Family Code Section 161.001(d) Limits Predicate-Ground Evidence | In re C.K.J.-S. (2026)

In the Interest of C.K.J.-S., a Child, 01-26-00128-CV, July 21, 2026.

On appeal from 313th District Court, Harris County, Texas

Synopsis

Section 161.001(d) limits how the Department may prove endangerment predicates under Family Code section 161.001(b)(1)(D) and (E) after an earlier case resulted in conservatorship—but not termination. The First Court held that pre-conservatorship evidence cannot be used as the basis for later termination under (D) or (E), but that same evidence may still be considered for other pleaded predicate grounds, best interest, and modification issues such as material and substantial change.

Relevance to Family Law

Although this is a termination case, the opinion has immediate significance for Texas family-law litigators handling modification practice, managing-conservatorship disputes, and any case in which an earlier SAPCR order preserved parental rights but shifted conservatorship. The case sharpens the line between evidence available to prove a later termination predicate and evidence available to prove changed circumstances or best interest, a distinction that matters not only in Department litigation but also in private custody modifications where prior conduct, prior findings, and the procedural posture of an earlier order can shape admissibility objections, pleading strategy, and appellate preservation.

Case Summary

Fact Summary

The Department initially filed suit concerning the child in 2023 after reports of Mother’s threats toward the relative caring for her children, her untreated mental-health concerns, her PCP use, and her criminal history. Following a 2024 bench trial, the court did not terminate Mother’s rights. Instead, it appointed the Department sole managing conservator and Mother possessory conservator.

A year later, the Department filed a modification petition seeking termination. At the second trial, the Department offered evidence spanning both periods: pre-2024 evidence from the original case and post-order evidence bearing on relapse, criminal conduct, incarceration, and Mother’s inability to stabilize. The later evidence included positive PCP tests after treatment, a felony DWI tied to PCP intoxication, a theft conviction, incarceration at the time of trial, and continuing concerns about sobriety and parenting stability. The trial court terminated on subsections (D), (E), and (O), found material and substantial change, and found best interest.

On appeal, Mother challenged the trial court’s consideration of pre-2024 evidence, argued the Department had pleaded the wrong version of subsection (O), and attacked the sufficiency of the evidence supporting (D), (E), and best interest.

Issues Decided

• Whether Family Code section 161.001(d) bars reliance on evidence presented before the order appointing the Department conservator without terminating parental rights when the Department later seeks termination under section 161.001(b)(1)(D) or (E).
• Whether the trial court could nevertheless consider that earlier evidence for purposes other than subsections (D) and (E), including best interest and modification-related findings.
• Whether any error related to the trial court’s subsection (D) and (E) findings required reversal when termination was also supported under section 161.001(b)(1)(O).
• Whether the Department’s pleading of former subsection (O) defeated termination under the current subsection (O).

Rules Applied

The court’s analysis centered on several Family Code provisions and prior termination-modification authorities.

• Family Code section 161.001(b)(1) sets out the predicate grounds for termination.
• Family Code section 161.001(d) restricts proof under subsections (D) and (E) when a prior suit resulted in the Department’s appointment as conservator without termination. As framed by the case, the statute prohibits termination under (D) or (E) based on evidence presented before that earlier order.
• Family Code section 161.001(b)(2) still requires proof that termination is in the child’s best interest.
• Family Code section 161.004 governs later termination suits following an earlier order denying termination and allows consideration of prior-hearing evidence when that statute is properly invoked.
• Texas appellate precedent has recognized that when the Department does not proceed under section 161.004, admission and use of earlier evidence can create error if offered as predicate-ground proof in a later termination proceeding.
• At the same time, ordinary appellate principles remain controlling: when one valid predicate ground supports termination and best interest is established, error tied solely to additional predicate grounds may be harmless unless those grounds carry independent collateral consequences requiring review.

The opinion also reflects the familiar rule that subsection (D) and (E) findings often receive special appellate attention because of their consequences in future cases. But here the court concluded that section 161.001(d) itself narrowed the permissible use of earlier evidence for those grounds, while leaving other uses intact.

Application

The First Court treated section 161.001(d) as a targeted evidentiary restriction rather than a global exclusionary rule. In the court’s view, the Legislature did not prohibit all use of pre-conservatorship evidence once a parent survives an earlier termination attempt. Instead, it prohibited one specific use: employing that earlier evidence as the basis for termination under subsections (D) and (E) in a later case after the Department had already been appointed conservator without termination.

That distinction drove the analysis. The court accepted that evidence from the first phase of the case could not support later endangerment findings under (D) or (E). But it did not accept Mother’s broader premise that the earlier evidence became categorically off-limits in the later proceeding. The same historical facts still bore on the child’s circumstances, the parent’s course of conduct, best interest, and whether circumstances had materially and substantially changed since the prior order. In other words, section 161.001(d) limited the evidentiary use, not the evidentiary existence, of the earlier record.

The court then moved to the practical appellate consequence. Even assuming error in the subsection (D) and (E) findings, reversal was not warranted because the termination judgment also rested on subsection (O), and Mother did not obtain relief from that separate predicate. With subsection (O) intact and best interest sufficiently supported, any problem associated with (D) and (E) did not undermine the judgment.

The court also rejected the argument that the Department’s pleading of former subsection (O) barred reliance on the current version. The opinion treated the statutory change as not defeating fair notice under the circumstances, and the termination could stand on subsection (O) as enacted at the time of trial.

