Section 161.001(b)(1)(E) Conduct Endangerment | In re C.K. & K.A.R. (2026)

In the Interest of C.K. and K.A.R., 09-26-00180-CV, October 08, 2026.

On appeal from County Court at Law No. 3, Montgomery County, Texas

Synopsis

Clear and convincing evidence of Mother’s repeated methamphetamine use, failure to establish sustained sobriety, unstable housing, violent behavior, and continued exposure of the children to unsafe conditions supported termination under Texas Family Code § 161.001(b)(1)(E). Considering the evidence under both legal- and factual-sufficiency standards, the Beaumont Court of Appeals held that the trial court could form a firm conviction that Mother had engaged in a course of conduct endangering the children’s physical or emotional well-being.

Relevance to Family Law

Although this is a termination case, its practical reach extends to contested conservatorship proceedings, modification suits, emergency removals, and divorces involving children. The opinion illustrates how substance abuse becomes significantly more probative when combined with missed drug tests, unstable housing, family violence, criminal conduct, safety-plan violations, inconsistent visitation, and failure to complete services. In ordinary custody litigation, where the burden is generally lower than the clear-and-convincing standard required for termination, the same evidence may support temporary restrictions, supervised possession, drug-testing protocols, geographic or third-party safeguards, or appointment of the other parent as sole managing conservator.

The case does not establish a new property-division rule. In a divorce, however, evidence that a spouse used community resources to support drug use, incurred criminal-related expenses, damaged property, or destabilized the marital estate may also become relevant to waste, fraud on the community, reimbursement, or a request for a disproportionate division—provided counsel develops the required financial nexus rather than relying solely on evidence of parental misconduct.

Case Summary

Fact Summary

The Department became involved with five-year-old Colt and one-year-old Kyle against a background of substance abuse, unstable housing, family conflict, and concerns about the children’s living conditions. When the Department’s investigator first met with the family, Mother and Grandmother were engaged in a loud argument concerning Mother’s failed drug test. The confrontation included screaming and profanity in front of the children. Mother admitted using methamphetamine but initially maintained that she did not need rehabilitation.

The Department also investigated the homes and adults surrounding the children. Grandmother’s residence smelled of cat urine, and the record included photographs depicting trash, a litter box, and what appeared to be cat feces on bedding. The investigator observed Grandmother and her husband yelling and cursing at one another, followed by physical contact. Grandmother acknowledged a history of domestic violence that had resulted in bruises and black eyes.

Mother and the children later resided with Aunt. According to the investigator, the children were removed after Mother violated a safety plan by locking herself and the children in a room and threatening to take them from the residence. Aunt testified that Mother admitted using marijuana and methamphetamine and reported beginning drug use at age fifteen. Aunt believed Mother had not maintained sobriety for more than brief periods.

The documentary evidence showed a positive test for amphetamine and methamphetamine in July 2024. Mother subsequently produced several negative tests, but numerous tests scheduled between August and December 2025 were treated as presumptively positive. The Department’s conservatorship worker testified that Mother had not established a pattern of sobriety.

Substance abuse was not the only evidence bearing on endangerment. Mother and the children had moved frequently, and Mother did not demonstrate that she could provide stable, safe housing. She had a criminal history that included assaultive conduct and was arrested after shoving Aunt during a confrontation at Aunt’s home. The record also reflected a charge for violating a bond condition by communicating with a protected person.

Mother’s participation in the case was minimal. The conservatorship workers testified that she did not complete her family service plan despite multiple referrals and offers of transportation assistance. She attended only a small number of the weekly visits offered to her. Aunt further testified that Colt became angry and aggressive after visits with Mother and required approximately two weeks to recover emotionally.

Meanwhile, the children were doing well in Aunt’s care. Kyle was receiving physical and occupational therapy and making progress. The Department’s worker and the CASA advocate testified that Aunt’s family was meeting the children’s needs and providing a safe and stable placement.

Following a bench trial, the trial court found predicate grounds under Texas Family Code § 161.001(b)(1)(D), (E), and (N), found termination to be in the children’s best interest, terminated Mother’s parental rights, and appointed the Department permanent managing conservator. Mother did not personally appear for trial but was represented by appointed counsel.

Issues Decided

Mother challenged:

• The legal and factual sufficiency of the evidence supporting the condition-endangerment finding under Texas Family Code § 161.001(b)(1)(D).
• The legal and factual sufficiency of the evidence supporting the conduct-endangerment finding under § 161.001(b)(1)(E).
• The legal and factual sufficiency of the evidence supporting constructive abandonment under § 161.001(b)(1)(N).
• The sufficiency of the evidence supporting the finding that termination was in the children’s best interest under § 161.001(b)(2).
• The trial court’s appointment of the Department as permanent managing conservator.
• Whether the termination order should be reversed based on the alleged insufficiency of the predicate-ground and best-interest findings.

