Section 161.001 Endangerment Evidence Insufficient | In re E.J.G.-S. (2026)

In the Interest of E.J.G.-S., E.G.A., and E.J.A., Children, 04-26-00296-CV, October 07, 2026.

On appeal from 45th Judicial District Court, Bexar County, Texas

Synopsis

The Fourth Court of Appeals held that clear and convincing evidence did not support termination of Father’s parental rights on either endangerment ground pleaded and found by the trial court. The evidence was legally insufficient under Texas Family Code § 161.001(b)(1)(D) and factually insufficient under § 161.001(b)(1)(E), requiring reversal and remand of the portion of the judgment terminating Father’s parental rights.

Relevance to Family Law

This opinion reinforces an important distinction in termination and custody litigation: evidence that raises legitimate concerns about a parent does not necessarily establish statutory endangerment by clear and convincing evidence. In divorce and SAPCR proceedings, the same evidence—domestic conflict, substance use, incarceration, delayed services, or instability—may support conservatorship restrictions, possession conditions, injunctions, or supervised access under a preponderance standard. But termination requires proof tied to a specific statutory predicate ground and sufficient to produce a firm belief or conviction.

For litigators, the case also underscores the need to separate the conduct of one parent from that of the other. A parent’s presence in a troubled household, victimization in a domestically violent relationship, or imperfect compliance with services cannot automatically be converted into proof that the parent knowingly permitted an endangering environment or engaged in a deliberate course of endangering conduct. The opinion has no direct effect on characterization or division of marital property, although the same underlying facts may affect temporary orders, exclusive use of a residence, reimbursement claims, or enforcement strategy in a related divorce.

Case Summary

Fact Summary

The Department of Family and Protective Services became involved because of concerns about the parents’ alcohol use and domestic violence. Mother was identified as the perpetrator of the domestic violence, while Father was identified as the victim. The children were not physically injured during the incidents, but the Department was concerned about their exposure to the parents’ relationship and alcohol use.

The Department initially attempted to address the situation through a safety plan. That effort failed after Mother became intoxicated, took her uncle’s vehicle, struck parked vehicles, and returned to the residence demanding entry. Mother also had a pending charge for driving while intoxicated with a child in the vehicle. The Department subsequently sought removal, temporary managing conservatorship, and termination.

Father’s service plan required him to address substance-abuse and domestic-violence concerns, complete parenting classes and individual counseling, submit to testing, and maintain stable housing and employment. Father received the plan in June 2025 but was incarcerated from July 23 until approximately October 14. After his release, he resumed visitation but did not begin several services until approximately one month before trial. The Department attributed the delay to Father; Father testified that referral problems arising during the caseworker’s leave contributed to it. By trial, however, Father had begun all required services and was making progress.

Father maintained regular contact with his children after his release. The permanency specialist testified that the visits generally went well and described Father as a hands-on parent who had served as the children’s primary caregiver during his relationship with Mother. He brought home-cooked meals, appropriately redirected the children, and appeared bonded to them.

The two children involved in Father’s appeal were placed together with maternal aunts in a foster-to-adopt home. They received therapy and other services, and the evidence showed improvement in their emotional well-being, development, and school performance. Their caregivers intended to adopt them if both parents’ rights were terminated.

Following a bench trial, the trial court found that Father endangered the children under Texas Family Code § 161.001(b)(1)(D) and (E) and that termination was in their best interest. Father challenged the sufficiency of the evidence supporting both predicate findings and the best-interest finding.

Mother also appealed the termination of her parental rights to all three children. Her appointed appellate counsel filed an Anders brief concluding that no arguable grounds for reversal existed. The appellate court affirmed the judgment as to Mother.

Issues Decided

• Whether legally and factually sufficient evidence supported the finding that Father knowingly placed or knowingly allowed the children to remain in endangering conditions or surroundings under § 161.001(b)(1)(D).

• Whether legally and factually sufficient evidence supported the finding that Father engaged in conduct, or knowingly placed the children with persons who engaged in conduct, that endangered their physical or emotional well-being under § 161.001(b)(1)(E).

• Whether the judgment terminating Father’s parental rights could stand when neither predicate endangerment ground was supported by sufficient evidence.

• Whether Mother’s appeal presented any arguable ground for reversal under the Anders procedure.

Rules Applied

Texas Family Code § 161.001(b) requires the Department to establish both a statutory predicate ground and that termination is in the child’s best interest. Each element must be established by clear and convincing evidence. See Tex. Fam. Code §§ 101.007, 161.001(b), 161.206(a).

Clear and convincing evidence is proof sufficient to produce in the factfinder a firm belief or conviction that the allegation is true. Because termination permanently affects the parent-child relationship, the heightened burden of proof also shapes appellate sufficiency review. In re N.G., 577 S.W.3d 230, 235 (Tex. 2019); In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018).

