Section 161.001(b)(1)(E) Endangering Conduct | In re B.C. (2026)

In the Interest of B.C., a Child, 02-26-00292-CV, October 01, 2026.

On appeal from 30th District Court, Wichita County, Texas

Synopsis

The Second Court of Appeals affirmed the termination of Mother’s parental rights after evidence showed a sustained course of drug abuse and criminal conduct, including fentanyl use during pregnancy and conduct resulting in a twelve-year prison sentence. The opinion also underscores a separate appellate lesson: sufficiency complaints following a jury trial must identify the challenged findings with sufficient specificity to preserve review.

Relevance to Family Law

Although In re B.C. is a termination case, its treatment of endangerment evidence has broader significance in divorce and SAPCR litigation. Persistent drug use, prenatal exposure, repeated criminal activity, incarceration, association with substance-abusing partners, and prior terminations can collectively establish a course of conduct bearing on conservatorship, possession, access, geographic restrictions, supervised visitation, and requests for emergency relief.

Practitioners should distinguish termination under Texas Family Code Section 161.001(b)(1)(E) from ordinary custody litigation. Termination requires clear and convincing evidence of a statutory predicate ground and best interest, while conservatorship and possession determinations ordinarily turn on the child’s best interest under different statutory provisions. Nevertheless, the same evidence may support findings that a parent presents a danger to the child, that supervised possession is warranted, or that appointment as managing conservator would significantly impair the child’s physical health or emotional development.

The case has less direct application to property division. Drug abuse and criminal conduct do not automatically determine characterization or division of marital property, but they may become relevant when tied to waste, fraud on the community, dissipation of assets, litigation misconduct, or the economic consequences of criminal activity.

Case Summary

Fact Summary

Mother and Father were both incarcerated when B.C. was born in June 2025. Mother initially arranged for a friend to care for the child while Mother served a twelve-year prison sentence. When the friend reported uncertainty about her ability to continue caring for B.C., the Department of Family and Protective Services initiated proceedings for B.C.’s protection and conservatorship and sought termination of both parents’ rights.

The Department eventually placed B.C. with two of Mother’s relatives who had previously adopted two of B.C.’s half-brothers. The placement was successful, and the caregivers wished to adopt B.C.

Mother’s testimony established a lengthy history of substance abuse and child-welfare involvement. She had eight children, including B.C., and her parental rights to the other seven had been terminated because of her drug use. Although she had attempted reunification in the prior cases, she acknowledged that she had been unable to stop using drugs. She identified methamphetamine, fentanyl, and heroin as her drugs of choice.

Mother also had an extensive criminal history involving drug and other offenses. She and Father were arrested in October 2024 in connection with fentanyl and methamphetamine. Mother was arrested again in November 2024 after she had taken a home pregnancy test, told Father that she was pregnant, and continued using fentanyl. That arrest led to her conviction for possession of methamphetamine and fentanyl with intent to deliver and a twelve-year sentence. She also received a concurrent eight-year sentence for hindering the apprehension of a fugitive.

Mother gave birth to B.C. while incarcerated. Father was serving a thirty-five-year sentence and admitted having eleven felony convictions, including convictions for drug offenses, bail jumping, evading arrest in a vehicle, and unlawful possession of a firearm by a felon. He had never met B.C.

The Department’s case manager testified about efforts to communicate with both parents and provide them with information concerning B.C. She also explained that drug abuse, drug dealing, repeated arrests, and attempts to evade law enforcement endangered a child even when the child was not physically present during the conduct. According to the Department, leaving B.C. in temporary care until one of the parents obtained release, sobriety, and stability would deprive her of permanency and prevent her adoption.

The jury found endangering conduct under Section 161.001(b)(1)(E), constructive abandonment under Section 161.001(b)(1)(N), and criminal conduct resulting in imprisonment and an inability to care for B.C. under Section 161.001(b)(1)(P). It also found that the Department had made reasonable reunification efforts and that termination was in B.C.’s best interest.

Issues Decided

The appellate issues included:

Whether Mother preserved her legal- and factual-sufficiency challenges following the jury verdict.
Whether the evidence supported the endangering-conduct finding under Texas Family Code Section 161.001(b)(1)(E).
Whether the evidence supported the constructive-abandonment finding under Section 161.001(b)(1)(N).
Whether the evidence supported the criminal-conduct and imprisonment finding under Section 161.001(b)(1)(P).
Whether the Department made the required reasonable efforts to return B.C. to Mother.
Whether factually sufficient evidence supported the finding that termination was in B.C.’s best interest.
Whether the trial court abused its discretion by denying Father’s request to place B.C. with Grandfather or obtain a home study concerning Grandfather.
Whether the trial court abused its discretion by denying Father’s request for an extension of the statutory dismissal deadline.

Rules Applied

Texas Family Code Section 161.001(b)(1)(E) authorizes termination when clear and convincing evidence shows that a parent engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangered the child’s physical or emotional well-being. “Endangerment” encompasses exposure to loss, injury, or jeopardy; it does not require proof that the parent’s conduct caused an actual injury.

