Section 161.001(b)(1)(E) Drug-Use Endangerment | In re A.L.L.N.R. (2026)

In the Interest of A.L.L.N.R. and A.R.A.R., Children, 04-26-00221-CV, September 30, 2026.

On appeal from 438th Judicial District Court, Bexar County, Texas

Synopsis

Recurring methamphetamine and controlled-substance use, missed drug tests, and repeated failure to complete recommended treatment permitted the trial court to form a firm conviction that the father engaged in endangering conduct under Texas Family Code § 161.001(b)(1)(E). The Fourth Court of Appeals affirmed the termination order, concluding that the evidence satisfied the clear-and-convincing standard applicable to termination proceedings.

Relevance to Family Law

Although In re A.L.L.N.R. is a termination case, its evidentiary lessons extend directly to divorce and private SAPCR litigation involving conservatorship, possession, geographic restrictions, and requests for supervised access. A sustained pattern of drug use—particularly when combined with missed testing, unsuccessful discharges, and failure to follow treatment recommendations—can establish more than an isolated lapse; it can demonstrate instability, impaired judgment, and an ongoing risk to a child. The same evidence may support temporary restraints, supervised possession, sobriety conditions, testing protocols, or limitations on conservatorship rights even when termination is not requested.

The decision has a more limited connection to property litigation. Substance abuse does not automatically justify a disproportionate property division, but related conduct may become relevant if it caused waste, dissipation of community assets, employment instability, criminal exposure, or extraordinary expenditures. Litigators should separate the child-safety consequences of drug use from any property claim and develop the required evidentiary nexus for each form of relief.

Case Summary

Fact Summary

The Department had previously investigated Mother and Father, and their parental rights to two older children had been terminated in separate proceedings. The present case concerned their son, born in 2023, and daughter, born in 2024.

After Daughter’s birth, testing of her meconium revealed amphetamines and marijuana. Mother admitted that she had taken “a hit of methamphetamine” while pregnant. The Department initially elected not to remove the children, instead attempting to maintain them in the home under a safety plan. Father was first designated as a monitor, but he subsequently tested positive for drugs. A revised safety plan required the paternal great-grandparents to supervise the children and prohibited Mother and Father from being alone with them.

During an unannounced visit, a Department worker discovered that the great-grandparents had left the children unsupervised with the parents. The great-grandparents admitted that this was not an isolated violation and that Mother and Father had been left alone with the children repeatedly. The Department then removed the children and placed them with foster parents.

The parents’ court-ordered service plan required assessments, individual counseling, parenting classes, substance-abuse counseling, employment verification, and random drug testing. Father completed some components, including parenting classes and certain assessments, but did not complete the recommended drug treatment. He missed eleven drug tests, was unsuccessfully discharged from counseling for excessive absences, and did not establish that he obtained replacement counseling.

The admitted laboratory evidence documented Father’s recurring use of methamphetamine and other substances. His urine tested positive for amphetamine and methamphetamine in November 2024 and for amphetamine, methamphetamine, and marijuana in January 2025. An April 2025 hair sample was positive for the same substances. A July 2025 urine sample was positive for marijuana. Although an August 2025 urine sample was negative, a hair sample taken that same day was positive for amphetamine, methamphetamine, and marijuana.

Father entered substance-abuse treatment at Crossroads three times. He failed to complete the first two treatment courses. During the third episode, he completed only the intake and treatment plan, attended no group services, and became inactive after the counselor was unable to connect with him. His diagnoses progressed from mild amphetamine-use disorder to mild alcohol-use disorder, moderate cannabis-use disorder, and moderate stimulant-use disorder.

Father also attended only nineteen of thirty-one available visits with the children. The visits he attended were appropriate, and he attributed several absences to transportation problems. By trial, however, the children had lived with their foster parents for approximately one year, were bonded to them, and looked to them as “mom and dad.”

Following a bench trial, the court found multiple statutory predicates for termination, found that termination was in the children’s best interest, terminated both parents’ rights, and appointed the Department permanent managing conservator. Mother’s appointed appellate counsel filed an Anders brief. Father challenged the legal and factual sufficiency of the predicate findings and best-interest finding, as well as the Department’s appointment as permanent managing conservator.

Issues Decided

Whether legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(E) based on Father’s recurring drug use and course of conduct.
Whether Father’s missed tests and repeated failure to complete recommended substance-abuse treatment could be considered as part of the endangerment analysis.
Whether the evidence supported the trial court’s best-interest determination.
Whether the Department’s appointment as permanent managing conservator could stand following termination.
Whether Mother’s appeal presented any plausible, nonfrivolous ground for reversal under the Anders procedure applicable to parental-termination cases.

