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Unchallenged § 161.001(b)(1)(N) and (O) Findings Support Termination | In re A.C.L.B. (2026)

Thomas Daley
New Texas Court of Appeals Opinion - Analyzed for Family Law Attorneys

In the Interest of A.C.L.B., a Child, 04-26-00150-CV, August 05, 2026.

On appeal from 438th Judicial District Court, Bexar County, Texas

Synopsis

A parent cannot obtain reversal of a termination decree by attacking only subsections (D), (E), and best interest when the decree also includes unchallenged predicate findings under Texas Family Code § 161.001(b)(1)(N) and (O), and the best-interest finding stands. The Fourth Court nevertheless reviewed the challenged endangerment findings under In re N.G. because of their collateral consequences, but affirmed because the evidence supported those findings and, in any event, the unchallenged (N) and (O) grounds independently sustained termination.

Relevance to Family Law

For Texas family-law litigators, this opinion is a sharp reminder that appellate issue selection in termination cases is outcome-determinative. In suits affecting the parent-child relationship, especially DFPS cases arising alongside divorce, SAPCR, protective-order, or family-violence litigation, unchallenged predicate grounds can render a targeted sufficiency attack practically useless. The case also matters beyond pure termination practice because findings involving domestic violence, substance abuse, noncompliance with court-ordered services, and constructive abandonment often develop in parallel with custody modification, conservatorship restriction, and protective-order proceedings. Strategically, the opinion underscores that trial and appellate counsel must treat each predicate ground as independently lethal and must preserve and brief every ground necessary to secure meaningful reversal.

Case Summary

Fact Summary

The Department removed infant A.C.L.B. after law enforcement responded to a domestic disturbance between the parents while Mother was holding the child. Father was arrested, and testing later confirmed that both parents and the child were positive for methamphetamines. The Department initially attempted to manage the case through Family-Based Safety Services, but the safety concerns escalated rather than improved. Additional reports reflected Mother’s instability, suicidal statements, and apparent intoxication while caring for the child. The child was eventually removed on an emergency basis.

After removal, the child was placed first in foster care and then with a maternal cousin, where he reportedly adjusted well, received medical and developmental services, and bonded with the caregiver. The cousin became the Department’s preferred adoptive placement after completing the licensing process.

Father participated in the service-plan process, and the Department initially pursued reunification. But the evidence at trial showed substantial ongoing instability. Father was on bond for three felonies, including child endangerment, family-violence assault against Mother, and methamphetamine possession. His bond conditions prohibited contact with both Mother and the child, yet the Department presented evidence that Father continued seeing Mother despite the no-contact order. The evidence further showed Father had a history of methamphetamine, cocaine, and marijuana use; although he completed treatment, he continued to test positive for methamphetamines and other substances, missed multiple drug tests and therapy sessions, and lacked stable employment and housing.

The trial court terminated Father’s parental rights under § 161.001(b)(1)(D), (E), (N), and (O), and Father appealed only the (D), (E), and best-interest findings, leaving the (N) and (O) findings unchallenged.

Issues Decided

Rules Applied

The court applied the familiar termination framework requiring clear and convincing evidence of at least one predicate ground under Texas Family Code § 161.001(b)(1) and a separate best-interest finding under § 161.001(b)(2).

Key authorities included:

The court also reiterated the doctrinal distinction between subsections (D) and (E). Subsection (D) concerns the child’s environment, typically before removal, and may be established by a single act or omission creating dangerous surroundings. Subsection (E) focuses on the parent’s course of conduct and requires evidence of endangering behavior over time; it may include conduct occurring outside the child’s presence or after removal.

Application

The Fourth Court treated the case as having two tracks. On the first track, it recognized that Father’s failure to challenge the trial court’s findings under subsections (N) and (O) was independently significant. Under In re A.V., those unchallenged predicate grounds, coupled with a supportable best-interest finding, were enough to affirm the decree regardless of any complaint directed only to (D) or (E). That framing alone substantially narrowed Father’s prospects on appeal.

On the second track, the court still addressed the challenged endangerment grounds because In re N.G. requires review of subsections (D) and (E) when they are attacked on appeal. The reason is not immediate disposition in the present case so much as future consequence: a (D) or (E) finding can later be used under subsection (M) to support termination as to another child. The court therefore did not bypass those findings simply because other grounds were unchallenged.

