materially strengthen a factual-sufficiency challenge.

For private family-law litigators outside the CPS context, the opinion is also useful by analogy. In modification or conservatorship litigation, judges routinely hear evidence of bad acts and may be tempted to move quickly from misconduct to outcome. W.J.G.G. underscores the importance of linking the evidence to the child-specific relief sought. If the requested relief is supervised possession, sole managing conservatorship, geographic restriction, or denial of access, the record should explain why that precise remedy serves the child’s interests better than a narrower alternative.

Practitioners should also note the appellate preservation dimension. A parent may need to challenge subsection (E) even if other predicate grounds independently support termination, because an (E) finding can affect future litigation involving other children. At the same time, W.J.G.G. confirms that best interest remains independently indispensable; if it fails, termination fails.

Checklists

Building a Best-Interest Record for Termination

• Present child-specific evidence, not just parent-specific misconduct.
• Develop testimony on the child’s present emotional and physical needs.
• Establish the child’s future needs and how termination serves them.
• Compare termination against realistic less-restrictive alternatives.
• Offer evidence about placement stability, permanency, and caregiver capacity.
• Tie parental conduct to concrete risk to the child, not abstract disapproval.
• Address the parent’s current circumstances, not only historical misconduct.
• Rebut evidence of service participation, rehabilitation, or maintained contact.
• Create a record showing why post-release reunification or monitored return is not viable.
• Make sure the evidence can support a firm belief or conviction under the clear-and-convincing standard.

Attacking a Thin Best-Interest Case

• Separate predicate grounds from best interest in argument and briefing.
• Highlight the absence of evidence connecting past misconduct to present child-specific danger.
• Emphasize the parent’s recent compliance, classes, treatment, or rehabilitation.
• Show efforts to visit, communicate, or participate in medical or developmental decisions.
• Develop evidence of release dates, housing plans, employment prospects, and support systems.
• Underscore stable relative placement if it reduces any urgency for termination.
• Argue that conservatorship or restricted access can protect the child short of termination.
• Frame the appellate issue as factual insufficiency under J.F.C., not mere disagreement with the factfinder.
• Point out where the Department relied on inference stacking rather than evidence.
• Preserve and brief subsection (E) separately because of its collateral consequences.

Litigating Subsection (E) Endangerment

• Identify whether the alleged conduct reflects a true course of conduct or only isolated events.
• Determine whether drug use occurred during the child’s life or only before conception.
• Examine whether there is evidence of use around the child, missed tests, relapses, or impaired parenting.
• Test whether the Department proved a nexus between the conduct and substantial risk to the child.
• Challenge reliance on incarceration alone without additional endangering facts.
• Build evidence showing absence of exposure, absence of impairment, and affirmative parenting efforts.
• Preserve objections to conclusory testimony that labels conduct “endangering” without factual support.
• On appeal, invoke N.G. and R.R.A. to require review of subsection (E) findings.

Preparing for Appeal in Termination Cases

• Review every predicate ground and decide which must be challenged.
• Always evaluate best interest as an independent appellate issue.
• Order and analyze the entire reporter’s record for factual-sufficiency points.
• Isolate undisputed favorable evidence the reviewing court cannot ignore.
• Frame the insufficiency argument around the absence of a firm belief or conviction.
• Request the correct appellate remedy: reversal and remand for a new trial on best interest when appropriate.
• Anticipate the court’s distinction between affirming surviving predicate grounds and reversing termination.
• Explain the prospective consequences of an (E) finding for future children and future litigation.

Citation

In the Interest of W.J.G.G., a Child, No. 04-26-00110-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—San Antonio July 1, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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