For legal sufficiency, the reviewing court considers all evidence in the light most favorable to the challenged finding and asks whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. For factual sufficiency, the court weighs all the evidence, including disputed and contrary evidence, and determines whether the contrary evidence is so significant that a reasonable factfinder could not have formed the required firm belief or conviction. Although appellate courts defer to credibility and weight determinations, that deference does not eliminate meaningful review under the clear-and-convincing standard.

Subsection (D) permits termination when a parent knowingly places or knowingly allows a child to remain in conditions or surroundings that endanger the child’s physical or emotional well-being. It focuses principally on the child’s environment and living conditions, generally before removal.

Subsection (E) permits termination when a parent engages in conduct, or knowingly places a child with persons who engage in conduct, that endangers the child’s physical or emotional well-being. It focuses on the parent’s acts, omissions, and course of conduct.

“Endanger” means exposing a child to loss or injury or jeopardizing the child’s physical or emotional well-being. Actual injury is not required, and the conduct need not be directed at the child. Nevertheless, the Department must prove the statutory elements as to the parent whose rights it seeks to terminate; endangering conduct cannot be assigned to that parent merely because another household member engaged in it. See In re J.W., 645 S.W.3d 726, 748 (Tex. 2022); Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

Application

The record undoubtedly contained evidence of a dangerous and unstable family situation. Mother’s intoxication, vehicle crash, alleged impaired driving with a child, treatment history, and role in the domestic violence gave the Department substantial reasons for intervention. The appellate question, however, was not whether the household presented concerns in the abstract. It was whether the evidence established Father’s own statutory responsibility for endangerment by the elevated clear-and-convincing standard.

As to subsection (D), the court focused on the requirement that Father knowingly placed or knowingly allowed the children to remain in endangering conditions or surroundings. The evidence identified Mother as the domestic-violence perpetrator and Father as the victim. Although the children had been exposed to conflict and alcohol-related instability, the Department still had to connect those environmental conditions to Father’s knowledge and conduct in a manner sufficient to establish subsection (D). Viewed even under legal-sufficiency review, the evidence did not permit a reasonable factfinder to form a firm belief or conviction that Father committed the conduct described by subsection (D).

Subsection (E) required a different inquiry because it focused on Father’s course of conduct rather than solely on the children’s environment. The trial court could consider Father’s incarceration, the delay in beginning services, substance-abuse concerns, domestic-violence issues, and any relevant acts or omissions. But factual-sufficiency review also required consideration of the contrary evidence.

That contrary evidence was substantial. Father had acted as the children’s primary caregiver, maintained regular visitation following his release, and behaved appropriately during visits. He brought meals, redirected the children appropriately, and demonstrated a connection with them. Although he began services late, the cause of the delay was disputed, and by trial he had begun all required services in earnest and was making progress. When the evidence was considered as a whole, the proof contrary to the subsection (E) finding prevented a reasonable factfinder from forming a firm belief or conviction that Father had engaged in the required endangering course of conduct.

The opinion therefore illustrates that incarceration and delayed service-plan compliance are relevant but not self-proving. They must be connected to a voluntary, deliberate, and conscious course of conduct that endangered the children. Likewise, evidence supporting removal or continued Department involvement does not automatically satisfy the greater burden required for permanent termination.

Holding

The Fourth Court of Appeals held that the evidence was legally insufficient to support termination under Texas Family Code § 161.001(b)(1)(D). The record did not provide clear and convincing proof that Father knowingly placed or knowingly allowed the children to remain in endangering conditions or surroundings.

The court further held that the evidence was factually insufficient under § 161.001(b)(1)(E). Considering the entire record—including Father’s caregiving history, consistent post-release visitation, appropriate parenting during visits, disputed explanation for delayed services, and progress by trial—the evidence could not support a firm belief or conviction that Father engaged in a statutory course of endangering conduct.

Because neither predicate ground survived sufficiency review, the judgment terminating Father’s parental rights could not stand. The appellate court reversed that portion of the judgment and remanded the case to the trial court. It affirmed the judgment in all other respects, including the termination of Mother’s parental rights.

Practical Application

For the Department or another party seeking termination, the case counsels against presenting the family’s circumstances as an undifferentiated whole. The proof must identify what each parent did, what each parent knew, when that parent acquired the relevant knowledge, and how the parent’s action or omission satisfies the precise language of the asserted predicate ground.

A subsection (D) case should be organized around the children’s conditions or surroundings before removal. Counsel should establish the nature of the danger, the parent’s knowledge of it, the parent’s ability to act, and the parent’s decision to place or leave the children in that environment. Evidence that another parent created the danger will not necessarily establish that the respondent parent knowingly allowed it to continue.

A subsection (E) case should establish a course of conduct rather than rely on isolated adverse facts. Incarceration, alcohol use, delayed services, missed testing, and continued involvement in a volatile relationship may be probative, but counsel should connect those facts to a deliberate pattern that endangered the child. The underlying reason for incarceration, the timing of the conduct, the parent’s response to intervention, and evidence of rehabilitation all matter.

