Recent Sobriety and Completion of Services May Not Overcome Section 161.001(b)(2) Best-Interest Evidence | In re E.J. (2026)

In the Interest of E.J., a Child, 11-26-00077-CV, October 08, 2026.

On appeal from 326th District Court, Taylor County, Texas

Synopsis

The Eleventh Court of Appeals held that clear and convincing evidence supported the trial court’s finding that termination was in E.J.’s best interest under Texas Family Code § 161.001(b)(2). The mother’s recent sobriety and substantial completion of services did not overcome her recurring methamphetamine use, inconsistent visitation, unstable housing and employment, and the child’s established bond with a long-term foster family prepared to adopt him.

Relevance to Family Law

In re E.J. is directly relevant to termination and conservatorship litigation because it illustrates the difference between technical compliance with a service plan and proof of sustained parental stability. A parent may complete classes, attend counseling, and produce several months of negative drug tests, yet still face an adverse best-interest finding when the broader history demonstrates relapse, interrupted contact, unstable housing, uncertain employment, and an inability to offer the child permanence.

The opinion also has practical significance in custody disputes arising from divorce or suits affecting the parent-child relationship. Although ordinary conservatorship cases do not apply the termination standard, recurring substance abuse, missed possession periods, unstable living arrangements, exposure to family violence, and prolonged disengagement remain highly relevant to conservatorship, possession, geographic restrictions, supervised visitation, and protective conditions. For property litigation, employment and housing evidence may corroborate or undermine credibility regarding income, expenditures, reimbursement claims, and financial stability, but practitioners should avoid treating poverty alone as parental unfitness. The material inquiry is how instability affects the child and the reliability of the parent’s proposed plan.

Case Summary

Fact Summary

The Department began investigating after E.J.’s umbilical cord blood tested positive for cannabinoids. At the time of removal, the mother admitted using methamphetamine postpartum and tested positive for amphetamine and methamphetamine. E.J. also tested positive for a marihuana metabolite and methamphetamine. Because the mother could not identify an appropriate relative or fictive-kin placement, E.J. entered foster care at approximately two months of age.

The trial court ordered the mother to comply with a family service plan that included random drug testing, counseling, parenting education, visitation, stable employment, and safe, stable, drug-free housing. She completed parenting classes and a psychological evaluation and entered substance-abuse treatment. Her progress, however, was interrupted by missed drug tests, inconsistent counseling, inappropriate housing arrangements, and additional methamphetamine use. She admitted relapsing in November 2024, tested positive for methamphetamine in December 2024 and February 2025, and then returned to treatment.

After further proceedings, the mother moved to San Antonio and temporarily ceased communicating with her case manager. She later entered Rise Discipleship, a Christian-based sober-living program. By the final hearing, she had substantially completed her service plan, was participating in programming and counseling, and had tested negative for approximately three months. Her claimed work through the program provided room and board, but the Department had not verified conventional employment after September 2024. The program could house her for up to two years, although no resident had previously had a child placed with her there.

The Department remained concerned about the mother’s long-term ability to maintain sobriety and stability outside a structured environment. She had attended only approximately 40% of her weekly visits with E.J. and had periods of limited or no communication with the Department. Meanwhile, E.J. had lived with the same foster family for approximately twenty months, had become integrated into that family, was developmentally healthy, and had no need for additional services. The foster family intended to adopt him, and the guardian ad litem supported termination and continued placement in the foster home.

The trial court found predicate grounds for termination under Texas Family Code § 161.001(b)(1)(D) and (E). The mother did not challenge those predicate findings on appeal. She instead challenged the sufficiency of the evidence supporting the best-interest finding and the trial court’s findings concerning the Department’s reunification efforts and the continuing danger preventing E.J.’s return.

Issues Decided

1. Whether legally and factually sufficient evidence supported a firm belief or conviction that termination of the mother’s parental rights was in E.J.’s best interest under Texas Family Code § 161.001(b)(2).

2. Whether the evidence supported the trial court’s findings that the Department made reasonable efforts to return E.J. to the mother before the final hearing and that a continuing danger in the home prevented his return under Texas Family Code § 161.001(f) and (g).

Rules Applied

Texas Family Code § 161.001(b) requires clear and convincing evidence of both a statutory predicate ground and that termination is in the child’s best interest. “Clear and convincing evidence” means proof sufficient to produce in the factfinder’s mind a firm belief or conviction regarding the truth of the allegations. Tex. Fam. Code § 101.007.

The mother did not challenge the findings under § 161.001(b)(1)(D) and (E), which addressed endangering conditions and endangering conduct. Consequently, the principal disputed termination element was best interest under § 161.001(b)(2).

The court applied the nonexclusive factors from Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976), including:

• The child’s desires;
• The child’s present and future emotional and physical needs;
• Present and future emotional or 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 placements;
• 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. The analysis remains child-centered and may consider both direct and circumstantial evidence, the parent’s past conduct, and reasonable inferences about future behavior.