The featured appellate issue was whether Mother’s methamphetamine use and related pattern of unsafe, violent, and unstable conduct permitted the factfinder to form a firm belief or conviction that she endangered the children under subsection (E).

Rules Applied

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

Under § 161.001(b)(1)(E), termination may be based on proof that a parent “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.” The focus is on the parent’s acts, omissions, and course of conduct rather than exclusively on the physical conditions of a particular home.

The relevant principles include:

• “Endanger” means exposing a child to loss, injury, or jeopardy; the child need not suffer actual injury.
• The endangering conduct need not be directed at the child, and the child need not be present when the conduct occurs.
• Subsection (E) ordinarily requires a voluntary, deliberate, and conscious course of conduct rather than an isolated act.
• A parent’s conduct before and after the child’s birth, before and after removal, and both inside and outside the child’s presence may be considered.
• Illegal drug use may support an endangerment finding because it can impair parental judgment, expose the parent to incarceration, and create instability and uncertainty in the child’s life.
• Drug use is particularly significant when accompanied by missed tests, refusal of treatment, criminal conduct, family violence, unstable housing, or failure to participate in court-ordered services.
• Evidence of some negative drug tests does not require reversal when the record as a whole permits the factfinder to conclude that the parent failed to establish sustained sobriety.

For legal sufficiency, the reviewing court considers the evidence in the light most favorable to the finding and asks whether a reasonable factfinder could form a firm belief or conviction that the statutory ground was proved. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

For factual sufficiency, the court considers the entire record, including contrary evidence, and determines whether disputed evidence is so significant that a reasonable factfinder could not have formed the required firm belief or conviction. See In re J.F.C., 96 S.W.3d at 266.

Only one predicate ground, coupled with a best-interest finding, is generally necessary to support termination. When subsection (D) or (E) is challenged, however, appellate review of those findings is required because they may have collateral consequences in future termination proceedings. See In re N.G., 577 S.W.3d 230, 237–39 (Tex. 2019).

Application

The court did not treat Mother’s methamphetamine use as an isolated event. Mother admitted using methamphetamine, tested positive for amphetamine and methamphetamine, and later accumulated numerous tests that were treated as presumptively positive. Although the record contained several negative tests, the Department’s evidence showed that Mother had not developed a reliable pattern of sobriety. Her initial refusal to acknowledge a need for rehabilitation and her failure to complete services further allowed the trial court to view the drug evidence as part of an unresolved course of conduct.

The surrounding circumstances reinforced the endangerment finding. Mother did not demonstrate stable and appropriate housing and had moved the children repeatedly. She exposed them to volatile adult conflict, violated a Department safety plan, and locked herself in a room with the children while threatening to remove them from Aunt’s home. Her assaultive and criminal conduct created an additional risk that she could be arrested and leave the children without an available caretaker.

Mother’s conduct during the case also informed the factfinder’s assessment of future risk. Despite referrals and transportation assistance, she did not complete her service plan, did not consistently submit to drug testing, and attended only a small fraction of the visits offered to her. This evidence permitted the trial court to conclude that the concerns prompting removal had not been resolved.

The appellate court considered the contrary evidence, including Mother’s negative drug tests. Nevertheless, those tests did not negate the positive methamphetamine result, Mother’s admission, the series of presumptively positive missed tests, or the broader evidence of violence, housing instability, unsafe decision-making, and noncompliance. In combination, the evidence supported a firm conviction that Mother had followed a continuing course of conduct that jeopardized the children’s physical and emotional well-being.

Holding

The Beaumont Court of Appeals held that the evidence was legally sufficient to support termination under Texas Family Code § 161.001(b)(1)(E). Viewed in the light most favorable to the trial court’s finding, Mother’s admitted and documented methamphetamine use, failure to establish sustained sobriety, unstable housing, violent conduct, safety-plan violation, and failure to complete services permitted a reasonable factfinder to form a firm belief or conviction that she endangered the children.

The court also held that the subsection (E) finding was supported by factually sufficient evidence. Mother’s negative tests did not make the contrary evidence so significant that the trial court could not reasonably form the required firm belief or conviction. The court was entitled to assess the drug evidence as one component of Mother’s broader and continuing pattern of unsafe and unstable behavior.

The court affirmed the order terminating Mother’s parental rights and appointing the Department as the children’s permanent managing conservator.

Practical Application

For counsel seeking an endangerment finding, the strategic lesson is to prove a course of conduct rather than simply presenting a positive drug test. Connect the substance abuse to missed testing, treatment refusal, impaired judgment, unstable housing, criminal exposure, family violence, safety-plan violations, and the parent’s conduct after removal. A chronological presentation is often the most effective way to demonstrate that the problem was recurring and remained unresolved at trial.

For a parent defending against termination or seeking conservatorship, isolated negative tests are not enough when substantial gaps remain in the testing history. The defense should develop a documented sobriety narrative: consistent testing, completion of treatment, relapse-prevention planning, stable housing, reliable employment, regular visitation, and credible testimony from providers with direct knowledge. Counsel should also address every missed test with admissible evidence rather than allowing the factfinder to treat nonappearance as continued drug use.

