Voluntary, Deliberate Course of Conduct Supports Section 161.001(b)(1)(E) Endangerment Termination | In re M.J. (2026)

In the Interest of M.J., a Child, 07-26-00233-CV, October 07, 2026.

On appeal from 99th District Court, Lubbock County, Texas

Synopsis

The Seventh Court of Appeals affirmed termination under Texas Family Code § 161.001(b)(1)(E) because Father’s recurring domestic violence, illegal drug use, failure to submit to testing, and service-plan noncompliance established a voluntary, deliberate, and conscious course of endangering conduct. The Department was not required to prove that Father directed his conduct toward M.J. or that M.J. suffered an actual injury; the evidence also supported the jury’s best-interest finding.

Relevance to Family Law

Although In re M.J. is a parental-termination case, its treatment of family violence and substance abuse has broader significance in divorce and custody litigation. Evidence that a parent repeatedly assaulted or threatened the other parent, used methamphetamine or marijuana, avoided drug testing, or failed to address identified risks may materially affect temporary orders, conservatorship, possession, access, geographic restrictions, supervised visitation, and protective-order relief. The opinion reinforces that violence against the other parent can endanger a child even when the child is not the direct target.

In divorce litigation, the same evidence may support temporary exclusive use of the marital residence, protective conditions governing exchanges and communications, substance-abuse evaluations, and testing protocols. Family violence may also affect conservatorship presumptions and possession determinations under Chapter 153 of the Family Code. While drug use and domestic violence do not automatically determine the just-and-right division of property, the underlying conduct—and any resulting dissipation, criminal exposure, medical expense, or economic harm—may become relevant to temporary financial relief, reimbursement theories, fraud or waste allegations, and the ultimate property division.

The procedural posture also matters. Father’s attorney filed an Anders brief, but the court still independently reviewed the subsection (D) and (E) findings because those findings may carry consequences in later proceedings involving another child. Litigators should therefore treat endangerment findings as independently significant appellate issues, not merely interchangeable predicate grounds.

Case Summary

Fact Summary

M.J. was born in October 2024. The Department became involved shortly after the birth when Mother disclosed that Father had been physically violent toward her throughout the pregnancy. Mother expressed fear of Father, stated that the home was unsafe, and reported leaving the residence—sometimes for a week—to avoid the violence. Police had been called to the home on multiple occasions.

The evidence also showed illegal drug use in the household. Father used methamphetamine around Mother, and Mother sometimes used methamphetamine with him, including while she was pregnant. The couple also used marijuana. Mother believed it would be dangerous for M.J. to live in the home, and Department personnel corroborated concerns regarding both domestic violence and substance abuse.

After removal, Father admitted using drugs but did not submit to required drug testing and did not attend AA or NA meetings. He failed to comply with other portions of the Department’s service plan and maintained only limited contact with M.J. during the case. The jury also heard evidence of Father’s continuing hostility: nineteen audio recordings admitted at trial included messages in which he was verbally aggressive and confrontational toward the Department caseworker.

By contrast, M.J. was safe and thriving in foster care. At approximately eighteen months old, he was described as happy, calm, healthy, and bonded with his foster family. The placement provided a loving and stable environment.

The jury found by clear and convincing evidence that Father’s rights should be terminated under Texas Family Code § 161.001(b)(1)(D) and (E) and that termination was in M.J.’s best interest. Father appealed, and appointed counsel filed an Anders brief asserting that the record presented no nonfrivolous appellate issue.

Issues Decided

• Whether the evidence was legally sufficient to support termination under § 161.001(b)(1)(D) based on Father’s knowing placement of M.J. in, or allowance of M.J. to remain in, endangering conditions or surroundings.

• Whether the evidence was legally sufficient to support termination under § 161.001(b)(1)(E) based on Father’s voluntary, deliberate, and conscious course of endangering conduct.

• Whether subsection (E) required proof that Father’s violence or drug use was directed at M.J. or caused M.J. an actual injury.

• Whether a reasonable factfinder could determine by clear and convincing evidence that termination was in M.J.’s best interest.

• Whether the record presented any arguable ground for appellate relief despite counsel’s Anders brief.

Rules Applied

Texas Family Code § 161.001(b) requires clear and convincing evidence of at least one statutory predicate ground and a finding that termination is in the child’s best interest.

