Subsection (E) Endangerment Supports Termination | In the Interest of A.V. (2026)

In the Interest of A.V., 04-26-00125-CV, August 12, 2026.

On appeal from 37th Judicial District Court, Bexar County, Texas

Synopsis

The Fourth Court of Appeals held that legally and factually sufficient evidence supported termination under Texas Family Code section 161.001(b)(1)(E) where the record showed a voluntary, deliberate, and conscious course of endangering conduct. Repeated domestic violence, failure to complete court-ordered services, failure to submit to drug testing, and minimal visitation collectively permitted the trial court to form a firm belief or conviction that Father endangered the child’s physical or emotional well-being.

Relevance to Family Law

Although this is a termination case, its practical reach extends well beyond CPS dockets. For Texas family-law litigators handling SAPCR modifications, divorce cases involving family violence, conservatorship restrictions, geographic limits, supervised possession, or challenges to parental decision-making rights, A.V. reinforces a recurring judicial theme: a parent’s pattern of violence, noncompliance, instability, and lack of engagement is often more probative than isolated denials or last-minute explanations. The opinion is especially useful where opposing counsel attempts to compartmentalize domestic violence as “adult conflict” disconnected from the child; this court treated violence against the other parent, inconsistent services, missed testing, and weak parent-child contact as part of a single endangerment narrative.

Case Summary

Fact Summary

The Department became involved after allegations of domestic violence between the parents and drug use by Mother. The matter initially proceeded through family-based safety services with a safety plan, but when that plan was violated and no suitable safety monitor could be located, the Department sought removal and termination.

The evidence against Father centered on a continuing pattern rather than any one episode. Mother testified that Father verbally abused her during pregnancy and physically assaulted her after the child was born. She described repeated violence—punching, slapping, and pushing—and confirmed that she had sought a protective order. Although Mother did not testify that Father physically assaulted her while the child was physically present, the record still reflected a violent household dynamic and Mother’s view that any contact between Father and the child should be supervised.

The Department’s caseworker testified that Father’s service plan required parenting classes, anger management, a family violence assessment, a psychological assessment, a drug and alcohol assessment, and random drug testing. By trial, Father had not completed the drug assessment, had not submitted to drug testing, and had not followed through with therapy recommended after the psychological assessment. He was also not consistently attending his eighteen-week battering intervention and prevention program and was on the verge of unsuccessful discharge.

The visitation evidence was also damaging. Father completed only eight visits out of roughly sixty opportunities. During the first visit, the caseworker had to introduce A.V. to Father because the child did not know who he was. The Department also presented evidence that Father was difficult to engage, would say he wanted services, and then abruptly leave without discussing the case. Father did not appear for the resumed trial setting, and his counsel announced not ready based on lack of recent contact.

The placement evidence supported the stability side of the best-interest analysis. A.V. was thriving with his adult paternal half-sister, who had support from extended family, wanted to adopt him, and had provided a safe and successful environment.

Issues Decided

The court decided whether the evidence was legally and factually sufficient to support:

• termination under Texas Family Code section 161.001(b)(1)(D);
• termination under Texas Family Code section 161.001(b)(1)(E);
• termination under Texas Family Code section 161.001(b)(1)(N); and
• the trial court’s finding that termination was in the child’s best interest under section 161.001(b)(2).

As framed by the opinion and as most significant for practitioners, the core appellate question was whether the record established an endangering course of conduct under subsection (E).

Rules Applied

The court applied the familiar clear-and-convincing-evidence framework governing parental-rights termination under Texas Family Code section 161.001(b). It reiterated that legal sufficiency asks whether, viewing the evidence in the light most favorable to the finding, a reasonable factfinder could form a firm belief or conviction that the finding is true. Factual sufficiency requires consideration of the entire record, including disputed evidence, to determine whether contrary proof is so significant that the factfinder could not reasonably have reached that same firm belief or conviction.

