Section 161.001(b)(2) Best-Interest Evidence | In re D.G. (2026)

In the Interest of D.G. and D.G., children, 14-26-00344-CV, October 01, 2026.

On appeal from 306th District Court, Galveston County, Texas

Synopsis

The Fourteenth Court of Appeals held that legally and factually sufficient evidence supported the finding that termination of Mother’s parental rights was in the twins’ best interest under Texas Family Code § 161.001(b)(2). Mother’s continued cocaine use, refusal to test, incomplete treatment, unresolved domestic-violence concerns, and inability to demonstrate lasting stability—contrasted with the twins’ progress, bond, and permanence in their foster placement—permitted the trial court to form a firm belief or conviction that termination served the children’s best interest.

Relevance to Family Law

Although In re D.G. is a termination case, its evidentiary lessons extend directly to custody and modification litigation. Courts evaluate parental conduct over time, not merely a parent’s presentation at trial; consequently, substance abuse, missed testing, discontinued treatment, domestic violence, mental-health compliance, and the stability of the proposed placement can materially affect conservatorship, possession, geographic-restriction, and modification determinations. The opinion also illustrates why favorable evidence—such as appropriate visits, completion of selected services, or proof of a loving relationship—may not overcome a documented pattern of relapse and instability.

The case has less direct application to property division, but the same proof may bear on related disputes over exclusive use of the residence, temporary orders, reimbursement for child-related expenditures, and restrictions designed to protect children during a divorce. Practitioners should nevertheless distinguish the governing standards: termination requires clear and convincing evidence, while ordinary conservatorship and property issues are generally governed by different burdens and statutory considerations.

Case Summary

Fact Summary

Mother’s twins were born prematurely and tested meconium-positive for cocaine and marijuana. Both children required neonatal intensive care and exhibited symptoms consistent with neonatal abstinence, including feeding difficulties and irritability. The Department of Family and Protective Services became involved shortly after birth and removed the twins upon their discharge from the hospital.

The twins were placed together in a foster home capable of addressing their medical and developmental needs. During the case, they received early-intervention services, developed consistent routines, and made steady progress. By trial, they were bonded with their foster mother, who was willing to provide a permanent home.

The Department created a service plan addressing Mother’s substance abuse, parenting, housing, and related safety concerns. Mother completed several components, including psychological and psychiatric assessments, a parenting class, a drug-and-alcohol assessment, and an inpatient substance-abuse program. She also attended visits consistently, behaved appropriately during those visits, and maintained a loving relationship with the children.

Those positive facts did not resolve the Department’s central concerns. Mother relapsed on cocaine after completing inpatient treatment. Her last submitted Department drug test, in September 2025, was positive for cocaine, and she did not submit to requested testing during the five months preceding trial. Although she undertook another assessment and some counseling after the relapse, she had not attended substance-abuse counseling during the three months before trial. The Department also remained concerned about incomplete treatment for major depressive disorder and Mother’s continued involvement in a relationship associated with reported domestic violence.

The evidence reflected a broader history of safety concerns. Mother had previously characterized her relationship with one of the fathers as toxic and involving mental and physical abuse. The father also had a significant criminal history, and the caseworker testified that Mother had not demonstrated that she had learned from services or mitigated the reasons the children entered care.

The Department sought termination so the twins could be adopted by their foster mother. It had begun evaluating a paternal relative who expressed interest late in the case, but that potential placement remained unresolved, and the Department reported serious concerns about its suitability. The trial court terminated Mother’s rights under Texas Family Code § 161.001(b)(1)(D), (E), and (O), and found under § 161.001(b)(2) that termination was in the twins’ best interest. Mother’s appeal challenged only the best-interest finding.

Issues Decided

• Whether the evidence was legally sufficient to permit a reasonable factfinder to form a firm belief or conviction that termination of Mother’s parental rights was in the twins’ best interest under Texas Family Code § 161.001(b)(2).

• Whether the evidence was factually sufficient, considering the entire record and the disputed evidence, to support the best-interest finding.

• Whether Mother’s favorable evidence—including her completion of some services, consistent and appropriate visitation, and loving relationship with the children—rendered the best-interest finding unsustainable in light of the evidence of relapse, missed drug tests, incomplete treatment, domestic violence, and the twins’ need for permanence.

Rules Applied

Texas Family Code § 161.001(b) authorizes termination when the factfinder determines by clear and convincing evidence that the parent committed at least one statutory predicate act under § 161.001(b)(1) and that termination is in the child’s best interest under § 161.001(b)(2). “Clear and convincing evidence” is the measure of proof that produces a firm belief or conviction regarding the truth of the allegations.

The best-interest inquiry is guided by the nonexclusive factors identified in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), including:

• The child’s desires;
• The child’s present and future emotional and physical needs;
• Present and future emotional and physical danger to the child;
• The parenting abilities of the individuals seeking custody;
• Programs available to assist those individuals;
• The plans for the child;
• The stability of the proposed home or placement;
• The parent’s acts or omissions indicating that the existing parent-child relationship is improper; and
• Any excuse for those acts or omissions.

