Unchallenged Section 161.001(b)(1)(N),(P) Grounds Sustain Termination | In re A.G.J. (2026)

In the Interest of A.G.J., a Child, 04-26-00319-CV, September 16, 2026.

On appeal from 166th Judicial District Court, Bexar County, Texas

Synopsis

When a parent challenges only subsection (E) endangerment and best interest, but leaves subsection (N) constructive abandonment and subsection (P) criminal-conduct findings unchallenged, the unchallenged grounds independently sustain affirmance of the termination order. In re A.G.J. confirms that In re N.G. requires appellate review of a challenged (E) finding because of its collateral consequences, but that review does not displace the ordinary rule that unchallenged predicate grounds are accepted as true on appeal.

Relevance to Family Law

For Texas family-law litigators, this opinion is a sharp reminder that issue selection on appeal can be outcome-determinative. In termination cases arising out of SAPCR, divorce-related custody disputes, or post-divorce conservatorship litigation involving Department intervention, the failure to attack every predicate ground found by the trial court can render the merits battle largely academic. Even where a parent obtains meaningful review of a subsection (E) finding under In re N.G., unchallenged grounds may still make reversal impossible. Strategically, that affects preservation, charge review, post-judgment motion practice, and appellate briefing in any case where parental-rights findings may later influence conservatorship, access, or future termination exposure.

Case Summary

Fact Summary

The Department filed its termination petition in August 2024 after referrals alleging neglectful supervision and physical neglect. The record reflected that Father and the child, A.G.J., had been found sleeping at a bus stop, and the child presented with bug bites, heat rash, diaper rash, and sores requiring immediate medical treatment. The Department also suspected Father was using drugs based on his presentation at the hospital.

A family service plan was put in place after the Department became temporary managing conservator. Father was required to obtain stability and complete core services, including psychological or psychiatric evaluation, counseling, parenting classes, and substance-abuse-related assessments. He completed none of those services before he was detained in February 2025 for transporting undocumented persons. At trial in April 2026, Father was serving an 18-month sentence, the child was in foster care, and Father had no concrete post-release housing or employment plan beyond possible supervised release and placement in a halfway house.

The trial court terminated Father’s rights on three predicate grounds: subsection (E) endangerment by conduct, subsection (N) constructive abandonment, and subsection (P), identified in the opinion as criminal-conduct-based termination resulting in confinement and inability to care for the child for the statutory period. On appeal, Father challenged only subsection (E) and best interest.

Issues Decided

• Whether unchallenged findings under Texas Family Code section 161.001(b)(1)(N) and (P) must be accepted as true and independently support affirmance.
• Whether the court was still required to review Father’s challenge to the subsection (E) endangerment finding under In re N.G.
• Whether the evidence was legally and factually sufficient to support termination under subsection (E).
• Whether the termination order should be affirmed where best interest was challenged, but at least two predicate grounds were left unchallenged.

Rules Applied

The court relied on several familiar but critically important termination principles:

• Under Texas Family Code section 161.001(b), termination requires clear and convincing evidence of at least one predicate ground and that termination is in the child’s best interest.
• Under In re A.V., 113 S.W.3d 355, 361–62 (Tex. 2003), when multiple predicate grounds support termination and the appellant does not challenge all of them, the unchallenged grounds are binding on appeal and can independently support affirmance.
• Under In re N.G., 577 S.W.3d 230, 234, 237 (Tex. 2019), appellate courts must review challenged findings under subsections (D) or (E) because of the collateral consequences those findings may have in future proceedings.
• Legal- and factual-sufficiency review follows In re J.F.C., 96 S.W.3d 256, 266–67 (Tex. 2002).
• Subsection (E) endangerment requires a voluntary, deliberate, and conscious course of conduct that endangers the child’s physical or emotional well-being; endangerment means exposure to loss or injury or jeopardy to the child.
• The court also cited authority recognizing that persistent instability, inability to provide financially, failure to obtain housing, incarceration, and failure to provide needed medical care may all be relevant to subsection (E).

Application

The Fourth Court began with the appellate posture, not the evidentiary merits. That sequence matters. Because Father left the subsection (N) and (P) findings untouched, the court treated those grounds as established under In re A.V. and In re S.J.R.-Z. In practical terms, Father entered the appeal already facing two independent, fully operative bases for affirmance.

The court nevertheless turned to subsection (E) because Father challenged it and because In re N.G. requires review of a challenged endangerment finding. The court then examined Father’s course of conduct: homelessness, refusal to use shelter resources offered by the Department, stated intention to return with the child to the streets rather than accept shelter, failure to complete any service-plan requirements, incarceration during the case, lack of a meaningful post-release plan, and the child’s untreated condition when discovered. The court treated these facts not as isolated misfortunes, but as part of a broader pattern of instability and danger to the child’s well-being.

On the medical-neglect component, the court emphasized that A.G.J. required immediate treatment and that failure to provide appropriate medical care can qualify as endangering conduct even if the parent did not directly cause the underlying condition. On the instability component, the court distinguished mere homelessness from an actionable pattern of instability, concluding the evidence showed more than temporary hardship. Taken in the light favorable to the judgment, and then under full factual-sufficiency review, the record permitted a firm belief or conviction that Father engaged in endangering conduct under subsection (E).

