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Recent Sobriety and Completion of Services May Not Overcome Section 161.001(b)(2) Best-Interest Evidence | In re E.J. (2026)

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

In the Interest of E.J., a Child, 11-26-00077-CV, October 08, 2026.

On appeal from 326th District Court, Taylor County, Texas

Synopsis

The Eleventh Court of Appeals held that clear and convincing evidence supported the trial court’s finding that termination was in E.J.’s best interest under Texas Family Code § 161.001(b)(2). The mother’s recent sobriety and substantial completion of services did not overcome her recurring methamphetamine use, inconsistent visitation, unstable housing and employment, and the child’s established bond with a long-term foster family prepared to adopt him.

Relevance to Family Law

In re E.J. is directly relevant to termination and conservatorship litigation because it illustrates the difference between technical compliance with a service plan and proof of sustained parental stability. A parent may complete classes, attend counseling, and produce several months of negative drug tests, yet still face an adverse best-interest finding when the broader history demonstrates relapse, interrupted contact, unstable housing, uncertain employment, and an inability to offer the child permanence.

The opinion also has practical significance in custody disputes arising from divorce or suits affecting the parent-child relationship. Although ordinary conservatorship cases do not apply the termination standard, recurring substance abuse, missed possession periods, unstable living arrangements, exposure to family violence, and prolonged disengagement remain highly relevant to conservatorship, possession, geographic restrictions, supervised visitation, and protective conditions. For property litigation, employment and housing evidence may corroborate or undermine credibility regarding income, expenditures, reimbursement claims, and financial stability, but practitioners should avoid treating poverty alone as parental unfitness. The material inquiry is how instability affects the child and the reliability of the parent’s proposed plan.

Case Summary

Fact Summary

The Department began investigating after E.J.’s umbilical cord blood tested positive for cannabinoids. At the time of removal, the mother admitted using methamphetamine postpartum and tested positive for amphetamine and methamphetamine. E.J. also tested positive for a marihuana metabolite and methamphetamine. Because the mother could not identify an appropriate relative or fictive-kin placement, E.J. entered foster care at approximately two months of age.

The trial court ordered the mother to comply with a family service plan that included random drug testing, counseling, parenting education, visitation, stable employment, and safe, stable, drug-free housing. She completed parenting classes and a psychological evaluation and entered substance-abuse treatment. Her progress, however, was interrupted by missed drug tests, inconsistent counseling, inappropriate housing arrangements, and additional methamphetamine use. She admitted relapsing in November 2024, tested positive for methamphetamine in December 2024 and February 2025, and then returned to treatment.

After further proceedings, the mother moved to San Antonio and temporarily ceased communicating with her case manager. She later entered Rise Discipleship, a Christian-based sober-living program. By the final hearing, she had substantially completed her service plan, was participating in programming and counseling, and had tested negative for approximately three months. Her claimed work through the program provided room and board, but the Department had not verified conventional employment after September 2024. The program could house her for up to two years, although no resident had previously had a child placed with her there.

The Department remained concerned about the mother’s long-term ability to maintain sobriety and stability outside a structured environment. She had attended only approximately 40% of her weekly visits with E.J. and had periods of limited or no communication with the Department. Meanwhile, E.J. had lived with the same foster family for approximately twenty months, had become integrated into that family, was developmentally healthy, and had no need for additional services. The foster family intended to adopt him, and the guardian ad litem supported termination and continued placement in the foster home.

The trial court found predicate grounds for termination under Texas Family Code § 161.001(b)(1)(D) and (E). The mother did not challenge those predicate findings on appeal. She instead challenged the sufficiency of the evidence supporting the best-interest finding and the trial court’s findings concerning the Department’s reunification efforts and the continuing danger preventing E.J.’s return.

Issues Decided

  1. Whether legally and factually sufficient evidence supported a firm belief or conviction that termination of the mother’s parental rights was in E.J.’s best interest under Texas Family Code § 161.001(b)(2).

  2. Whether the evidence supported the trial court’s findings that the Department made reasonable efforts to return E.J. to the mother before the final hearing and that a continuing danger in the home prevented his return under Texas Family Code § 161.001(f) and (g).

Rules Applied

Texas Family Code § 161.001(b) requires clear and convincing evidence of both a statutory predicate ground and that termination is in the child’s best interest. “Clear and convincing evidence” means proof sufficient to produce in the factfinder’s mind a firm belief or conviction regarding the truth of the allegations. Tex. Fam. Code § 101.007.

The mother did not challenge the findings under § 161.001(b)(1)(D) and (E), which addressed endangering conditions and endangering conduct. Consequently, the principal disputed termination element was best interest under § 161.001(b)(2).

The court applied the nonexclusive factors from Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976), including:

No single Holley factor is controlling, and the Department need not produce evidence on every factor. The analysis remains child-centered and may consider both direct and circumstantial evidence, the parent’s past conduct, and reasonable inferences about future behavior.

For legal sufficiency, the reviewing court asks whether a reasonable factfinder could have formed a firm belief or conviction that the challenged finding was true. The court views the evidence in the light most favorable to the finding, respects reasonable credibility determinations, and does not disregard undisputed evidence contrary to the finding. See In re J.W., 645 S.W.3d 726, 741 (Tex. 2022); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

For factual sufficiency, the reviewing court weighs disputed evidence contrary to the finding against all evidence favoring it and determines whether the entire record permitted the factfinder reasonably to form the required firm belief or conviction. See In re A.C., 560 S.W.3d 624, 631 (Tex. 2018); In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002).