No single Holley factor is controlling, and the Department need not produce evidence on every factor. Evidence supporting the statutory predicate grounds may also be probative of best interest. A court may consider a parent’s past conduct as evidence of probable future conduct, particularly when the record shows recurring substance abuse, failure to comply with treatment, domestic violence, or an inability to maintain a safe and stable environment.

For legal sufficiency, the appellate court reviews 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 finding is true. For factual sufficiency, the court considers the entire record, including contrary evidence, and determines whether the disputed evidence is so significant that a reasonable factfinder could not have formed the required firm belief or conviction.

Application

The court evaluated the record through the Holley framework, focusing on the twins’ vulnerability, their present and future needs, the risk associated with Mother’s unresolved substance abuse, and the stability offered by their foster placement. The twins were too young to express their desires directly, but their bond with their foster mother, their consistent routines, and their progress in placement provided circumstantial evidence relevant to their needs and the suitability of the proposed permanent home.

Mother’s cocaine use was central to the analysis. The twins were exposed to cocaine and marijuana before birth, required intensive medical treatment, and experienced symptoms associated with neonatal abstinence. Mother later completed inpatient treatment, but her subsequent cocaine relapse demonstrated that participation in services had not resulted in sustained behavioral change. Her positive September 2025 test, followed by five months of missed tests, allowed the factfinder to infer continued substance abuse rather than verified sobriety.

The trial court was also entitled to consider Mother’s incomplete follow-through. Although she completed multiple assessments and a parenting class, her substance-abuse counseling had lapsed during the months immediately preceding trial. The Department’s caseworker testified that Mother had not demonstrated that she had internalized the services or corrected the conditions that led to removal. The court could therefore give greater weight to Mother’s conduct after services than to the fact that she had technically completed some service-plan components.

Domestic violence reinforced the safety concerns. The record included Mother’s prior reports of mental and physical abuse, her description of the relationship as toxic, and evidence that she remained involved with the father despite the documented history. The trial court could assess that evidence as bearing on Mother’s protective capacity and the likelihood that the twins would be exposed to future instability or danger.

The court did not disregard the favorable evidence. Mother loved the children, the children loved her, she consistently attended visits, and no problems were reported during those visits. She completed several services and had periods of engagement with counseling and treatment. But the best-interest analysis did not turn solely on affection, visitation performance, or formal service completion. The trial court was permitted to conclude that those considerations did not outweigh relapse, refusal to test, interrupted treatment, domestic-violence concerns, and the absence of demonstrated long-term stability.

Finally, the foster placement supplied evidence of a concrete path to permanence. The twins were placed together, their medical and developmental needs were being met, they were healthy and bonded with the foster mother, and she intended to adopt them. The possibility of a relative placement did not undermine the finding because the proposed relative surfaced late, had not been approved, and remained subject to serious concerns. The court therefore compared an uncertain parental or relative plan with an existing placement that was stable and prepared to provide permanency.

Holding

The Fourteenth Court held that the evidence was legally sufficient to support the best-interest finding. Viewed in the light most favorable to the judgment, the evidence of prenatal drug exposure, Mother’s cocaine relapse, her positive test and subsequent refusal to test, incomplete treatment, unresolved domestic violence, and lack of demonstrated protective capacity permitted a reasonable factfinder to form a firm belief or conviction that termination served the twins’ best interest.

The court also held that the evidence was factually sufficient. Mother’s appropriate visitation, completion of some services, and loving relationship with the children constituted relevant contrary evidence, but that evidence was not so significant that the factfinder could not reasonably reach a firm belief or conviction in favor of termination. The twins’ stability, progress, and bond in a foster home willing to provide permanency further supported the finding.

Accordingly, the court overruled Mother’s sole appellate issue and affirmed the termination order.

Practical Application

For Department litigators and guardians ad litem, In re D.G. demonstrates the importance of proving behavioral outcomes rather than merely documenting service-plan completion. A persuasive best-interest record should connect drug-test results, missed tests, treatment attendance, relapse, and domestic-violence evidence to the child’s present and future safety. Placement evidence should likewise address the child’s routines, medical and developmental progress, attachment, and permanency plan.

For parents’ counsel, the case shows the difficulty of relying primarily on favorable visits and completed services when recent conduct suggests unresolved risk. The trial record should include objective proof of sobriety, an explanation supported by evidence for any missed tests, current treatment records, testimony from providers, a credible safety plan, and evidence that the parent has ended or effectively addressed violent relationships. Counsel should not assume that proof of love and appropriate supervised contact will answer evidence of continuing danger outside the visitation setting.

In custody and modification litigation, practitioners can use the same evidentiary architecture even when termination is not requested. A party alleging substance abuse should establish a chronology of testing, treatment, relapse, noncompliance, and its effect on parenting. A party defending against those allegations should present verified recovery evidence and concrete protective measures rather than generalized assurances.

