Section 161.001(b)(1)(D) Insufficient Evidence | In the Interest of J.M. (2026)

In the Interest of J.M., a Child, 06-26-00032-CV, July 10, 2026.

On appeal from 102nd District Court, Bowie County, Texas

Synopsis

The Texarkana Court of Appeals held the evidence was legally insufficient to support termination under Texas Family Code Section 161.001(b)(1)(D) where the mother was incarcerated when the child was born and there was no evidence she created, controlled, or knowingly allowed the child to remain in endangering surroundings. The court modified the judgment to delete the Subsection (D) finding, but affirmed termination on other predicate grounds, consistent with In re N.G.

Relevance to Family Law

Although this is a termination case, its importance reaches beyond CPS practice. For Texas family-law litigators handling SAPCRs, modification suits, and conservatorship disputes arising in divorce or post-divorce litigation, the case reinforces a recurring principle: environmental-endangerment theories require proof tied to a parent’s actual knowledge and control over the child’s surroundings, not merely proof of instability, incarceration, or poor life circumstances. The opinion is especially useful when opposing attempts to convert generalized parental dysfunction into a legally sufficient showing of endangering “conditions or surroundings,” and it also highlights the continuing appellate significance of Subsections (D) and (E) because of their future collateral consequences under Section 161.001(b)(1)(M).

Case Summary

Fact Summary

J.M. was born while Mother was incarcerated. Father was also incarcerated, and there was no available family placement for the newborn, prompting Department involvement and removal. The Department investigator testified the case began as an allegation of neglectful supervision and also noted familiarity with Mother from an Arkansas case in which Mother’s rights to four older children had previously been terminated.

After removal, the case was transferred to 4Kids4Families. The assigned caseworker testified that Mother received a court-ordered family service plan but did not complete the required services, including a psychological assessment, housing, mental-health treatment, and regular drug testing. The caseworker also described concerns about drug use, homelessness, unstable employment, and an inability to maintain contact with Mother, including Mother’s refusal to accept visits while incarcerated. CASA likewise testified that Mother did not maintain communication and that J.M. was thriving in a bonded placement.

The trial court terminated under Subsections (D), (E), (I), and (N), and found termination was in J.M.’s best interest. On appeal, Mother challenged only the (D) and (E) findings.

Issues Decided

• Whether clear and convincing evidence supported termination under Texas Family Code Section 161.001(b)(1)(D) for knowingly placing or allowing J.M. to remain in endangering conditions or surroundings.
• Whether a parent’s incarceration at the child’s birth, without evidence the parent created or controlled the child’s environment, can support a Subsection (D) finding.
• Whether the appellate court was required to review the challenged Subsection (D) and (E) findings even though other predicate grounds were unchallenged.
• Whether the judgment should be affirmed, modified, or reversed when Subsection (D) fails but other predicate grounds and best interest remain supported.

Rules Applied

The court applied the familiar termination framework under Texas Family Code Section 161.001(b): the Department must prove by clear and convincing evidence both a predicate ground under Section 161.001(b)(1) and best interest under Section 161.001(b)(2). The opinion reiterates the heightened review required in termination cases because parental rights are of constitutional dimension, citing authorities including Troxel v. Granville, In re E.N.C., In re A.C., and In re C.H.

As to appellate review, the court recognized that one predicate ground is ordinarily enough to affirm termination, and Mother’s failure to challenge findings under Subsections (I) and (N) waived complaints as to those grounds. But the court also followed In re N.G., 577 S.W.3d 230 (Tex. 2019), which requires appellate review of challenged findings under Subsections (D) and (E), even if other grounds independently support termination, because those findings can later be used as a basis for termination under Section 161.001(b)(1)(M).

On the merits of Subsection (D), the governing rule is that the Department must prove the parent knowingly placed or knowingly allowed the child to remain in endangering conditions or surroundings. That theory focuses on the child’s environment rather than parental conduct in the abstract. Mere incarceration, without proof that the parent created, selected, maintained, or knowingly permitted the endangering environment, does not satisfy Subsection (D).

Application

The court’s analysis on Subsection (D) turned on the narrow but critical distinction between a parent’s problematic circumstances and a parent’s relationship to the child’s physical surroundings. J.M. was born while Mother was incarcerated. That fact explained why Mother was unavailable to take possession of the child, but it did not, standing alone, show that she knowingly placed the newborn into endangering conditions or knowingly allowed him to remain there. The opinion signals that there was no evidence Mother had any actual control over a home, caregiver, or environment into which J.M. was placed before the Department intervened.

That evidentiary gap mattered. Subsection (D) is not a catch-all for parental incapacity, instability, or absence. It targets environmental endangerment, and the record as described in the opinion did not connect Mother to any dangerous surroundings in the way the statute requires. The Department had evidence supporting other termination theories: noncompliance with the service plan, lack of stability, inability to maintain contact, and facts supporting endangering conduct under Subsection (E). But those points did not supply the missing proof that Mother knowingly placed or allowed J.M. to remain in endangering conditions or surroundings at birth.

