In the Interest of K.W., M.W., T.R., T.R., and T.R., Children, 10-26-00173-CV, September 24, 2026.
On appeal from 474th District Court of McLennan County, Texas
Synopsis
Repeated illegal drug use can support termination under Texas Family Code § 161.001(b)(1)(E) when additional evidence connects the drug use to a risk to the parent’s ability to parent. A pattern of relapse, missed drug tests, stress-related substance use, disengagement from services, and loss of contact with the children permitted the factfinder to infer continuing endangerment notwithstanding the mother’s completion of inpatient rehabilitation.
Relevance to Family Law
Although In re K.W. is a parental-termination case, its evidentiary analysis has broader significance in divorce and SAPCR litigation involving conservatorship, possession, access, and requests for protective conditions. Drug use alone should not be treated as a categorical substitute for evidence of parenting risk; counsel should develop—or attack—the additional nexus between substance use and impaired judgment, inconsistent visitation, domestic violence, failure to comply with testing, disengagement from services, or inability to meet the child’s emotional and physical needs.
The decision is particularly useful when a parent relies on recent treatment or short-term sobriety. Completion of rehabilitation is favorable evidence, but it does not erase a history of relapse or prevent the factfinder from considering whether the parent has demonstrated sustained recovery under ordinary life stress. In temporary-order and modification proceedings, the same reasoning may support supervised possession, sobriety monitoring, testing protocols, or restrictions tailored to the demonstrated risk.
The case may also affect the strategic presentation of a divorce’s property issues when substance abuse overlaps with claims of waste, reimbursement, or dissipation of community assets. The endangerment finding itself does not determine property division, but the underlying proof—drug purchases, criminal conduct, treatment expenses, employment instability, or misuse of community funds—may be independently relevant to a just-and-right division.
Case Summary
Fact Summary
The Department’s case began after a domestic-violence incident in the home while the children were present. Although Mother was the victim in that incident, she was later arrested during the case for aggravated assault with a deadly weapon after allegedly striking or “bumping” one of the fathers and his girlfriend with a vehicle. The trial court also heard conflicting testimony about whether Mother had previously used physical violence against the father.
Mother’s drug-testing history reflected repeated periods of sobriety followed by relapse. She tested positive for cocaine and marijuana in March 2025. After approximately two months of negative tests, she again tested positive for cocaine. Later tests were positive for amphetamines, methamphetamine, and cocaine, with increasing cocaine levels. Following two negative tests in July, she tested positive for cocaine and oxycodone on July 31. After another period of negative testing, she tested positive in October for amphetamines, methamphetamine, and cocaine.
Mother subsequently completed inpatient rehabilitation and produced some negative tests. She nevertheless failed to submit to drug testing for approximately four months before trial, although she was incarcerated for roughly one month of that period. The Department’s representative testified that Mother had “kind of disappeared.” Mother disengaged from communications and services and could not visit the children because she had not satisfied the testing requirements.
The evidence also tied Mother’s substance use to stress. Mother previously told the Department that she used illegal substances when she felt overwhelmed. At trial, she attributed her recent failure to test in part to being under substantial stress. She also cited transportation difficulties but acknowledged that she did not request available transportation assistance from the Department.
Mother had no contact with the children during the final four months of the case. Two of the older children wanted to live with her, and no permanent or adoptive placement had yet been identified for the three youngest children. Mother emphasized those facts, her completion of inpatient treatment, and her progress on portions of the service plan in challenging the best-interest finding.
Issues Decided
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Whether the evidence was legally and factually sufficient to support termination under Texas Family Code § 161.001(b)(1)(E) based on an endangering course of conduct.
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Whether Mother’s completion of inpatient rehabilitation and subsequent negative tests defeated an inference of continuing endangerment arising from her history of relapse and failure to submit to later testing.
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Whether the evidence was legally and factually sufficient to support the finding that termination was in each child’s best interest under Texas Family Code § 161.001(b)(2).
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Whether the appellate court needed to address the alternative predicate findings under § 161.001(b)(1)(D) and (N) after upholding the Subsection (E) finding.
Rules Applied
Under Texas Family Code § 161.001(b), termination requires clear and convincing evidence of at least one statutory predicate ground and that termination is in the child’s best interest.
Subsection (E) applies when a parent has “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” Endangerment means exposure to loss or injury. The conduct need not be directed at the child, and the child need not suffer an actual injury. Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
The relevant Subsection (E) inquiry is whether the child’s endangerment resulted from the parent’s course of conduct, including acts, omissions, and failures to act. In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied). Domestic violence, lack of self-control, and a propensity for violence may form part of that course of conduct.
Illegal drug use is relevant under Subsection (E) when accompanied by additional evidence that the factfinder reasonably could credit as demonstrating a risk to the parent’s ability to parent. In re R.R.A., 687 S.W.3d 269, 278 (Tex. 2024); In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Thus, the required analysis is not merely whether a parent used drugs, but whether the record connects that use to a danger to the child’s physical or emotional well-being.