For parents defending against termination, the case supports a parent-specific trial strategy. Counsel should resist collective references to “the parents” where the conduct materially differs. Evidence that the client was a domestic-violence victim, primary caregiver, consistent visitor, appropriate parent during visits, or active participant in services should be developed through both testimony and objective records.

In divorce and custody litigation, the opinion also provides a framework for challenging requests for severe conservatorship restrictions based on generalized allegations of household dysfunction. Although ordinary conservatorship determinations employ a different standard, counsel should still demand a clear connection between the requested restriction and the particular parent’s conduct. Conversely, counsel seeking supervised possession or other protections should build that connection rather than relying only on misconduct attributed to the opposing parent’s spouse or partner.

Finally, trial counsel should preserve separate legal- and factual-sufficiency challenges. Subsection (D) and subsection (E) are not interchangeable, and appellate briefing should analyze the distinct evidentiary requirements of each ground. A global assertion that “the evidence does not show endangerment” forfeits much of the strategic force available from the statutory distinctions.

Checklists

Building a Subsection (D) Case

• Identify the specific conditions or surroundings alleged to be dangerous.
• Establish when and how the parent learned of those conditions.
• Prove that the parent had the ability or opportunity to remove or protect the child.
• Connect the parent’s decision or omission to the child’s continued presence in the environment.
• Focus on evidence concerning the child’s environment before removal.
• Distinguish the respondent parent’s conduct from the conduct of other household members.
• Address evidence that the parent was a victim rather than a perpetrator of domestic violence.
• Present corroborating records, photographs, reports, messages, and witness testimony.
• Explain how the evidence satisfies the clear-and-convincing standard, not merely a preponderance standard.

Building a Subsection (E) Case

• Identify the alleged course of conduct with dates and specific events.
• Determine whether the conduct was voluntary, deliberate, and conscious.
• Connect each material act or omission to a risk to the child’s physical or emotional well-being.
• Establish the underlying facts of any incarceration rather than relying on incarceration alone.
• Document substance use through testing, admissions, treatment records, or competent testimony.
• Explain how missed services relate to danger rather than treating noncompliance as an independent termination ground.
• Address post-removal conduct when it bears on the parent’s ongoing course of behavior.
• Anticipate evidence of rehabilitation, visitation, caregiving ability, and service-plan progress.
• Avoid relying on isolated incidents without showing their relationship to a broader pattern.

Defending a Parent Against Endangerment Findings

• Require the opposing party to specify whether each fact supports subsection (D), subsection (E), or both.
• Object to testimony that collectively attributes one parent’s conduct to “the parents.”
• Establish whether the client was the perpetrator or victim of domestic violence.
• Develop evidence of the client’s historical role as caregiver.
• Obtain visitation logs and testimony concerning the quality of parent-child interactions.
• Document meals, supplies, transportation, communication, and other parental involvement.
• Preserve evidence of referral failures, scheduling problems, caseworker leave, and provider delays.
• Document the date each service began and the client’s progress toward completion.
• Explain gaps in services with admissible evidence rather than leaving them unrebutted.
• Present stable-housing and employment evidence when available.
• Challenge any inference based on incarceration unless the underlying conduct and its endangering effect are proven.
• Request separate findings as to each parent and each statutory predicate ground.

Preserving Sufficiency Issues for Appeal

• Obtain a complete reporter’s record and ensure exhibits are formally admitted.
• Move for directed verdict or judgment on legally insufficient grounds when procedurally appropriate.
• Request specific findings identifying each predicate ground.
• Challenge legal sufficiency and factual sufficiency separately.
• Analyze subsections (D) and (E) independently.
• Identify evidence favorable to the finding under the proper legal-sufficiency standard.
• Identify disputed and contrary evidence under the factual-sufficiency standard.
• Explain why the evidence cannot produce a firm belief or conviction.
• Preserve challenges to the best-interest finding even when challenging every predicate ground.
• Address the appropriate appellate disposition, including rendition or remand.
• Account for the accelerated timetable governing parental-termination appeals.

Applying the Decision in Divorce and Custody Cases

• Separate termination standards from ordinary conservatorship and possession standards.
• Identify the burden of proof governing each requested form of relief.
• Connect requested restrictions to the conduct of the particular parent.
• Avoid treating domestic-violence victimization as equivalent to perpetration.
• Use temporary orders to address immediate safety concerns without overstating the proof.
• Consider supervised possession, testing, injunctions, or treatment conditions when termination is not supportable.
• Develop evidence showing whether restrictions remain necessary at final trial.
• Address how the proposed order protects the child while preserving the parent-child relationship when appropriate.

Citation

In re E.J.G.-S., No. 04-26-00296-CV, slip op. (Tex. App.—San Antonio Oct. 7, 2026, no pet. h.) (mem. op.).

Full Opinion

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