For legal sufficiency, the reviewing court asks whether a reasonable factfinder could have formed a firm belief or conviction that the challenged finding was true. The court views the evidence in the light most favorable to the finding, respects reasonable credibility determinations, and does not disregard undisputed evidence contrary to the finding. See In re J.W., 645 S.W.3d 726, 741 (Tex. 2022); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

For factual sufficiency, the reviewing court weighs disputed evidence contrary to the finding against all evidence favoring it and determines whether the entire record permitted the factfinder reasonably to form the required firm belief or conviction. See In re A.C., 560 S.W.3d 624, 631 (Tex. 2018); In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002).

The court also emphasized that best interest is a broad, fact-intensive determination committed substantially to the factfinder’s discretion. The trial judge, as factfinder, remained the sole judge of witness credibility and demeanor. See In re Lee, 411 S.W.3d 445, 460 (Tex. 2013); In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021).

Application

The appellate court evaluated the mother’s recent progress in the context of the entire case rather than treating service-plan completion as dispositive. Her negative drug tests, counseling attendance, participation in sober living, and substantial completion of services were favorable evidence. The trial court nevertheless was entitled to assess whether that progress demonstrated durable change, particularly because it occurred late in the litigation and within a highly structured environment.

The record contained a recurring pattern of methamphetamine use and relapse. The mother used methamphetamine after E.J.’s birth, missed required testing for several months, admitted renewed use, and later tested positive twice. Her history permitted the trial court to infer that the risk to E.J. had not been eliminated merely because she had maintained sobriety for several months immediately before trial. The trial court could also consider that the mother had not yet demonstrated an ability to maintain sobriety while independently managing housing, employment, and daily parenting responsibilities.

The mother’s visitation history independently affected the best-interest analysis. Attendance at only approximately 40% of available weekly visits limited the development of the parent-child relationship and demonstrated inconsistency in meeting E.J.’s emotional needs. Her move to San Antonio and extended failure to respond to the case manager further supported concern about reliability and engagement.

Housing and employment evidence also weighed against reunification. The mother’s sober-living program offered structure and room and board, but the proposed arrangement had not previously accommodated a resident with a child. Her employment outside the program had not been verified for an extended period. The factfinder therefore could view her proposed plan as uncertain rather than as an established, child-ready placement.

In contrast, E.J. had spent nearly his entire life in the same foster home. He was bonded with the foster family, had become part of their household, was developmentally healthy, and had prospects for adoption. The foster family presented a concrete and permanent plan, while the mother’s plan depended on continued progress in a setting that had not been tested as a placement for E.J. The guardian ad litem’s recommendation further supported the conclusion that permanence with the foster family served the child’s best interest.

The appellate court deferred to the trial court’s resolution of the competing evidence. The issue was not whether the mother had made meaningful progress; she had. The dispositive question was whether the record, considered as a whole, allowed the trial court to form a firm belief or conviction that termination served E.J.’s best interest. Her relapse history, limited visitation, instability, and uncertain parenting plan, measured against E.J.’s stable and adoptive placement, satisfied that standard.

Holding

The Eleventh Court held that the evidence was legally and factually sufficient to support the best-interest finding under Texas Family Code § 161.001(b)(2). The mother’s recent sobriety and service-plan compliance did not require reversal because the trial court could weigh those improvements against her recurring methamphetamine use, inconsistent visitation, unstable housing and employment, and failure to demonstrate sustained independent stability.

The court also upheld the trial court’s findings concerning the Department’s reasonable efforts to return E.J. and the continuing danger that prevented return. The court therefore overruled the mother’s appellate challenges and affirmed the order terminating her parental rights.

Practical Application

Termination counsel should treat In re E.J. as a reminder that a best-interest case is built on trajectories, not snapshots. For the Department or another party seeking termination, proof should establish the chronology of substance use, testing, treatment, relapse, visitation, housing, employment, and communication. The persuasive force comes from connecting that history to the child’s present and future need for safety and permanence.

For a parent opposing termination, checking service-plan boxes is not enough. Counsel should present evidence that improvement is sustained, independently verifiable, and transferable outside a controlled program. A parent relying on recent sobriety should be prepared to explain prior relapses, establish a meaningful relapse-prevention plan, document consistent testing, and show how housing, childcare, transportation, employment, and treatment will function if the child is returned.

Visitation evidence should receive the same attention as drug-testing evidence. Attendance records, cancellations, transportation barriers, Department scheduling issues, and the quality of parent-child interactions can materially affect the best-interest analysis. If missed visits resulted from circumstances beyond the parent’s control, counsel must develop that explanation through documents and third-party testimony rather than rely solely on the parent’s account.