Under § 161.001(b)(1)(D), termination may be based on proof that a parent knowingly placed or knowingly allowed a child to remain in conditions or surroundings that endangered the child’s physical or emotional well-being. Subsection (D) focuses principally on the child’s environment, although parental conduct may create that environment. A single parental act or omission may be sufficient, and the relevant period generally concerns conditions before removal.

Section 161.001(b)(1)(E) focuses on the parent’s conduct, including acts, omissions, and failures to act. Unlike subsection (D), subsection (E) requires more than an isolated act. The evidence must show a voluntary, deliberate, and conscious course of conduct that endangered the child’s physical or emotional well-being. Conduct occurring both before and after removal may be considered.

Citing Texas Department of Human Services v. Boyd, the court reiterated that subsection (E) does not require proof that the parent’s conduct was directed at the child or that the child suffered an actual injury. Domestic violence and a propensity for violence may support an endangerment finding. Illegal drug use, criminal activity, failure to test, and failure to address substance-abuse concerns may likewise establish or corroborate an endangering course of conduct.

Under In re N.G., an appellate court must specifically review challenged findings under subsections (D) and (E) because such findings may have collateral consequences in a later termination case involving another child. The presence of another sufficient predicate ground does not permit an appellate court to avoid that review.

The court also applied the settled rule that only one predicate finding under § 161.001(b)(1) is necessary to support termination when the evidence also supports the child’s best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

Application

The evidence reflected substantially more than an isolated argument, a single positive drug test, or a technical service-plan violation. Mother described violence occurring “every week” during her pregnancy. She repeatedly left the residence to escape Father, police responded to the home on several occasions, and Mother expressly stated that the environment would be dangerous for M.J. That evidence permitted the jury to find both an endangering household environment under subsection (D) and a recurring course of violent conduct under subsection (E).

Father’s substance abuse reinforced those findings. He used methamphetamine around Mother, Mother joined him in using methamphetamine—including during pregnancy—and the couple also used marijuana. Father later admitted drug use but declined or failed to submit to required testing and did not participate in AA or NA. His failure to test did not isolate the Department from the drug issue; instead, it supported the broader inference that the risk remained unresolved.

Post-removal conduct further supported subsection (E). Father failed to comply with other service-plan requirements, had limited contact with M.J., and left aggressive and confrontational messages for the caseworker. Because subsection (E) permits consideration of conduct occurring after removal, the jury could evaluate whether Father used the pendency of the case to demonstrate stability and behavioral change. The record permitted the opposite conclusion.

The court did not require evidence that Father struck, threatened, or used drugs in the physical presence of M.J. Under Boyd, endangerment encompasses conduct that exposes a child to loss, instability, or jeopardy; it does not require a completed injury. Father’s repeated violence toward Mother, including during pregnancy, and the parents’ drug use created the relevant danger.

Finally, the evidence concerning the foster placement supported the best-interest finding. M.J. was healthy, secure, bonded, and thriving in a stable home. The jury could contrast that placement with Father’s unresolved violence, substance use, minimal contact, and failure to complete services.

Holding

The court held that sufficient evidence supported termination under § 161.001(b)(1)(E). Father’s recurring domestic violence, illegal drug use, refusal or failure to test, nonparticipation in recovery services, and broader service-plan noncompliance constituted a voluntary, deliberate, and conscious course of endangering conduct. The Department did not need to prove that Father’s conduct targeted M.J. or caused an actual injury.

The court also held that sufficient evidence supported termination under § 161.001(b)(1)(D). The violence and illegal drug use in the household created endangering conditions or surroundings, and the evidence showed that Father was aware of and participated in those conditions.

The court further held that a reasonable factfinder could find termination to be in M.J.’s best interest. M.J.’s safety, stability, health, and bond with the foster family stood in contrast to Father’s unresolved violence and substance abuse, limited contact, and failure to demonstrate meaningful change.

After independently reviewing the full record under Anders and specifically examining the subsection (D) and (E) findings as required by In re N.G., the court found no arguable ground for reversal and affirmed the termination order. It deferred action on counsel’s motion to withdraw because appointed counsel’s duties may continue through proceedings in the Texas Supreme Court.

Practical Application

For Department and ad litem counsel, In re M.J. supports presenting domestic violence as a course of conduct rather than as a collection of disconnected incidents. Develop the frequency, duration, escalation, police involvement, victim’s fear, efforts to flee, pregnancy-related conduct, and continuing behavior after removal. The proof should explain how violence destabilized the home and exposed the child to physical or emotional danger.