A parent’s past endangering conduct may support an inference that the conduct will recur and jeopardize the child in the present or future. In re J.S.S., 594 S.W.3d 493, 505 (Tex. App.—Waco 2019, pet. denied). A factfinder may also infer that a parent who fails to submit to testing is avoiding the test because the parent continues to use illegal substances. In re A.R.D., 694 S.W.3d 829, 840 (Tex. App.—Houston [14th Dist.] 2024, pet. denied).
For best interest, courts apply the nonexclusive factors identified in Holley v. Adams, including the child’s desires, present and future needs, present and future danger, parental abilities, available programs, plans for the child, stability, acts or omissions indicating an improper parent-child relationship, and any excuses for those acts or omissions. 544 S.W.2d 367, 371–72 (Tex. 1976). The Department need not prove every factor. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
When multiple predicate grounds are found, one supported predicate finding ordinarily is sufficient when accompanied by a best-interest finding. But when a parent challenges a finding under Subsection (D) or (E), an appellate court must address that ground because of its potential collateral consequences. In re N.G., 577 S.W.3d 230, 234–37 (Tex. 2019).
Application
The Tenth Court did not treat Mother’s positive drug tests as sufficient in isolation. Instead, it examined the entire course of conduct and the evidence connecting Mother’s substance use to her ability to parent. The repeated progression from negative tests to relapse demonstrated that isolated periods of sobriety had not developed into a stable pattern of recovery. Several positive tests involved multiple substances, and the cocaine levels increased on successive tests.
Mother’s completion of inpatient treatment did not compel a contrary result. The court recognized that rehabilitation and negative tests were favorable evidence, but the trial court remained entitled to evaluate those facts against Mother’s prior relapses and her conduct after discharge. The relevant question was not simply whether Mother had completed treatment, but whether she had demonstrated sustained sobriety and reliable parenting behavior afterward.
Her failure to submit to testing during the months before trial was especially significant. Because Mother had a documented pattern of short-term sobriety followed by renewed drug use, the factfinder reasonably could infer that the missed tests were not benign. That inference was reinforced by Mother’s admission that she used drugs when overwhelmed and her explanation that she had not recently tested because she was under stress. The same condition she identified as a relapse trigger was therefore present when she stopped testing.
The missed testing also had direct parenting consequences. Mother disengaged from the Department, stopped participating in services, and could not visit the children because she had not completed required drug tests. Relying on In re R.R.A., the court treated the convergence of missed tests, service disengagement, and separation from the children as evidence of risk to their emotional well-being—not merely as technical noncompliance with a service plan.
The court also considered the broader course of conduct, including domestic violence in the children’s presence and Mother’s later arrest for alleged assaultive conduct involving a vehicle. The trial court, as factfinder, was entitled to resolve conflicts in the testimony and weigh that evidence together with Mother’s recurring substance use, lack of consistent testing, and failure to maintain contact.
On best interest, the court acknowledged the evidence favorable to Mother, including the older children’s desire to live with her, her completion of inpatient treatment, and the absence of identified permanent placements for the younger children. Those considerations did not require reversal. Mother’s four-month absence from the children, failure to test despite knowing that testing was necessary to resume visitation, incomplete services, relapse history, and failure to use available transportation assistance supported the trial court’s determination that she could not reliably meet the children’s needs.
Holding
The court held that legally and factually sufficient evidence supported the finding that Mother engaged in an endangering course of conduct under Texas Family Code § 161.001(b)(1)(E). Repeated illegal drug use, relapse after temporary periods of sobriety, failure to submit to testing, stress-related drug use, disengagement from services, and resulting loss of contact with the children collectively demonstrated a risk to Mother’s ability to parent.
The court further held that completion of inpatient rehabilitation did not negate the Subsection (E) finding. The trial court reasonably could infer future danger from Mother’s prior conduct, particularly when her post-treatment conduct included missed testing under stressful circumstances consistent with her admitted relapse trigger.
The court also upheld the finding that termination was in the children’s best interest. Mother’s recent treatment progress and the older children’s expressed desires did not overcome the evidence of instability, incomplete services, missed testing, prolonged lack of visitation, and continuing risk.
Because the Subsection (E) finding and the best-interest finding were sufficient to support termination, the court did not reach the alternative predicate grounds under Subsections (D) and (N). The judgment terminating Mother’s parental rights was affirmed.
Practical Application
For Department counsel or an ad litem defending a Subsection (E) finding, In re K.W. illustrates the importance of proving more than positive drug tests. The record should connect substance use to parenting risk through evidence of relapse, impaired judgment, missed visitation, failure to participate in services, domestic violence, criminal conduct, instability, or inability to respond safely to stress.
For a parent’s counsel, the case demonstrates that completion certificates and a small number of negative tests will rarely be enough when the parent’s history shows repeated relapse. Counsel should develop objective evidence of sustained recovery, including consistent random testing, aftercare participation, sponsor or counselor testimony, relapse-prevention planning, stable housing and employment, regular visitation, and a concrete plan for managing stress without substance use.