When domestic violence and substance abuse overlap, counsel should present them as interconnected questions of protective capacity. Evidence that a parent repeatedly returns to an unsafe partner may support restrictions even if the children did not personally witness every incident. Conversely, the defending parent should document separation, protective orders, counseling, safety planning, secure housing, and compliance over a meaningful period.

The opinion also underscores the strategic value of placement testimony. In termination and conservatorship disputes, evidence that a child is “doing well” is less useful than specific testimony concerning therapy, school or daycare attendance, medical care, sibling contact, routines, attachment, and the caregiver’s long-term plans. Permanency should be proved through concrete facts.

Checklists

Build a Best-Interest Record

• Organize the evidence under each applicable Holley factor.
• Identify the child’s present medical, developmental, emotional, and educational needs.
• Connect parental conduct to a specific present or future risk to the child.
• Create a complete chronology of drug tests, missed tests, treatment, relapse, and counseling attendance.
• Establish whether the parent demonstrated behavioral change after completing services.
• Develop evidence concerning domestic violence and the parent’s protective capacity.
• Prove the stability, duration, and suitability of the proposed placement.
• Address the caregiver’s willingness and ability to provide permanency.
• Include evidence of sibling relationships and plans for continued sibling contact.
• Anticipate and address favorable evidence concerning visitation, affection, and partial service compliance.

Defend Against a Best-Interest Finding

• Obtain current, objective, and continuous drug-testing records.
• Secure admissible treatment records and testimony from treatment providers.
• Explain every missed or delayed drug test with corroborating evidence.
• Show sustained sobriety over a meaningful period rather than a brief period immediately before trial.
• Demonstrate insight into the conditions that led to removal.
• Present a concrete relapse-prevention plan.
• Document stable housing, income, transportation, childcare, and medical care.
• Establish compliance with mental-health treatment and prescribed medication.
• Address domestic violence directly through separation, counseling, protective orders, or a documented safety plan.
• Present witnesses who have observed parenting outside supervised visitation.
• Explain how the parent will meet each child’s specialized needs.
• Rebut placement evidence with admissible facts, not speculation or generalized criticism.

Prepare Substance-Abuse Evidence

• Obtain the complete testing history, including the testing method and collection date.
• Confirm the governing policy concerning missed, refused, diluted, or altered tests.
• Distinguish presumptive screens from confirmed laboratory results.
• Authenticate test results and treatment records.
• Identify periods in which no objective sobriety evidence exists.
• Compare service completion dates with any later relapse.
• Examine whether the parent stopped counseling or aftercare before trial.
• Develop evidence of the effect of substance abuse on pregnancy, supervision, caregiving, and household stability.
• Prepare for explanations involving prescriptions, scheduling problems, transportation, or testing errors.
• Avoid overstating what a single positive or missed test establishes; present the entire course of conduct.

Litigate Domestic-Violence and Protective-Capacity Issues

• Gather police reports, protective orders, medical records, photographs, and prior Department records.
• Identify admissions made during psychological evaluations or counseling.
• Determine whether the parent remains in contact with the alleged abuser.
• Examine whether the children were present during violent incidents.
• Establish whether the parent has a workable safety and exit plan.
• Investigate the alleged abuser’s criminal history and substance use.
• Address minimization, recantation, and inconsistent accounts.
• Show how the relationship affects housing, supervision, emotional stability, and future danger.
• Present evidence of completed domestic-violence services and behavioral change.

Prove Placement and Permanency

• Establish the length and stability of the child’s current placement.
• Describe the child’s bond with the caregiver through specific observations.
• Document medical, therapeutic, developmental, and educational progress.
• Explain the caregiver’s daily routines and parenting abilities.
• Confirm whether the caregiver is licensed, approved, and willing to adopt or accept permanent conservatorship.
• Address the caregiver’s ability to maintain sibling and appropriate family relationships.
• Investigate proposed relative placements early.
• Complete and offer home-study evidence when placement alternatives are disputed.
• Explain why a proposed alternative is viable, uncertain, or unsuitable.
• Avoid relying solely on conclusory testimony that the placement is “good” or “stable.”

Preserve a Sufficiency Challenge for Appeal

• Identify whether the appeal challenges predicate grounds, best interest, or both.
• Request findings or otherwise ensure the basis of the judgment is clear when procedurally available.
• Make a complete record of favorable and contrary evidence.
• Preserve objections to drug tests, reports, records, and expert testimony.
• Ensure exhibits are formally admitted rather than merely discussed.
• Develop evidence addressing each relevant Holley factor.
• Challenge conclusory testimony through focused cross-examination.
• Explain why disputed evidence is significant under the clear-and-convincing standard.
• Account for evidence that a factfinder may use to infer future conduct from past conduct.
• Frame legal- and factual-sufficiency arguments under their distinct appellate standards.

Citation

In re D.G. and D.G., No. 14-26-00344-CV (Tex. App.—Houston [14th Dist.] Oct. 1, 2026, no pet. h.) (mem. op.).

Full Opinion

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