The court also emphasized that best interest is a broad, fact-intensive determination committed substantially to the factfinder’s discretion. The trial judge, as factfinder, remained the sole judge of witness credibility and demeanor. See In re Lee, 411 S.W.3d 445, 460 (Tex. 2013); In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021).

Application

The appellate court evaluated the mother’s recent progress in the context of the entire case rather than treating service-plan completion as dispositive. Her negative drug tests, counseling attendance, participation in sober living, and substantial completion of services were favorable evidence. The trial court nevertheless was entitled to assess whether that progress demonstrated durable change, particularly because it occurred late in the litigation and within a highly structured environment.

The record contained a recurring pattern of methamphetamine use and relapse. The mother used methamphetamine after E.J.’s birth, missed required testing for several months, admitted renewed use, and later tested positive twice. Her history permitted the trial court to infer that the risk to E.J. had not been eliminated merely because she had maintained sobriety for several months immediately before trial. The trial court could also consider that the mother had not yet demonstrated an ability to maintain sobriety while independently managing housing, employment, and daily parenting responsibilities.

The mother’s visitation history independently affected the best-interest analysis. Attendance at only approximately 40% of available weekly visits limited the development of the parent-child relationship and demonstrated inconsistency in meeting E.J.’s emotional needs. Her move to San Antonio and extended failure to respond to the case manager further supported concern about reliability and engagement.

Housing and employment evidence also weighed against reunification. The mother’s sober-living program offered structure and room and board, but the proposed arrangement had not previously accommodated a resident with a child. Her employment outside the program had not been verified for an extended period. The factfinder therefore could view her proposed plan as uncertain rather than as an established, child-ready placement.

In contrast, E.J. had spent nearly his entire life in the same foster home. He was bonded with the foster family, had become part of their household, was developmentally healthy, and had prospects for adoption. The foster family presented a concrete and permanent plan, while the mother’s plan depended on continued progress in a setting that had not been tested as a placement for E.J. The guardian ad litem’s recommendation further supported the conclusion that permanence with the foster family served the child’s best interest.

The appellate court deferred to the trial court’s resolution of the competing evidence. The issue was not whether the mother had made meaningful progress; she had. The dispositive question was whether the record, considered as a whole, allowed the trial court to form a firm belief or conviction that termination served E.J.’s best interest. Her relapse history, limited visitation, instability, and uncertain parenting plan, measured against E.J.’s stable and adoptive placement, satisfied that standard.

Holding

The Eleventh Court held that the evidence was legally and factually sufficient to support the best-interest finding under Texas Family Code § 161.001(b)(2). The mother’s recent sobriety and service-plan compliance did not require reversal because the trial court could weigh those improvements against her recurring methamphetamine use, inconsistent visitation, unstable housing and employment, and failure to demonstrate sustained independent stability.

The court also upheld the trial court’s findings concerning the Department’s reasonable efforts to return E.J. and the continuing danger that prevented return. The court therefore overruled the mother’s appellate challenges and affirmed the order terminating her parental rights.

Practical Application

Termination counsel should treat In re E.J. as a reminder that a best-interest case is built on trajectories, not snapshots. For the Department or another party seeking termination, proof should establish the chronology of substance use, testing, treatment, relapse, visitation, housing, employment, and communication. The persuasive force comes from connecting that history to the child’s present and future need for safety and permanence.

For a parent opposing termination, checking service-plan boxes is not enough. Counsel should present evidence that improvement is sustained, independently verifiable, and transferable outside a controlled program. A parent relying on recent sobriety should be prepared to explain prior relapses, establish a meaningful relapse-prevention plan, document consistent testing, and show how housing, childcare, transportation, employment, and treatment will function if the child is returned.

Visitation evidence should receive the same attention as drug-testing evidence. Attendance records, cancellations, transportation barriers, Department scheduling issues, and the quality of parent-child interactions can materially affect the best-interest analysis. If missed visits resulted from circumstances beyond the parent’s control, counsel must develop that explanation through documents and third-party testimony rather than rely solely on the parent’s account.

In divorce and nontermination custody cases, the opinion supports a similar strategic approach. A litigant alleging that the other parent’s substance abuse or instability warrants supervised possession should offer a dated evidentiary record and explain the impact on the child. Conversely, the responding parent should demonstrate sustained behavioral change and propose specific safeguards, such as testing, treatment, sober monitors, supervised possession, or a step-up schedule. The court should not be asked merely to choose between labels such as “recovered” and “addicted”; it should be given evidence from which to assess risk over time.

Practitioners should also distinguish economic hardship from legally significant instability. Lack of wealth is not endangerment and should not become a proxy for parental fitness. The relevant evidence is whether the parent can provide a safe, reliable, and workable plan for the child and whether claimed housing and employment arrangements are verified and durable.

Checklists

Building a Best-Interest Record

Proving Sustained Parental Rehabilitation

Litigating Visitation Evidence

Evaluating a Sober-Living or Residential Placement

Defending Against a Late-Improvement Argument

Preserving a Sufficiency Challenge

Citation

In re E.J., No. 11-26-00077-CV (Tex. App.—Eastland Oct. 8, 2026, no pet. h.) (mem. op.).

Full Opinion

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