As to substantive endangerment law, the court emphasized several established rules:

• Under Texas Family Code section 161.001(b)(1)(D), the focus is on endangering conditions or surroundings.
• Under Texas Family Code section 161.001(b)(1)(E), the focus is on the parent’s conduct.
• “Endanger” means to expose the child to loss or injury or to jeopardize the child’s physical or emotional well-being.
• Termination under subsection (E) requires more than a single act; it must rest on a voluntary, deliberate, and conscious course of conduct.
• The conduct need not be directed at the child, and the child need not suffer actual injury for conduct to qualify as endangering.
• Domestic violence may support an endangerment finding because violence in the home creates an unacceptable risk to a child’s physical and emotional well-being.

The court cited the usual high-court sufficiency authorities, including In re J.F.C. and In re J.O.A., and relied on the distinction between subsections (D) and (E) recognized in intermediate appellate precedent.

Application

The court’s analysis under subsection (E) is the practical center of the opinion. It did not treat Father’s domestic violence, service-plan failures, missed drug testing, and minimal visitation as separate silos. Instead, it viewed them as interconnected proof of an ongoing parental course of conduct that jeopardized the child’s well-being.

First, the domestic violence evidence mattered even without proof that Father physically attacked Mother in the child’s immediate presence. Mother described repeated abuse after the child’s birth, including punching, slapping, and pushing. That testimony gave the trial court a basis to find not merely relationship conflict, but repeated violent conduct by Father. In Texas termination law, that kind of violence is not collateral; it is substantive evidence of endangerment because it reflects instability, impaired judgment, and a home environment fraught with risk.

Second, Father’s noncompliance with services was not treated as a technical failure. The service plan targeted the precise concerns present in the case—violence, possible substance abuse concerns, and parenting deficits. Father failed to complete the drug assessment, failed to submit to random drug testing, failed to participate in therapy as recommended, and was not consistently attending BIPP. The court was entitled to interpret those failures as evidence that Father was either unwilling or unable to remediate the conditions that brought the Department into the case.

Third, the visitation evidence reinforced the endangerment finding because it showed a near-total failure to maintain a meaningful parental role. Father completed only eight of about sixty visits, and the child did not know him at the first visit. In termination appeals, sparse visitation often goes to best interest, but here it also helped demonstrate the broader course of conduct under subsection (E): disengagement, inconsistency, and the absence of reliable parental functioning.

Finally, the court appears to have viewed Father’s lack of engagement with the case itself—including the Department’s difficulty reaching him and his failure to appear at trial—as consistent with the larger pattern. While a missed appearance alone would not establish endangerment, it fit the evidentiary theme that Father was not taking the steps necessary to safely parent.

Holding

The court held that the evidence was legally and factually sufficient to support termination under Texas Family Code section 161.001(b)(1)(E). The record showed a voluntary, deliberate, and conscious course of conduct endangering the child’s physical or emotional well-being, based on repeated domestic violence, noncompletion of core services, failure to drug test, and minimal contact with the child.

The court also affirmed the trial court’s judgment terminating Father’s parental rights and upheld the best-interest finding. Given the child’s stable placement with an adult sibling who wanted to adopt, Father’s weak bond with the child, and Father’s persistent failure to address the Department’s concerns, the trial court could reasonably conclude that termination served the child’s best interest.

Because one predicate ground plus best interest is sufficient to affirm termination, the subsection (E) holding carried the appeal. For practitioners, that is the key doctrinal takeaway.

Practical Application

For family-law trial lawyers, A.V. is a strong reminder that course-of-conduct cases are built cumulatively. In conservatorship litigation, if you represent the parent seeking restrictions, supervised possession, or sole managing conservatorship, this case supports presenting domestic violence alongside noncompliance, missed testing, inconsistent exercise of possession, and failure to engage in remedial services as one coherent narrative of parental endangerment or instability. If you represent the accused parent, this opinion is the warning label: courts will not isolate each defect and excuse it one by one if the overall record shows recurring violence, avoidance, and disengagement.