In divorce and nontermination custody cases, the opinion supports a similar strategic approach. A litigant alleging that the other parent’s substance abuse or instability warrants supervised possession should offer a dated evidentiary record and explain the impact on the child. Conversely, the responding parent should demonstrate sustained behavioral change and propose specific safeguards, such as testing, treatment, sober monitors, supervised possession, or a step-up schedule. The court should not be asked merely to choose between labels such as “recovered” and “addicted”; it should be given evidence from which to assess risk over time.

Practitioners should also distinguish economic hardship from legally significant instability. Lack of wealth is not endangerment and should not become a proxy for parental fitness. The relevant evidence is whether the parent can provide a safe, reliable, and workable plan for the child and whether claimed housing and employment arrangements are verified and durable.

Checklists

Building a Best-Interest Record

• Create a dated chronology of removal, testing, treatment, relapse, visitation, housing, employment, and communication.
• Match each material fact to one or more Holley factors.
• Identify evidence addressing the child’s present and future emotional and physical needs.
• Connect substance use and instability to a specific risk to the child.
• Document the child’s bond with each proposed caregiver.
• Develop evidence concerning the permanency and feasibility of every proposed placement.
• Obtain testimony about the child’s developmental, medical, educational, and therapeutic status.
• Preserve the guardian ad litem’s or attorney ad litem’s recommendation and its factual basis.
• Address favorable and unfavorable evidence rather than presenting a one-sided chronology.
• Request sufficiently specific findings when necessary to preserve and frame appellate issues.

Proving Sustained Parental Rehabilitation

• Obtain complete drug-testing records, including negative, positive, missed, and refused tests.
• Present testimony from treatment providers with personal knowledge of participation and prognosis.
• Establish the duration of sobriety and whether it has continued outside a structured environment.
• Introduce a written relapse-prevention and aftercare plan.
• Verify employment through payroll records, employer testimony, schedules, or tax documentation.
• Verify housing through a lease, inspection, photographs, and testimony from the property owner or program director.
• Show that the proposed residence permits the child to live there.
• Document transportation, childcare, medical care, and school arrangements.
• Demonstrate consistent visitation and appropriate parenting during visits.
• Explain every material lapse, missed test, missed visit, or interruption in communication with corroborating evidence.

Litigating Visitation Evidence

• Obtain the complete visitation log rather than relying on an approximate attendance percentage.
• Separate parent cancellations from Department, foster-parent, weather, transportation, or provider cancellations.
• Document whether makeup visits were requested and offered.
• Identify the reasons for missed visits and corroborate them through records or third-party witnesses.
• Present evidence about the quality and duration of completed visits.
• Establish whether the parent arrived on time and prepared with food, clothing, or age-appropriate activities.
• Address the child’s behavior before, during, and after visits through qualified witnesses.
• Preserve communications concerning scheduling disputes.
• Show whether visitation increased, decreased, or remained unchanged as the case progressed.

Evaluating a Sober-Living or Residential Placement

• Confirm whether the facility permits children to reside with participants.
• Determine whether the facility has previously accommodated a parent and child.
• Obtain written rules concerning visitors, curfews, medication, testing, discipline, and discharge.
• Identify what happens to housing if the parent relapses or leaves the program.
• Inspect the proposed sleeping arrangements and common areas.
• Verify the duration of available housing.
• Determine whether the parent’s work for room and board constitutes stable employment or merely program participation.
• Identify available childcare and transportation.
• Confirm access to pediatric, educational, and therapeutic services.
• Develop a transition plan for independent housing after program completion.

Defending Against a Late-Improvement Argument

• Acknowledge genuine progress rather than overstating the negative record.
• Compare the duration of improvement with the duration and severity of prior instability.
• Determine whether improvement occurred only after trial was imminent.
• Examine whether sobriety has been maintained outside a controlled setting.
• Test the feasibility of the parent’s proposed housing and employment arrangements.
• Distinguish completion of services from demonstrated behavioral change.
• Develop evidence about the child’s timeframe and need for permanence.
• Explain why additional delay would or would not serve the child’s interests.
• Address less restrictive alternatives and why they would or would not adequately protect the child.

Preserving a Sufficiency Challenge

• Confirm that the reporter’s record contains every relevant hearing and exhibit.
• Object to unsupported summaries when the underlying records are available.
• Preserve exclusions of favorable evidence through an offer of proof.
• Obtain rulings on objections and requested findings.
• Identify undisputed facts contrary to the challenged finding.
• Separate legal-sufficiency arguments from factual-sufficiency arguments.
• Analyze the entire record under the clear-and-convincing standard.
• Challenge each necessary statutory finding that has a reasonable appellate basis.
• Avoid leaving predicate findings unchallenged unless doing so is a deliberate strategic decision.
• Calendar the accelerated appellate deadlines applicable to termination cases.

Citation

In re E.J., No. 11-26-00077-CV (Tex. App.—Eastland Oct. 8, 2026, no pet. h.) (mem. op.).

Full Opinion

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