Endangerment Under Section 161.001(b)(1)(D) and (E) | In re W.S. (2026)

In the Interest of W.S., a Child, 01-26-00479-CV, October 16, 2026.

On appeal from 313th District Court, Harris County, Texas

Synopsis

The First Court of Appeals held that legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(D) and (E) based on Mother’s knowing exposure of the child to endangering conditions and her continuing course of endangering conduct. Because the evidence also supported the best-interest finding, the court affirmed the termination decree without reaching the additional predicate ground under subsection (P).

Relevance to Family Law

In re W.S. is directly relevant to termination and conservatorship litigation involving substance abuse, criminal conduct, inadequate supervision, and noncompliance with court-ordered testing. The opinion illustrates how evidence spanning both the period before removal and the parent’s conduct during litigation can establish separate grounds under subsections (D) and (E). Missed or invalid drug tests, relapse, repeated incarceration, and the inability to demonstrate sustained behavioral change may collectively carry more weight than a parent’s explanation for each individual event.

The case also informs divorce and custody practice. Although the clear-and-convincing standard governing termination is higher than the standard ordinarily applicable to conservatorship determinations, the same evidence may support temporary restrictions, supervised possession, drug-testing protocols, geographic or safety conditions, or modification of conservatorship. The opinion does not decide a property issue, but practitioners should account for the related discovery and evidentiary consequences when substance abuse or criminal activity affects financial disclosures, reimbursement claims, dissipation allegations, or the enforceability of temporary orders.

Case Summary

Fact Summary

The Department of Family and Protective Services received a referral alleging that Mother was leaving four-year-old William home alone while she used and dealt methamphetamine. Mother denied leaving the child unattended and refused the Department’s initial request for a drug test. One or two days after the investigator’s visit, police arrested Mother for burglary, leaving no available caregiver for William. The Department obtained emergency temporary managing conservatorship.

William was placed with Sarah, who was initially believed to be his paternal grandmother. DNA testing later excluded Sarah’s son as William’s father, but Sarah continued caring for William and expressed her intention to adopt him.

Mother’s service plan addressed the reported lack of supervision, illegal drug use, incarceration, and inability to provide for William’s basic needs. It required Mother to obtain safe housing, maintain contact with the Department, secure employment, participate in supervised visitation, complete parenting courses, and submit to random drug testing. The plan expressly provided that failure to appear for a drug test would be treated by the Department as a positive result.

At trial, the evidence showed a lengthy history of criminal involvement and substance abuse. Mother testified that she had been arrested nearly ten times since age seventeen. Her history included a controlled-substance case, revocation of deferred adjudication resulting in imprisonment, other arrests, and the December 2024 burglary offense to which she pleaded guilty.

Mother admitted using drugs for approximately ten years and using methamphetamine intermittently for about six years. One of her other children had tested positive for amphetamine at birth and was later adopted. Although Mother had previously completed an inpatient substance-abuse program and reported a period of sobriety, the record reflected continuing drug-related concerns.

After her release from jail in June 2025, Mother failed to appear for requested drug tests in August, September, and October. In November, her urine specimen produced an invalid substance-abuse result because of an abnormal pH, which the caseworker testified was ordinarily indicative of adulteration. Mother’s hair-follicle sample tested positive for amphetamine and methamphetamine.

Mother later admitted to the caseworker that she had relapsed. At trial, she acknowledged that her addiction issues were not under control and agreed that she had responded to disappointment by returning to drugs. At the conclusion of the second trial day, the trial court ordered her to submit to testing at the courthouse. Mother neither completed that test nor appeared when trial resumed three weeks later.

Issues Decided

The First Court of Appeals decided:

Whether legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(D) for knowingly placing or knowingly allowing William to remain in conditions or surroundings that endangered his physical or emotional well-being.
Whether legally and factually sufficient evidence supported termination under § 161.001(b)(1)(E) for engaging in conduct, or knowingly placing William with persons who engaged in conduct, that endangered his physical or emotional well-being.
Whether legally and factually sufficient evidence supported the finding that termination was in William’s best interest.
Whether the court needed to reach Mother’s challenge to subsection (P), an additional predicate ground recited in the decree.

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 is the degree of proof that produces in the factfinder’s mind a firm belief or conviction as to the truth of the allegations.