Holding

The court held that Family Code section 161.001(d) prohibits termination under section 161.001(b)(1)(D) or (E) when those endangerment grounds depend on evidence presented before the earlier order appointing the Department conservator without termination. To that extent, the statute limits the Department’s ability to recycle pre-conservatorship proof into a later (D) or (E) termination case.

The court further held that section 161.001(d) does not bar consideration of that earlier evidence for other purposes. The trial court could consider the evidence for other pleaded grounds, including subsection (O), and also for best-interest and modification-related determinations such as material and substantial change.

Finally, the court held that any error associated with the subsection (D) and (E) findings did not require reversal because termination was independently supportable under section 161.001(b)(1)(O), and best interest was proven. The judgment terminating Mother’s parental rights was therefore affirmed.

Practical Application

For Department counsel and private practitioners alike, this opinion is really about disciplined issue separation. If there has already been a prior order appointing the Department conservator without termination, do not assume the first record can simply be repurposed across every issue in the second case. If you want to pursue (D) or (E), you need post-order evidence capable of carrying those predicates without resting on the earlier presentation. If your strongest post-order case is instead noncompliance, continued substance abuse, or some other pleaded ground, build the trial presentation accordingly and treat the earlier record as contextual and best-interest evidence, not as the engine for (D) and (E).

For parent-side counsel, the case creates a precise objection framework. The winning objection is not that pre-conservatorship evidence is wholly inadmissible. The better argument is that section 161.001(d) forbids using that evidence to support a later (D) or (E) finding. That means lawyers should request express limitations, targeted rulings, and if necessary findings that distinguish the purpose for which the court is considering the evidence. Broad admissibility objections may miss the narrower statutory point.

The case also matters in modification practice outside termination. Family courts regularly hear evidence that predates the order being modified, not to retry the old case, but to evaluate changed circumstances, patterns of conduct, and present best interest. C.K.J.-S. reinforces that family-law litigators must be careful about the purpose for which prior conduct is offered. The same item of evidence may be unusable for one statutory ground yet still probative for a modification element or best-interest analysis.

Strategically, the case is also a reminder to plead alternative predicate grounds carefully. If one ground is vulnerable to a statutory evidentiary limitation, another ground may preserve the judgment on appeal. That is exactly what happened here. The affirmed judgment turned less on the viability of (D) and (E) than on the existence of a separate, sustainable path to termination under subsection (O), coupled with a best-interest finding.

Checklists

Pleading a Post-Conservatorship Termination Case

• Identify whether there was a prior order appointing the Department as conservator without terminating parental rights.
• Determine whether section 161.001(d) limits your intended proof on subsections (D) and (E).
• Plead all viable alternative predicate grounds supported by post-order facts.
• Evaluate whether section 161.004 should be expressly invoked based on the procedural history and relief sought.
• Ensure the petition gives fair notice of the conduct, time frame, and statutory grounds at issue.
• Track statutory amendments and conform pleadings to the version in effect at trial.

Proving Subsections (D) and (E) After a Prior Non-Termination Order

• Separate pre-order evidence from post-order evidence before trial.
• Build a standalone post-order evidentiary record if pursuing subsection (D) or (E).
• Do not rely on evidence presented before the earlier conservatorship order as the basis for (D) or (E).
• Use timelines, amended exhibit lists, and witness outlines to isolate post-order conduct.
• Ask the court for predicate-ground-specific findings if the record contains mixed-purpose evidence.

Using Earlier Evidence for Other Purposes

• Tie earlier evidence expressly to best interest, pattern evidence, or material-and-substantial-change issues.
• Explain the non-(D)/(E) purpose on the record when offering the exhibit or testimony.
• Request a limiting ruling if the evidence is admitted for some issues but not others.
• In bench trials, clarify in argument how the court may properly use the historical evidence.
• Avoid overclaiming that section 161.001(d) creates total inadmissibility.

Preserving Error for Appeal

• Make a statutory objection keyed specifically to section 161.001(d).
• State that the objection goes to the use of the evidence for subsection (D) or (E), not necessarily all purposes.
• Obtain a ruling.
• If the evidence is admitted, request a limiting instruction or limiting consideration ruling where feasible.
• Challenge any findings that appear to rest on barred time-period evidence.
• On appeal, address all independent predicate grounds supporting the judgment; do not focus only on (D) and (E) if another ground may carry affirmance.

Defending Against a Later Termination Petition

• Compare the first trial record to the second petition and identify recycled proof.
• Force the Department to specify what post-order conduct supports each pleaded predicate.
• Argue that pre-order proof cannot sustain a later (D) or (E) finding under section 161.001(d).
• Contest whether the Department has evidence of a material and substantial change since the prior order.
• Challenge the fit between the pleaded statutory ground and the version submitted to the court.
• Preserve sufficiency challenges separately as to each predicate ground and best interest.

Trial Strategy for Best-Interest and Modification Findings

• Develop a clear chronology showing what changed after the prior order.
• Present evidence on the child’s current placement, needs, progress, and permanency options.
• Use historical evidence to contextualize risk, instability, or caregiving patterns where permitted.
• Distinguish between historical concerns and current conduct to avoid conflating predicate proof with best-interest proof.
• Make sure best-interest evidence does not depend exclusively on the barred use of prior endangerment evidence.

Citation

In the Interest of C.K.J.-S., a Child, No. 01-26-00128-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Houston [1st Dist.] July 21, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

~~fb1ed211-fbf0-4e7e-93cc-e85e5abe3609~~