In temporary-orders and custody litigation, practitioners should distinguish evidence of historical misconduct from evidence of present danger. A parent opposing restrictions should demonstrate both behavioral change and the durability of that change. Conversely, counsel seeking supervised possession should show why less restrictive safeguards would not adequately protect the child.

The decision also underscores the importance of evidence concerning a child’s emotional response to visitation. Testimony that a child became angry or aggressive and required an extended period to recover may be persuasive, but it should be supported where possible by therapists, teachers, medical professionals, visitation supervisors, or contemporaneous records. Counsel should avoid asking the court to infer causation solely from a caregiver’s generalized observations.

Finally, evidence of instability must be developed with precision. Frequent moves, unsafe residences, domestic violence, arrests, and failure to maintain employment can collectively establish a pattern, but each fact should be tied to its effect on the child’s safety, continuity of care, or emotional well-being.

Checklists

Building a Subsection (E) Endangerment Record

• Create a dated chronology of drug use, testing, missed tests, treatment referrals, relapses, and periods of claimed sobriety.
• Obtain certified or properly authenticated laboratory reports.
• Establish the testing protocol and the consequences of a missed or refused test.
• Prove admissions of drug use through admissible testimony, records, or authenticated communications.
• Connect substance abuse to parenting decisions, housing instability, criminal conduct, or lapses in supervision.
• Develop evidence of conduct occurring both before and after removal.
• Document safety-plan violations and explain the specific danger created.
• Identify family violence, protective orders, arrests, and bond violations.
• Prove the parent’s participation—or lack of participation—in services and visitation.
• Present evidence concerning the child’s physical or emotional response to the parent’s conduct.
• Show the child’s current condition and stability in the existing placement.

Defending a Parent Accused of Conduct Endangerment

• Obtain the complete testing history, including all negative and inconclusive results.
• Challenge unsupported assumptions that every missed test establishes actual drug use.
• Document transportation problems, scheduling errors, medical issues, or other explanations for missed testing.
• Secure testimony from treatment providers regarding attendance, progress, prognosis, and relapse prevention.
• Demonstrate stable housing through leases, inspections, photographs, and utility records.
• Establish lawful employment or another reliable means of support.
• Preserve records of visitation attendance and efforts to reschedule missed visits.
• Address every service-plan requirement individually.
• Present evidence of compliance with protective orders, bond conditions, and criminal-court requirements.
• Explain historical misconduct without minimizing it, and prove concrete behavioral change.
• Consider requesting incremental safeguards, such as supervised possession or continued testing, as alternatives to termination.

Preparing the Drug-Testing Evidence

• Confirm that the test identifies the substance, cutoff level, collection date, and testing methodology.
• Determine whether the result was a screening test or confirmed by a second analytical method.
• Authenticate business records and satisfy any required hearsay exception.
• Identify who ordered the test and whether the parent received proper notice.
• Establish the policy governing missed or refused tests.
• Separate actual positive results from results deemed positive by presumption.
• Compare positive results with prescriptions and medical records.
• Use a visual timeline to show patterns, gaps, relapse, or sustained sobriety.
• Anticipate challenges to chain of custody and sample identification.
• Avoid overstating what a test proves about timing, impairment, or use in the child’s presence.

Proving or Contesting Instability

• Document each residence and the dates the parent and children lived there.
• Obtain photographs, inspection reports, lease records, and witness testimony concerning living conditions.
• Identify domestic-violence incidents occurring in or around the residence.
• Determine whether unsafe persons had access to the children.
• Develop evidence concerning food, utilities, sanitation, sleeping arrangements, and medical care.
• Connect residential changes to school disruption, missed services, or interrupted medical treatment.
• Distinguish poverty from parental conduct that creates danger.
• Present evidence of current conditions rather than relying exclusively on historical photographs.
• Address whether relatives or other adults can provide safe, reliable support.
• Explain why proposed safeguards would or would not reduce the identified risk.

Preserving the Appellate Record

• Request findings identifying each predicate ground and the best-interest determination.
• Make legal- and factual-sufficiency arguments separately.
• Preserve objections to drug-test records, photographs, criminal records, and hearsay testimony.
• Ensure all exhibits are formally admitted and included in the appellate record.
• Obtain rulings on excluded evidence through offers of proof.
• Challenge both subsection (D) and subsection (E) findings when applicable because of their collateral consequences.
• Tie briefing to the clear-and-convincing burden and the corresponding appellate standards.
• Address evidence contrary to the finding rather than discussing only favorable evidence.
• Brief conservatorship separately when the appointment is independently challenged.
• Avoid relying on facts or documents that were never admitted at trial.

Citation

In re C.K. & K.A.R., No. 09-26-00180-CV (Tex. App.—Beaumont Oct. 8, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion from the Ninth Court of Appeals

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