Subsection 161.001(b)(1)(D) focuses primarily on the child’s environment. It permits termination when a parent knowingly places or knowingly allows a child to remain in conditions or surroundings that endanger the child’s physical or emotional well-being. Relevant considerations include the child’s living conditions, inadequate supervision, exposure to illegal drugs, and the parent’s awareness of the dangerous environment.

Subsection 161.001(b)(1)(E) focuses primarily on the parent’s conduct. It requires a voluntary, deliberate, and conscious course of conduct that endangers the child. The conduct need not be directed at the child, and the child need not suffer an actual injury. Drug use, criminal activity, repeated incarceration, instability, and conduct that subjects a child to uncertainty may be considered collectively. The court may also consider conduct occurring before and after the child’s removal.

Legal-sufficiency review requires the appellate court to consider the evidence in the light most favorable to the finding and determine whether a reasonable factfinder could form a firm belief or conviction that the finding was true. Factual-sufficiency review considers the entire record, including disputed evidence, and asks whether contrary evidence is so significant that the factfinder could not reasonably have formed the required firm belief or conviction.

Only one statutory predicate ground is necessary to support termination when the best-interest finding is also supported. The court relied on the principle recognized in In re A.V., 113 S.W.3d 355, 362 (Tex. 2003), and In re A.M., 495 S.W.3d 573, 580 (Tex. App.—Houston [1st Dist.] 2016, pet. denied), that an appellate court need not address every additional predicate ground after affirming a sufficient ground.

Application

The court evaluated the evidence as more than a series of isolated mistakes. Before removal, the Department received allegations that Mother left a four-year-old child unattended while using or dealing methamphetamine. Mother refused the investigator’s drug-test request, and her arrest shortly afterward left William without an available caregiver. Those circumstances permitted the factfinder to assess whether Mother knowingly allowed William to remain in a dangerous environment.

Mother’s own testimony and the Department’s evidence strengthened the inference of knowledge. She admitted a decade-long history of drug use, including approximately six years of intermittent methamphetamine use. A previous child had tested positive for amphetamine at birth. Mother therefore had experience with both the dangers and potential consequences of continued substance abuse.

The evidence after removal was also probative, particularly under subsection (E). Mother missed three requested drug tests, submitted an invalid urine sample, tested positive for amphetamine and methamphetamine through hair-follicle testing, admitted a relapse, and conceded that her addiction remained uncontrolled. She then failed to comply with the trial court’s direct testing order and did not appear for the final day of trial.

The court could consider Mother’s explanations for missed testing—including transportation and employment difficulties—but was not required to accept them. The pattern of missed tests, objective positive testing, admitted relapse, and noncompliance with a direct court order permitted the trial court to find a continuing course of endangering conduct rather than a resolved historical problem.

Mother’s criminal history reinforced the instability reflected in the drug evidence. Her repeated arrests and incarceration, including the burglary arrest that precipitated William’s removal, exposed the child to uncertainty and periods when Mother could not provide care. The trial court could evaluate the combined effect of substance abuse, criminal conduct, inadequate supervision, and failure to demonstrate sustained sobriety.

For best interest, the court considered the evidence of Mother’s unresolved addiction and instability alongside William’s placement with a caregiver who had provided continuing care and intended to adopt him. The trial court was entitled to compare Mother’s uncertain ability to provide a safe and stable home with the stability available in the child’s current placement.

Holding

The First Court of Appeals held that legally and factually sufficient evidence supported the subsection (D) finding. The record allowed the trial court to form a firm belief or conviction that Mother knowingly placed or allowed William to remain in conditions or surroundings that endangered his physical or emotional well-being.

The court separately held that legally and factually sufficient evidence supported the subsection (E) finding. Mother’s ongoing drug use, missed and invalid testing, positive hair-follicle test, admitted relapse, unresolved addiction, criminal conduct, and resulting instability established a voluntary course of conduct that endangered William.

The court further held that the evidence was legally and factually sufficient to support the finding that termination was in William’s best interest. Because at least one predicate ground and the best-interest finding were supported, the court affirmed the termination decree.

The court did not reach Mother’s challenge to subsection (P). Only one predicate ground is required, and the Department conceded that it had neither pleaded nor sought termination under subsection (P).