Rules Applied

Texas Family Code § 161.001(b) requires clear and convincing evidence of both a statutory predicate under subsection (b)(1) and a finding under subsection (b)(2) that termination is in the child’s best interest. “Clear and convincing evidence” is proof that produces in the factfinder’s mind a firm belief or conviction regarding the truth of the allegations.

Section 161.001(b)(1)(E) authorizes termination when a parent has engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangered the child’s physical or emotional well-being. Subsection (E) examines the parent’s voluntary, deliberate, and conscious course of conduct rather than a single event viewed in isolation.

Endangerment does not require proof that the parent’s conduct caused an actual injury or that the conduct occurred in the child’s presence. A parent’s recurring illegal-drug use may support an endangerment finding because it can expose the child to instability and uncertainty and can impair the parent’s ability to provide safe and consistent care. Drug use occurring before and after removal may be considered when evaluating the parent’s entire course of conduct.

A factfinder may also consider missed drug tests and noncompliance with treatment alongside confirmed positive results. Avoidance of testing can support an adverse inference when evaluated in the context of documented substance use, while repeated failure to complete recommended treatment may demonstrate that the danger remains unresolved.

On legal-sufficiency review, the appellate court considers the evidence in the light most favorable to the finding and determines whether a reasonable factfinder could have formed a firm belief or conviction. On factual-sufficiency review, the court considers the entire record, including disputed evidence, and asks whether contrary evidence is so significant that the factfinder could not reasonably have reached that firm belief or conviction.

Because subsection (E) findings can have consequences in future termination proceedings, appellate courts must review a properly preserved challenge to an (E) finding even when another predicate ground independently supports termination. See In re N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam).

Application

The appellate analysis did not treat Father’s positive drug tests as disconnected episodes. Instead, the tests established a recurring pattern extending from before removal through the pendency of the case. Father tested positive for methamphetamine, amphetamine, and marijuana on multiple occasions. The negative urine test in August 2025 did not compel a different result because a hair test taken the same day was positive for all three substances.

The treatment evidence reinforced the laboratory evidence. Father received repeated opportunities to address his substance use, but he failed to complete three treatment efforts. He was also unsuccessfully discharged from counseling and did not demonstrate that he followed through with a replacement provider. By the third Crossroads assessment, the reported diagnoses included moderate cannabis- and stimulant-use disorders. The trial court could reasonably view this progression and noncompletion as evidence that Father had not resolved the conduct creating the danger.

Father’s eleven missed tests further supported the trial court’s assessment. In context, the missed testing was not merely a technical violation of the service plan. It occurred against a background of multiple confirmed positive results and unsuccessful treatment. The factfinder could therefore consider the missed tests as part of the broader pattern of avoidance and unresolved substance abuse.

The Department had also attempted a less restrictive safety arrangement before removal. That arrangement failed after Father himself tested positive and the designated supervisors repeatedly left the children alone with the parents. This evidence allowed the court to assess the practical consequences of the parents’ conduct and their inability to maintain the protective structure designed to keep the children safely in the home.

Father offered mitigating evidence. His completed visits were appropriate, he completed some services, and he attributed several missed visits to transportation problems. But the trial court was entitled to weigh those facts against the recurring positive tests, substantial number of missed tests, multiple failed treatment attempts, and the children’s need for stability. The appellate court concluded that the contrary evidence did not prevent a reasonable factfinder from forming a firm conviction that Father had engaged in an endangering course of conduct.

Holding

The Fourth Court held that legally and factually sufficient evidence supported the subsection (E) endangerment finding. Recurring methamphetamine and controlled-substance use, considered together with eleven missed tests and repeated failure to complete recommended treatment, established a voluntary course of conduct that endangered the children’s physical or emotional well-being.

The court also left the best-interest finding undisturbed. The parents’ unresolved substance-abuse issues and incomplete services were weighed against the children’s stable foster placement, their bond with the foster parents, and the foster family’s adoption plan.

Because the termination order was affirmed, Father’s derivative challenge to the Department’s appointment as permanent managing conservator did not provide a basis for reversal.

As to Mother, the court independently reviewed the record under the Anders procedure and concluded that no plausible ground existed for reversing the termination order. The court therefore affirmed the judgment as to both parents.

Practical Application

Build the course of conduct, not merely the positive test. In an endangerment case, counsel should develop a chronology that includes testing dates, substances detected, specimen types, missed tests, treatment recommendations, admissions, relapses, and unsuccessful discharges. The persuasive force often comes from the pattern rather than any single result.