An endangering course of conduct may include actions and omissions occurring before the child’s birth, after the child’s birth, or while the child is outside the parent’s presence. Persistent illegal drug use may support an endangerment finding because it exposes the child to instability and may impair the parent’s ability to care for the child. Criminal conduct may also be considered when it creates instability, leads to repeated incarceration, or leaves the parent unavailable to meet the child’s needs.

Incarceration, standing alone, does not necessarily establish endangerment under Subsection (E). A factfinder may, however, consider the voluntary criminal conduct that led to incarceration as part of the parent’s broader course of conduct.

Termination additionally requires clear and convincing evidence that termination is in the child’s best interest. One supported predicate ground, together with a supported best-interest finding, is ordinarily sufficient to sustain termination, subject to the special collateral consequences associated with findings under Subsections (D) and (E).

The opinion also applied Texas error-preservation rules governing jury trials:

Under Texas Rule of Appellate Procedure 33.1 and the applicable civil-procedure rules, a party may not ordinarily raise a sufficiency complaint for the first time on appeal.
A legal-sufficiency complaint may be preserved through an instructed-verdict motion, an objection to the jury submission, a motion for judgment notwithstanding the verdict, a motion to disregard a jury answer, or an adequately specific motion for new trial.
A factual-sufficiency complaint must be raised in a motion for new trial.
Texas Rules of Civil Procedure 321 and 322 require a new-trial motion to identify the challenged findings with enough specificity that the trial court can understand and rule on the complaint.
A generalized assertion directed at the verdict as a whole may not preserve a challenge to each separate jury finding.

Application

The evidence portrayed Mother’s conduct as a continuing pattern rather than an isolated lapse. Her history included addiction to methamphetamine, fentanyl, and heroin; the termination of her rights to seven other children because of drug use; repeated arrests and imprisonment; and an admitted inability to achieve sustained sobriety despite prior reunification efforts.

The timing of Mother’s fentanyl use was particularly consequential. She continued using fentanyl after taking a pregnancy test and informing Father that she was pregnant. The jury could consider that prenatal conduct in evaluating whether Mother had pursued a course of conduct that endangered B.C.’s physical or emotional well-being. The analysis did not depend on proof that B.C. was physically present during every criminal act or that a specific injury had already occurred.

Mother’s incarceration was also part of a larger evidentiary picture. The relevant consideration was not merely that Mother was imprisoned. Her confinement resulted from voluntary conduct involving methamphetamine and fentanyl possession with intent to deliver, together with a separate offense for hindering the apprehension of a fugitive. Her twelve-year sentence left her unable to provide B.C. with care or permanence for a substantial portion of the child’s formative years.

The family history reinforced the inference that Mother’s conduct was persistent. Prior termination proceedings had not led to lasting sobriety, and Mother admitted that she had been unable to stop taking drugs. The jury was entitled to assess that history when determining whether the danger was likely to continue.

The appellate presentation added an important procedural limitation. Mother attempted to preserve multiple legal- and factual-sufficiency complaints through a short motion for new trial. The court emphasized that a motion challenging numerous jury findings must identify the particular findings being attacked. A global objection to the verdict does not necessarily preserve separate complaints concerning endangerment, constructive abandonment, criminal conduct, reasonable reunification efforts, and best interest.

Accordingly, the endangering-conduct finding remained intact, while the record in any event contained substantial evidence of persistent drug abuse and criminal conduct. The court separately addressed the properly preserved factual-sufficiency challenge to the best-interest finding and affirmed the judgment.

Holding

The court affirmed the termination judgment. Mother’s persistent substance abuse, including fentanyl use during pregnancy, her prior drug-related terminations, and the criminal conduct that resulted in lengthy incarceration supplied the evidentiary basis for the jury’s endangering-conduct finding under Section 161.001(b)(1)(E).

The court’s preservation analysis was independently significant. Mother’s generalized motion for new trial did not adequately preserve all of her separate legal- and factual-sufficiency challenges. Litigants challenging a multi-question termination verdict must direct their post-verdict motions to the specific statutory findings they intend to contest on appeal.

The court also upheld the best-interest determination. B.C. was in a successful placement with caregivers who had adopted two of her half-brothers and wished to adopt her, while neither parent could offer a timely or stable plan for the child’s care.

Finally, the court affirmed the judgment against the challenges advanced by Father and Grandfather concerning placement with Grandfather and an extension of the statutory dismissal deadline.

Practical Application

For Department cases, In re B.C. demonstrates the importance of proving a pattern. Counsel should organize the evidence chronologically and connect prenatal drug use, post-birth conduct, criminal activity, periods of incarceration, treatment failures, relapses, and prior child-welfare cases. Subsection (E) focuses on the parent’s course of conduct, so the presentation should not be limited to a single positive test or arrest.