On subsection (D), the court found substantial evidence that Father exposed the infant to an endangering environment. The domestic-violence incident occurred while Mother was holding the child, and the infant later tested positive for methamphetamine. Those facts allowed the trial court to infer that Father’s conduct contributed to surroundings that jeopardized the child’s physical and emotional well-being. The court emphasized that actual injury is unnecessary and that endangerment can be shown by exposure to violence, drugs, and criminality in the home environment.

On subsection (E), the court focused on Father’s continuing course of conduct. He remained involved with Mother despite a no-contact order linked to pending felony charges, continued to use or test positive for controlled substances even after treatment, missed testing and therapy, and failed to achieve stability in housing and employment. In the court’s view, that pattern reflected not an isolated lapse, but an ongoing course of endangering conduct marked by noncompliance, instability, and refusal to internalize the risks that brought the child into care.

Given that analysis, the court concluded the evidence was sufficient on the challenged grounds. But critically, even if Father had made headway on one challenged ground, the unchallenged subsections (N) and (O) would still have supported affirmance absent a successful attack on the best-interest finding or those separate predicates.

Holding

The court held that Father’s failure to challenge the trial court’s predicate findings under Texas Family Code § 161.001(b)(1)(N) and (O) was independently fatal to his appeal. Under In re A.V., one unchallenged predicate ground, together with a sufficient best-interest finding, sustains a termination judgment. Because Father left two predicate findings untouched, reversal was unavailable on the theory that only the (D), (E), and best-interest findings were vulnerable.

The court further held that, under In re N.G., it was still required to review Father’s appellate challenges to the subsection (D) and (E) endangerment findings because those findings may carry future collateral consequences under subsection (M). After conducting that review, the court concluded the evidence was legally and factually sufficient to support both endangerment findings.

Finally, the court affirmed the termination decree in full. The combination of supported endangerment findings, unchallenged constructive-abandonment and service-plan findings, and a sustainable best-interest determination left no basis for reversal.

Practical Application

For appellate counsel, this case is a briefing warning in capital letters: do not leave independent predicate grounds unchallenged unless that omission is an intentional concession after hard strategic analysis. In practice, many appellants focus on endangerment grounds because of the subsection (M) consequences recognized in N.G.. That remains necessary, but A.C.L.B. shows it is not sufficient. If the decree also rests on (N), (O), or any other predicate ground, appellate counsel must decide whether to challenge those grounds too; otherwise, even a successful attack on (D) or (E) may not produce a reversal of the termination decree itself.

For trial lawyers, the opinion reinforces the importance of building redundant termination theories. When the evidence supports endangerment, constructive abandonment, and failure to comply with a court-ordered service plan, pleading and proving multiple grounds materially improves the odds of affirmance. This is especially true in cases involving drug exposure, domestic violence, and ongoing service-plan noncompliance.

The opinion also has implications for private family-law litigation. Although this is a DFPS termination appeal, the factual predicates the court found persuasive—domestic violence, methamphetamine exposure, disregard of court orders, instability in housing and employment, and continued association with a dangerous co-parent—are the same facts that shape conservatorship restrictions, supervised access, geographic limitations, and possession modifications in divorce and SAPCR litigation. A lawyer handling a custody case should read this opinion as a roadmap for how appellate courts evaluate instability and risk over time.

Practitioners should also note the interaction between bond conditions, protective orders, and family-court orders. Continued contact in violation of a no-contact order was not merely bad optics; it became substantive evidence of ongoing endangering conduct and poor judgment. In family cases where parallel criminal or protective-order proceedings exist, counsel must account for how those records and violations will be used in both trial and appellate narratives.

Checklists

Preserve Every Predicate-Ground Challenge on Appeal

Build an Affirmance-Proof Trial Record for the Department or Petitioner

Defend Against Endangerment Findings Early

Manage Parallel Criminal, Protective-Order, and Family Proceedings

Strengthen Best-Interest Proof

Avoid the Appellate Trap That Sank the Non-Prevailing Parent

Citation

In the Interest of A.C.L.B., a Child, No. 04-26-00150-CV, memorandum opinion (Tex. App.—San Antonio Aug. 5, 2026, no pet. h.).

Full Opinion

Read the full opinion here

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