Use specimen type strategically. The simultaneous negative urine and positive hair results in this case illustrate why counsel must understand the detection period and limitations associated with each test. A negative urine result may not rebut a hair result reflecting drug use over a longer period. Retain a qualified toxicologist when timing, contamination, cutoff levels, or testing methodology will be contested.

Connect noncompliance to present risk. Failure to complete treatment is most persuasive when tied to confirmed use, a diagnosis, provider recommendations, and the parent’s inability to demonstrate sustained sobriety. Avoid presenting noncompletion as a purely bureaucratic violation.

Address missed tests directly. Counsel representing the tested parent should document legitimate explanations contemporaneously, request prompt rescheduling, preserve communications with the testing facility, and obtain independent testing when appropriate. Silence and repeated nonappearance allow missed tests to become part of the opposing party’s endangerment narrative.

Apply the lesson in private custody disputes. The ordinary SAPCR does not require proof sufficient to terminate parental rights. Nevertheless, a similar record may support temporary supervised possession, restrictions against drug use before or during possession, random testing, neutral exchanges, or a step-up possession schedule conditioned on treatment and sustained negative results.

Draft enforceable temporary orders. Testing provisions should identify the testing facility, specimen type, frequency, notice method, payment allocation, deadlines, prescription-disclosure procedure, and consequences of a missed or diluted test. Ambiguous testing orders create unnecessary enforcement and admissibility disputes.

Keep property theories analytically separate. If substance abuse affected the marital estate, quantify the economic harm through account records, employment evidence, criminal-defense expenditures, treatment costs, or proof of asset dissipation. Child-safety evidence does not, standing alone, establish waste or justify a disproportionate division.

Checklists

Developing a Drug-Use Endangerment Record

Create a dated chronology of every positive, negative, missed, diluted, or refused test.
Obtain certified laboratory reports and chain-of-custody documentation.
Identify the specimen type and applicable detection period.
Secure testimony explaining the substances, metabolites, cutoff levels, and results.
Obtain admissions made to investigators, counselors, medical providers, or evaluators.
Document all treatment recommendations, diagnoses, intake dates, attendance records, and discharge reasons.
Establish whether drug use continued after removal, court intervention, or warnings.
Connect substance use to impaired judgment, instability, unsafe supervision, or failure of a safety plan.
Preserve evidence of the Department’s or opposing parent’s efforts to use less restrictive safety measures.
Develop evidence concerning the child’s current placement, stability, needs, and caregiver bond.

Defending a Parent Accused of Endangerment

Obtain the complete laboratory file rather than relying solely on a summary report.
Investigate chain of custody, collection procedures, cutoff levels, and possible prescription explanations.
Consult a toxicologist when the timing or meaning of a result is disputed.
Explain any missed test with contemporaneous documents, not trial testimony alone.
Request immediate make-up testing after an excused absence.
Maintain records of prescriptions and disclose them through the proper testing protocol.
Enter treatment promptly and complete every recommended component.
Obtain periodic progress letters from treatment providers.
Demonstrate sustained sobriety through consistent testing over time.
Address transportation, work, childcare, or financial barriers before they cause noncompliance.
Present evidence of safe parenting, appropriate visits, stable housing, and a reliable support network.
Propose concrete protective conditions if unrestricted possession is not immediately realistic.

Drafting Temporary Drug-Testing Orders

Name the authorized testing provider.
Specify urine, hair, nail, oral-fluid, or other required specimens.
State whether testing is random, scheduled, or for cause.
Define how and when notice must be provided.
Set the deadline for appearing after notice.
Allocate testing and confirmation-test costs.
Require disclosure and verification of valid prescriptions.
Define how diluted, adulterated, refused, and missed tests will be treated.
Provide a procedure for confirmation testing and challenges to results.
Specify where results must be sent and who may receive them.
Include treatment, evaluation, or supervision conditions triggered by a positive result.
Protect medical and testing information with appropriately tailored confidentiality provisions.

Preserving the Appellate Record

Challenge legal and factual sufficiency separately where appropriate.
Request findings identifying each predicate ground and the best-interest determination.
Ensure laboratory reports, service plans, treatment records, and safety plans are admitted.
Preserve objections to authentication, hearsay, expert qualifications, and scientific reliability.
Make an offer of proof for excluded toxicology or treatment evidence.
Address subsection (E) specifically because of its potential collateral consequences.
Develop the record concerning both endangerment and best interest.
Preserve any complaint concerning the appointment of the permanent managing conservator independently when supported by law and facts.

Citation

In the Interest of A.L.L.N.R. and A.R.A.R., Children, No. 04-26-00221-CV (Tex. App.—San Antonio Sept. 30, 2026, no pet. h.) (mem. op.).

Full Opinion

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