For a parent defending against termination, the response must likewise address the entire course of conduct. Merely emphasizing that the child was not present during drug use or criminal activity will rarely answer a Subsection (E) case. Counsel should instead develop evidence of sustained sobriety, treatment completion, relapse-prevention planning, stable housing, safe relationships, consistent contact, and a realistic plan for meeting the child’s immediate—not merely eventual—needs.

In custody and modification litigation, similar evidence can support temporary restraining orders, supervised possession, drug-testing protocols, geographic restrictions, or limitations on decision-making authority. Counsel should identify the nexus between the parent’s conduct and the child’s safety or emotional welfare rather than relying on criminal history as a character attack.

For appellate practitioners, the central procedural lesson is specificity. After an adverse jury verdict, counsel should separately challenge each predicate ground, the best-interest finding, and any additional findings necessary to the judgment. A one-sentence assertion that the “verdict is against the great weight and preponderance of the evidence” may not preserve complaints directed at several distinct jury questions.

The deadline for a motion for new trial is jurisdictionally unforgiving in practical effect. Trial and appellate counsel should confer immediately after the verdict and review the charge, verdict, and judgment before filing post-verdict motions. Preservation should not be left to a generic form.

Checklists

Building a Subsection (E) Endangerment Record

Create a dated chronology of drug use, arrests, convictions, incarceration, treatment, relapse, and Department involvement.
Obtain admissible drug-test results, criminal judgments, jail records, medical records, and treatment records.
Identify drug use during pregnancy and develop evidence concerning the parent’s knowledge of the pregnancy.
Document prior child-welfare cases and prior terminations when admissible.
Establish whether substance abuse continued after services, warnings, treatment, or prior removals.
Connect criminal conduct to instability, absence, unsafe caregivers, or an inability to meet the child’s needs.
Develop evidence showing that the conduct was voluntary, recurring, and not merely an isolated incident.
Avoid treating incarceration alone as dispositive; prove the conduct that produced the incarceration and its consequences for the child.
Address the child’s current placement, stability, sibling relationships, and prospects for permanence.

Defending Against an Endangerment Allegation

Challenge whether the evidence establishes a course of conduct rather than a remote or isolated event.
Present verified evidence of sobriety, including frequent and consistent testing.
Document completion of inpatient or outpatient treatment and continuing aftercare.
Offer a concrete relapse-prevention plan with identified providers and support persons.
Establish safe housing, lawful employment, and separation from drug-using or criminal associates.
Present evidence of appropriate visitation and a meaningful parent-child relationship.
Explain criminal history without minimizing it and show measurable rehabilitation.
Identify a realistic caregiving plan that addresses the child’s immediate needs.
Evaluate carefully whether the parent’s Fifth Amendment invocation may leave other evidence unrebutted in the civil case.
Preserve objections to criminal records, drug evidence, expert opinions, and prior-case evidence.

Preserving Sufficiency Challenges After a Jury Trial

Match every intended appellate complaint to the exact jury question and finding.
Preserve legal-sufficiency complaints through an appropriate trial or post-verdict mechanism.
Raise every factual-sufficiency complaint in a timely motion for new trial.
Challenge each termination ground separately.
Challenge the best-interest finding separately.
Address any reasonable-efforts or other statutory finding separately.
State whether each challenged finding is unsupported by legally sufficient evidence, factually insufficient evidence, or both.
Avoid a single global statement that the entire verdict is against the weight of the evidence.
Confirm that the motion identifies the relevant statutory subsection and jury-question number.
Obtain a ruling when required and ensure that the motion and ruling appear in the clerk’s record.
Calendar all post-judgment and accelerated-appeal deadlines immediately.

Litigating Placement and Permanency Issues

Identify proposed relative caregivers at the earliest possible stage.
Request and follow up on home studies well before trial.
Investigate the proposed caregiver’s criminal, CPS, housing, and financial history.
Develop evidence concerning the caregiver’s relationship with the child.
Compare the proposed placement with the child’s current stability and sibling relationships.
Address whether changing placement would delay adoption or other permanency.
File placement and extension requests sufficiently early to permit meaningful investigation and adjudication.
Make a complete evidentiary record supporting any request to extend the dismissal deadline.
Obtain express rulings on placement, intervention, and extension motions.
Preserve offers of proof when relevant evidence is excluded.

Applying the Case in Divorce and Custody Litigation

Plead the specific conservatorship or possession restriction supported by the alleged danger.
Seek tailored temporary orders for testing, treatment, supervised possession, or safe exchanges.
Connect drug use and criminal conduct to the child’s physical safety or emotional development.
Subpoena reliable third-party records rather than relying exclusively on accusation and impeachment.
Distinguish current safety concerns from stale criminal history.
Evaluate whether community funds were spent on drugs, criminal activity, or related legal expenses.
Plead waste or fraud on the community when the evidence supports a property claim.
Avoid arguing that misconduct automatically warrants a disproportionate property division without an evidentiary nexus.
Preserve separate challenges to conservatorship, possession, support, and property findings.

Citation

In re B.C., No. 02-26-00292-CV, 2026 WL ___ (Tex. App.—Fort Worth Oct. 1, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion.

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