In custody and modification cases, practitioners should distinguish between proof of drug use and proof of present parenting danger. In re K.W. does not announce that any illegal drug use automatically establishes endangerment. The persuasive force of the evidence came from the additional circumstances showing that substance use and testing noncompliance interfered with Mother’s services, visitation, judgment, and ability to maintain a relationship with the children.
Testing provisions should be drafted and litigated carefully. Orders should identify the testing method, frequency, notice procedure, payment responsibility, approved facilities, transportation arrangements, consequences of a missed test, and conditions for resuming possession. A missed test becomes more probative when the order and the parent’s obligations are clear and the opposing party can exclude confusion, cost, transportation, or lack of notice as plausible explanations.
Counsel should also preserve the significance of missed testing through testimony. Establish that the parent received each request, understood the deadline, had access to the facility, knew the consequences, and failed to request available assistance. Conversely, counsel resisting an adverse inference should document every logistical barrier contemporaneously and request an alternative test rather than simply failing to appear.
Finally, rehabilitation evidence should be framed as the beginning of a recovery narrative, not its conclusion. The strongest post-treatment record will show continued testing, outpatient care, relapse-prevention work, accountability, stable routines, and consistent parenting conduct after the parent returns to ordinary life pressures.
Checklists
Building a Drug-Use Endangerment Record
- Obtain the complete testing history, including negative, positive, missed, diluted, altered, and refused tests.
- Prepare a chronological chart showing periods of sobriety and relapse.
- Identify the substances detected and any changes in reported concentration levels.
- Authenticate laboratory reports and preserve chain-of-custody evidence.
- Connect each positive or missed test to parenting consequences.
- Develop evidence concerning impaired judgment, instability, violence, criminal conduct, or missed visitation.
- Prove that the parent received and understood each testing request.
- Establish whether testing, transportation, or payment assistance was available.
- Obtain admissions concerning relapse triggers, stress, or reasons for substance use.
- Show whether missed testing coincided with disengagement from services or the children.
Presenting Rehabilitation and Recovery Evidence
- Obtain proof of admission, attendance, and successful discharge from treatment.
- Distinguish completion of a program from sustained recovery after discharge.
- Present consistent random drug tests covering a meaningful period.
- Document participation in outpatient treatment, counseling, or peer-support programs.
- Offer testimony from counselors, sponsors, treatment providers, or recovery coaches.
- Prepare a written relapse-prevention and stress-management plan.
- Demonstrate stable housing, employment, transportation, and childcare.
- Show consistent visitation and compliance with all safety conditions.
- Address every missed test with documents and corroborating testimony.
- Explain how the parent will respond if relapse occurs.
Challenging the Nexus to Parenting Risk
- Determine whether the evidence proves current use or relies only on remote conduct.
- Separate isolated drug use from a continuing course of conduct.
- Challenge unsupported assumptions that drug use necessarily impaired parenting.
- Identify negative tests and periods of documented sobriety.
- Examine whether the children were present, affected, or exposed to a specific risk.
- Challenge the reliability, methodology, and chain of custody of disputed tests.
- Develop innocent explanations for missed testing through contemporaneous records.
- Show continued visitation, service participation, and communication despite testing disputes.
- Emphasize successful treatment and post-treatment conduct.
- Propose narrowly tailored safeguards as alternatives to termination or severe possession restrictions.
Preserving the Record for Appeal
- Move for directed findings or judgment when the evidence lacks a nexus to parenting ability.
- Object to unauthenticated reports, hearsay, and conclusory opinions.
- Request findings identifying the predicate grounds and best-interest determination.
- Ensure that favorable test results and treatment records are admitted, not merely discussed.
- Develop testimony explaining missed tests, transportation problems, incarceration, or lack of notice.
- Preserve challenges to both legal and factual sufficiency.
- Challenge Subsection (D) and (E) findings specifically because of their collateral consequences.
- Brief the clear-and-convincing standard and the heightened appellate review applicable in termination cases.
- Address adverse credibility determinations with objective documents whenever possible.
- Do not rely solely on evidence of recent improvement; confront the entire historical course of conduct.
Drafting Testing and Possession Conditions
- Specify the authorized testing facility and testing methodology.
- State the deadline for appearing after notice.
- Define whether a missed, refused, diluted, or adulterated test will be treated as positive.
- Allocate testing costs and provide a procedure for claiming inability to pay.
- Include transportation arrangements or available assistance.
- Define who receives the results and how they must be transmitted.
- Establish conditions for suspension and resumption of possession.
- Provide a procedure for confirmatory testing.
- Include safeguards protecting the confidentiality of medical and testing records.
- Tailor restrictions to the demonstrated risk rather than imposing open-ended conditions.
Citation
In the Interest of K.W., M.W., T.R., T.R., and T.R., Children, No. 10-26-00173-CV (Tex. App.—Waco Sept. 24, 2026, no pet. h.) (mem. op.).
Full Opinion
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