Although the opinion excerpt does not set out the full best-interest analysis, the court affirmed the order after overruling Father’s issues. Given the procedural posture, the unchallenged predicate grounds substantially narrowed Father’s path to relief.

Holding

The court held that Father’s failure to challenge the subsection (N) and (P) findings required the appellate court to accept those predicate grounds as true. Because those unchallenged grounds independently supported termination under section 161.001(b)(1), they were sufficient to sustain affirmance of the termination order.

The court also held that In re N.G. still required review of the challenged subsection (E) finding because of the serious collateral consequences attached to endangerment findings. But that required review did not alter the independent effect of the unchallenged predicate grounds.

Finally, the court held that the evidence was legally and factually sufficient to support subsection (E) endangerment. The evidence of instability, homelessness, refusal of shelter, failure to complete services, incarceration, absence of a concrete reunification plan, and failure to provide timely medical care supported the trial court’s finding by clear and convincing evidence. The termination order was affirmed.

Practical Application

For appellate counsel, the first lesson is simple and unforgiving: challenge every predicate ground that can sustain termination unless there is an intentional reason not to do so. If the order includes (N), (O), (P), or any other independent statutory basis, omitting those issues may make reversal unattainable even if the appellant presents a serious attack on (D) or (E). A.G.J. is therefore less about novelty than about disciplined appellate framing.

For trial lawyers, the case reinforces the value of building redundancy into the termination case. If the Department or amicus secures multiple supported predicate findings, the appellee gains substantial insulation on appeal. Conversely, parent-side trial counsel should treat each predicate ground as a separate appellate threat and preserve objections, evidentiary responses, and contrary proof accordingly.

The case also has downstream relevance outside pure CPS practice. Findings under subsection (E) can affect later litigation involving newborn removals, modification suits, and future termination proceedings. That is why N.G. review matters. But A.G.J. shows that obtaining review of an (E) finding is not the same as obtaining a meaningful chance at reversal. Counsel must separately confront the independent affirmance problem created by any unchallenged grounds.

In cases involving incarceration, instability, and housing insecurity, A.G.J. also offers a practical evidentiary lesson. Courts continue to distinguish poverty alone from a sustained course of conduct that endangers a child. The record here mattered because it included not just homelessness, but the child’s physical condition, refusal of offered shelter, noncompletion of services, incarceration, and the absence of a concrete plan for safe care. Practitioners on both sides should develop that distinction carefully rather than litigating “homelessness” at a level of abstraction.

Checklists

Appellate Issue-Selection Checklist

• Obtain and study the signed termination order, not just the oral pronouncement.
• Identify every predicate ground found under Texas Family Code section 161.001(b)(1).
• Challenge each independently sufficient predicate ground unless there is a deliberate strategic reason not to.
• Include a best-interest challenge if there is any viable sufficiency issue.
• If subsection (D) or (E) was found, brief it expressly in light of In re N.G.
• Confirm that the notice of appeal, statement of points if applicable, and briefing preserve all intended complaints.
• Verify whether the order mislabels a statutory subsection and decide whether to raise that discrepancy.

Trial-Counsel Preservation Checklist for Parents

• Request clarity as to each statutory ground the court is considering.
• Object to conclusory or unsupported predicate-ground theories.
• Develop evidence distinguishing poverty or temporary instability from endangering conduct.
• Create a record of housing efforts, employment efforts, service participation, and caregiver alternatives.
• Document reasons for any service-plan noncompliance, including detention, transportation barriers, language barriers, or mental-health limitations.
• Offer specific post-release plans in incarceration cases, including dates, housing, employment, supervision terms, and family support.
• Preserve sufficiency complaints through appropriate post-judgment practice where useful.

Appellee/Department Record-Building Checklist

• Plead and prove multiple predicate grounds where supported by the facts.
• Tie instability evidence to actual jeopardy to the child rather than relying on labels alone.
• Document offered services, referrals, and the parent’s response to each.
• Establish the child’s condition at removal with photographs, medical records, and witness testimony.
• Show the parent’s inability to provide a safe plan both at removal and by time of trial.
• In incarceration cases, prove duration, expected release, and practical inability to care for the child during the statutory period.
• Make the best-interest record independently robust even where predicate grounds are strong.

Briefing Checklist for Subsection (E) Cases

• Address the J.F.C. legal- and factual-sufficiency standards separately.
• Analyze course-of-conduct evidence rather than isolated incidents.
• Confront adverse facts directly, especially medical neglect, drug-use indicators, refusals of assistance, and incarceration.
• Explain why N.G. requires review of (E), but do not assume that wins reversal if other grounds remain.
• If other grounds were found, brief them individually and avoid waiver by omission.
• Discuss collateral consequences of (E) findings in future family-law litigation.

Avoiding the Non-Prevailing Party’s Appellate Problem

• Do not assume that attacking the “most serious” predicate ground is enough.
• Do not treat N.G. as a substitute for challenging all independent grounds.
• Do not overlook constructive abandonment or criminal-conduct findings simply because the factual focus at trial centered on endangerment.
• Do not rely on general best-interest arguments to cure waiver on predicate grounds.
• Do not leave statutory-ground discrepancies in the order unexamined.

Citation

In re A.G.J., a Child, No. 04-26-00319-CV, 2026 WL ___ (Tex. App.—San Antonio Sept. 16, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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