In divorce cases involving family violence, A.V. also helps rebut the argument that abuse directed only at the other parent should not materially affect conservatorship. Texas courts continue to treat domestic violence as highly probative of the child’s emotional and physical risk, even when the violence is not directed at the child. That principle can influence temporary orders, exclusive-use rulings, injunctions, supervised access, exchange conditions, and final conservatorship findings.

In modification practice, the opinion supports a strategy of showing pattern deterioration. A parent who repeatedly fails intervention programs, avoids drug testing, misses possession periods, and remains difficult to contact may create a record that justifies tightening possession terms or modifying managing conservatorship. Conversely, a respondent-parent facing those allegations must develop a record of verified compliance, credible explanation, and actual parent-child engagement early—not on the eve of trial.

For appellate preservation purposes, the case also illustrates how difficult it is to overturn a bench-trial termination where the Department presents direct testimony on violence, service-plan noncompliance, and sparse visitation. Sufficiency review remains deferential, especially where credibility determinations favor the Department and there is no compelling contrary evidence in the record.

Checklists

Building a Subsection (E) Record for the Petitioner

• Document each act or episode of domestic violence with dates, police reports, medical records, protective-order filings, photographs, or witness testimony.
• Tie the violence to parental fitness, not merely relationship dysfunction.
• Offer the service plan into evidence and show it was court-ordered.
• Prove which services were completed, partially completed, or abandoned.
• Obtain testimony explaining why each uncompleted service matters to child safety.
• Introduce drug-testing records, no-shows, refusals, and uncompleted assessments.
• Quantify visitation opportunities versus actual attendance.
• Develop testimony about the child’s bond, recognition, and emotional response to the parent.
• Show the parent’s level of communication and engagement with the Department or court-ordered providers.
• Present evidence of the child’s current stability and the proposed permanency plan.

Defending Against an Endangerment Theory Under Subsection (E)

• Attack the “course of conduct” element by distinguishing isolated incidents from a continuing pattern.
• Offer corroborated evidence of completed services, not just verbal assurances.
• If drug testing was missed, explain why with documentation and show later compliance.
• Present affirmative evidence of consistent visitation and a meaningful parent-child relationship.
• Address domestic violence evidence directly; do not rely on bare denial where records or testimony exist.
• Introduce therapy, BIPP, anger-management, or psychological follow-up records showing measurable progress.
• Provide evidence of stable housing, employment, transportation, and communication.
• Ensure the client appears for all trial settings and remains in contact with counsel.
• If cognitive issues or injury are involved, support them with medical proof and connect them to accommodations actually requested.
• Build contrary evidence substantial enough to matter on factual-sufficiency review.

Using A.V. in Conservatorship and Modification Cases

• Cite the case when arguing that domestic violence toward the other parent remains relevant to child endangerment.
• Use the opinion to frame missed services and missed testing as substantive safety evidence, not procedural noncompliance.
• Emphasize that minimal visitation can show more than a weak bond; it can reflect broader parental disengagement.
• In requests for supervised possession, connect violence plus inconsistency to the need for structured contact.
• In modification suits, use post-decree noncompliance and recurring instability to show material and substantial change.
• Pair A.V. with best-interest evidence showing the child is thriving in a stable placement.

Avoiding the Non-Prevailing Parent’s Mistakes

• Do not let the client drift out of contact with counsel or providers.
• Do not treat a court-ordered service plan as aspirational.
• Do not ignore random drug testing or assume missed tests will be neutral.
• Do not rely on partial compliance where the uncompleted services address the core risk issues.
• Do not underestimate how damaging sporadic visitation can become in a final record.
• Do not leave domestic violence allegations unrebutted with only conclusory denials.
• Do not wait until trial to explain noncompliance that could have been documented months earlier.
• Do not permit a record to develop in which the child scarcely knows the parent.

Citation

In the Interest of A.V., No. 04-26-00125-CV, 2026 WL ___ (Tex. App.—San Antonio Aug. 12, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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