Because Mother challenged Subsection (D), In re N.G. required the appellate court to address it notwithstanding the existence of unchallenged grounds under Subsections (I) and (N). The court therefore modified the judgment to delete the (D) finding while affirming termination on the remaining supported bases and on best interest.

Holding

The court held the evidence was legally insufficient to support termination under Texas Family Code Section 161.001(b)(1)(D). A mother’s incarceration at the child’s birth, without evidence that she created, controlled, selected, or knowingly permitted the child’s endangering environment, does not amount to clear and convincing proof that she knowingly placed or allowed the child to remain in endangering conditions or surroundings.

The court also held that termination could nevertheless be affirmed because Mother did not challenge the findings under Subsections (I) and (N), and the court found legally sufficient support for termination under Subsection (E) as well as for the best-interest finding. In line with In re N.G., the proper appellate disposition was not reversal of the termination itself, but modification of the judgment to delete the unsupported Subsection (D) finding and affirmance as modified.

Practical Application

For practitioners representing the Department or a petitioner seeking extraordinary relief, this case is a reminder to separate environmental-endangerment proof from conduct-endangerment proof. If the theory is Subsection (D), build a record showing who chose the residence, who permitted the child to remain there, what made those surroundings dangerous, and how the parent knew of and had the ability to affect those circumstances. Where the child is removed at birth and the parent is incarcerated, hospitalized, absent, or otherwise not exercising immediate custodial control, a conclusory reliance on the parent’s status will not carry Subsection (D).

For defense counsel, J.M. offers a strong appellate point whenever the petitioner blurs the lines between Subsections (D) and (E). In trial, force the record to identify the actual “conditions or surroundings,” the timing of exposure, and the client’s knowledge and control. In appellate briefing, do not leave a (D) or (E) finding unchallenged merely because another predicate ground may support affirmance; under In re N.G., those findings carry serious future consequences and must be directly attacked.

The opinion also has broader strategic value in private conservatorship litigation. Although the burdens differ outside termination, litigants often try to bootstrap incarceration, addiction history, homelessness, or instability into an environmental-danger narrative untethered to the child’s actual living situation. J.M. is useful authority for insisting on proof that connects the complained-of circumstance to the child’s surroundings and to the parent’s knowing role in creating or allowing them.

Checklists

Preserving an Appellate Attack on Subsections (D) and (E)

• Challenge Subsection (D) and Subsection (E) expressly in the notice of appeal and briefing.
• Cite In re N.G., 577 S.W.3d 230 (Tex. 2019), to explain why review is required even if other predicate grounds exist.
• Request modification of the judgment to delete unsupported (D) or (E) findings if affirmance on other grounds appears likely.
• Address both legal sufficiency and, where appropriate, factual sufficiency.
• Explain the future Section 161.001(b)(1)(M) consequences of an unreviewed (D) or (E) finding.

Building a Defensible Subsection (D) Record

• Identify the precise conditions or surroundings alleged to be endangering.
• Prove the parent knew about those conditions.
• Prove the parent placed the child there or knowingly allowed the child to remain there.
• Establish the parent had actual ability, authority, or practical control over the environment.
• Tie the endangering surroundings to specific evidence rather than general instability.
• Avoid relying solely on incarceration, homelessness, or absence without showing environmental control.

Defending Against a Weak Subsection (D) Theory

• Separate environmental endangerment from conduct endangerment.
• Emphasize lack of proof that the parent selected, maintained, or controlled the child’s placement.
• Object to conclusory testimony that merely labels circumstances as “dangerous.”
• Develop testimony on timing: where was the child, with whom, and who made those decisions.
• Highlight when Department removal occurred immediately at birth or before the parent exercised any control over the environment.
• Argue that parental status alone does not satisfy the statutory elements.

Trial Strategy in Birth-Removal Cases

• Determine whether the child ever resided in a setting the parent actually controlled.
• Lock down who made placement decisions before removal.
• Explore whether the parent had any opportunity to allow or disallow the child’s surroundings.
• Distinguish prenatal concerns, incarceration, and service-plan noncompliance from the statutory elements of Subsection (D).
• Preserve directed-verdict or sufficiency complaints where the environmental link is missing.
• Request findings that specify which facts support each predicate ground.

Using J.M. in Broader Family-Law Litigation

• In custody disputes, require the opposing party to connect alleged danger to the child’s actual living environment.
• Resist attempts to equate parental instability with environmental endangerment absent evidence of the child’s exposure.
• Use the opinion to frame arguments about knowledge, control, and causation in restrictions or supervised-access disputes.
• Distinguish abstract moral criticism from evidence-based proof of risk to the child.
• When representing the movant, make sure your proof is child-centered and environment-specific.

Citation

In the Interest of J.M., a Child, No. 06-26-00032-CV, 2026 WL ___ (Tex. App.—Texarkana July 10, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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