Practical Application

For Department and child-side counsel, In re W.S. demonstrates the importance of presenting a chronology rather than treating each drug test, arrest, or service-plan violation as a disconnected event. The strongest presentation connects pre-removal danger, the parent’s knowledge, post-removal conduct, and the parent’s failure to achieve sustained change.

For parent-side counsel, the case underscores that explanations are not substitutes for objective evidence. Transportation problems, scheduling conflicts, and generalized claims of sobriety will rarely overcome repeated missed tests, an invalid specimen, a positive hair result, and an admitted relapse. Counsel should move early to establish reliable testing, documented treatment, relapse-prevention measures, stable housing, and consistent participation in visitation.

In custody and divorce cases, practitioners can use the same evidentiary structure when requesting supervised possession, sobriety conditions, or temporary restrictions. A request should identify the specific dangerous condition, establish the parent’s knowledge, connect the condition to the child’s physical or emotional welfare, and propose narrowly tailored safeguards.

The case also cautions trial counsel to scrutinize the pleadings and final decree. A termination ground that was not pleaded or tried should not appear in the judgment. Objections, motions for judgment, requests for findings, and post-judgment motions should preserve any variance between the Department’s pleadings, the proof, and the decree.

Checklists

Building a Subsection (D) Case

Identify the specific conditions or surroundings alleged to be dangerous.
Establish when the child was exposed to those conditions.
Prove the parent knew of the conditions or knowingly allowed the child to remain.
Obtain evidence concerning supervision, housing, drug activity, and available caregivers.
Connect substance abuse to the child’s environment rather than relying solely on proof of drug use.
Develop evidence of prior incidents demonstrating the parent’s knowledge of the risk.
Separate pre-removal environmental evidence from later conduct whenever possible.

Building a Subsection (E) Case

Create a dated chronology of drug use, arrests, incarceration, missed testing, and relapses.
Obtain certified criminal records when criminal conduct is part of the theory.
Authenticate laboratory reports and establish the meaning of positive, invalid, diluted, or adulterated results.
Document every testing request, notice, missed appointment, and court order.
Elicit admissions concerning the duration and frequency of substance use.
Show whether the parent completed treatment and maintained sobriety afterward.
Connect the parent’s conduct to instability, uncertainty, or loss of care for the child.
Include relevant post-removal conduct because it may demonstrate a continuing course of endangerment.

Defending a Parent Accused of Endangerment

Arrange immediate independent drug testing when allegations arise.
Do not allow missed tests to accumulate without contemporaneous documentation.
Preserve proof of transportation failures, work conflicts, medical issues, or defective notice.
Seek advance modification of testing dates rather than explaining nonappearance afterward.
Obtain complete treatment records and testimony from qualified providers.
Develop a written relapse-prevention and recovery-support plan.
Demonstrate stable housing, employment, childcare, and a sober support network.
Ensure strict compliance with every direct testing or appearance order.
Address adverse evidence candidly and present objective proof of corrective action.
Prepare the parent to explain prior arrests without minimizing established convictions.

Preserving Error and Protecting the Judgment

Compare every requested termination ground with the live pleadings.
Object to submission or rendition on an unpleaded ground.
Confirm whether any issue was tried by consent.
Request findings identifying each predicate ground and the best-interest determination.
Challenge legal and factual sufficiency separately.
Preserve complaints about admission, authentication, and interpretation of drug-testing evidence.
Verify that the final decree does not include grounds the petitioner abandoned or never pleaded.
Request review of challenged subsection (D) and (E) findings because of their potential collateral consequences.
Ensure that the appellate record contains the service plan, testing records, criminal judgments, and relevant orders.

Addressing Related Custody or Divorce Litigation

Plead specific conduct supporting requested possession restrictions.
Seek temporary drug-testing provisions with clear deadlines and consequences.
Define the testing method, laboratory, frequency, and responsibility for costs.
Provide a procedure for disputed, diluted, invalid, or missed test results.
Tie requested restrictions to the child’s safety and best interest.
Consider supervised possession, neutral exchanges, or sober third-party supervision.
Evaluate whether criminal or drug-related activity affected marital assets or compliance with financial orders.
Avoid treating a termination opinion as creating an automatic rule for ordinary conservatorship disputes.

Citation

In re W.S., No. 01-26-00479-CV (Tex. App.—Houston [1st Dist.] Oct. 16, 2026, no pet. h.) (mem. op.).

Full Opinion

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