For parent’s counsel, the case demonstrates the danger of addressing each evidentiary category in isolation. Even if no single event appears dispositive, violence, drug use, missed testing, failed services, limited visitation, and hostile communications may cumulatively establish subsection (E). A defense strategy should therefore include prompt testing, documented treatment, consistent visitation, completion of services, and evidence of sustained behavioral change—not merely an argument that the child was never struck or visibly injured.

In private custody cases, counsel should distinguish termination’s clear-and-convincing standard from the standards governing conservatorship and possession. Nevertheless, the reasoning remains useful: violence toward a coparent may establish risk to the child without proof that the child was directly assaulted. That evidence may support supervised possession, neutral exchanges, communication restrictions, injunctions, drug testing, treatment conditions, or limitations designed to protect the child and the other parent.

Practitioners should also preserve and authenticate digital evidence. Voicemails, text messages, call logs, photographs, police records, body-camera footage, medical records, drug-test results, and service-provider records can transform a generalized allegation into a demonstrable pattern. Counsel should identify the applicable hearsay exception or nonhearsay purpose and secure the necessary sponsoring witnesses well before trial.

Finally, subsection (D) and (E) findings require separate appellate attention. Because those findings may later be used under § 161.001(b)(1)(M), briefing should challenge any unsupported (D) or (E) finding even when another predicate ground could sustain the existing judgment.

Checklists

Proving a Subsection (E) Course of Conduct

• Establish the frequency, duration, and escalation of domestic violence.
• Identify whether violence occurred during pregnancy or after the child’s birth.
• Obtain police reports, 911 recordings, body-camera footage, photographs, and medical records.
• Document threats, intimidation, property destruction, stalking, and coercive control.
• Authenticate text messages, emails, social-media communications, and voicemails.
• Present drug-test results, admissions, treatment records, and evidence of missed tests.
• Connect service-plan failures to unresolved risks rather than treating them as technical violations.
• Develop evidence of conduct both before and after removal.
• Explain why the conduct endangered the child even without a documented physical injury.
• Present evidence concerning the child’s current safety, stability, and emotional condition.

Defending a Parent Accused of Endangerment

• Begin immediate, consistent, and independently verifiable drug testing.
• Obtain a substance-abuse evaluation and follow all treatment recommendations.
• Complete battering-intervention, counseling, parenting, and recovery programs early.
• Maintain consistent visitation and document appropriate parent-child interactions.
• Preserve proof of stable housing, employment, transportation, and support systems.
• Comply with service-plan obligations or promptly document barriers to compliance.
• Avoid hostile communications with caseworkers, opposing parties, caregivers, and counsel.
• Use written, measured communications that can withstand admission at trial.
• Address unfavorable incidents directly and present evidence of sustained remediation.
• Do not rely solely on the argument that the child was not the direct victim.

Litigating Domestic Violence in Custody Cases

• Plead the relevant family-violence facts with sufficient specificity.
• Evaluate the conservatorship and possession restrictions available under Chapter 153.
• Determine whether a protective order, temporary restraining order, or temporary injunction is needed.
• Seek appropriate testing, treatment, supervised possession, or exchange safeguards.
• Investigate violence occurring during pregnancy and violence directed at other household members.
• Present evidence of the child’s exposure to fear, instability, police intervention, or parental absences.
• Develop a proposed possession structure tailored to the demonstrated risk.
• Separate legitimate safety restrictions from punitive or overbroad requests.
• Request express findings when necessary to preserve appellate issues.

Preserving an Endangerment Appeal

• Challenge subsection (D) and subsection (E) findings separately.
• Analyze the evidence under the clear-and-convincing standard.
• Distinguish environmental proof under subsection (D) from parental-conduct proof under subsection (E).
• Identify whether the evidence shows a course of conduct or merely an isolated incident.
• Address both pre-removal and post-removal evidence relevant to subsection (E).
• Challenge the best-interest finding independently from the predicate grounds.
• Preserve objections to digital evidence, hearsay, authentication, and expert testimony.
• Explain the future consequences of an erroneous subsection (D) or (E) finding under In re N.G.
• Calendar accelerated appellate deadlines applicable to termination cases.
• Advise appointed counsel regarding continuing duties through possible Texas Supreme Court review.

Citation

In re M.J., No. 07-26-00233-CV (Tex. App.—Amarillo Oct. 7, 2026, no pet. h.) (mem. op.).

Full Opinion

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