Section 161.001(b)(2) Best-Interest Sufficiency | In re B.E.S.D. (2026)

In the Interest of B.E.S.D. and T.D.G., Children, 11-25-00357-CV, May 21, 2026.

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

Synopsis

The Eleventh Court of Appeals held that legally and factually sufficient evidence supported the trial court’s best-interest findings under Texas Family Code Section 161.001(b)(2) as to both the mother and B.E.S.D.’s father. Persistent drug use, repeated Department history, domestic violence, instability, and failure to complete or benefit from services permitted the factfinder to form a firm conviction that termination was in the children’s best interest.

Relevance to Family Law

Although this is a termination case, its reasoning is directly relevant to Texas family-law litigation more broadly, especially SAPCR modification, conservatorship, possession, and supervised-access disputes arising in divorce or post-divorce practice. The opinion reinforces a point litigators often confront outside the CPS context: trial courts may infer future risk from past conduct, may weigh instability and untreated substance abuse heavily, and may rely on the same body of evidence both to prove endangerment-related conduct and to support a best-interest determination. For practitioners, that means evidence packets built for temporary orders, modifications, geographic restrictions, supervised possession, or sole managing conservatorship should be organized with the Holley framework in mind even when termination is not at issue.

Case Summary

Fact Summary

The record reflected a long and troubling Department history involving the mother that predated the births at issue. By the time B.E.S.D. was born in 2019, the mother had already been the subject of more than ten Department investigations, including reports involving marihuana use during prior pregnancies and around her children. Her older children had previously been removed, and they were living with other caregivers rather than with her.

When B.E.S.D. was born, both the mother and the child tested positive for marihuana. The mother admitted using marihuana during pregnancy and minimized that conduct by comparing it to smoking cigarettes or drinking alcohol while pregnant. The Department also encountered resistance from B.E.S.D.’s father, who refused to cooperate with questioning or drug testing at the hospital. Based on safety concerns in the home and the mother’s inability or unwillingness to change her behavior, the Department obtained temporary managing conservatorship of B.E.S.D.

The instability continued. The mother’s other children were later removed after their father was arrested for driving while intoxicated after smoking PCP while the children were in the vehicle. The mother participated in services at various points, and B.E.S.D. was briefly returned to her after a short period of sobriety. But the problems were not isolated or resolved. The mother described domestic violence by B.E.S.D.’s father, including physical abuse during her pregnancy and another incident in her home in the presence of the children after B.E.S.D. had been returned.

The opinion also notes that when T.D.G. was born in 2023, both T.D.G. and the mother again tested positive for marihuana. The mother admitted smoking marihuana with T.D.G.’s father before and during that pregnancy as well. In the appellate court’s view, the record showed not merely historical bad acts, but a persistent pattern of drug use, instability, unsafe relationships, and a failure to make durable changes despite extensive prior Department involvement and access to services.

Issues Decided

• Whether legally sufficient evidence supported the trial court’s finding under Texas Family Code Section 161.001(b)(2) that termination of the mother’s parental rights was in the children’s best interest.
• Whether factually sufficient evidence supported the trial court’s finding under Texas Family Code Section 161.001(b)(2) that termination of the mother’s parental rights was in the children’s best interest.
• Whether legally sufficient evidence supported the trial court’s finding under Texas Family Code Section 161.001(b)(2) that termination of B.E.S.D.’s father’s parental rights was in B.E.S.D.’s best interest.
• Whether factually sufficient evidence supported the trial court’s finding under Texas Family Code Section 161.001(b)(2) that termination of B.E.S.D.’s father’s parental rights was in B.E.S.D.’s best interest.

Rules Applied

The court applied the standard termination framework under Texas Family Code Section 161.001(b): the Department had to prove by clear and convincing evidence both a predicate ground under Section 161.001(b)(1) and that termination was in the child’s best interest under Section 161.001(b)(2). The opinion reiterates that “clear and convincing” means proof sufficient to produce in the factfinder a firm belief or conviction. See Tex. Fam. Code §§ 101.007, 161.001(b).

For appellate review, the court relied on the Supreme Court of Texas’s legal- and factual-sufficiency standards, including In re J.W., 645 S.W.3d 726 (Tex. 2022), In re A.C., 560 S.W.3d 624 (Tex. 2018), In re J.O.A., 283 S.W.3d 336 (Tex. 2009), and In re C.H., 89 S.W.3d 17 (Tex. 2002). Under legal sufficiency review, the appellate court views the evidence in the light most favorable to the finding and defers to the factfinder on credibility if a reasonable factfinder could do so. Under factual sufficiency review, the court considers disputed contrary evidence against the entire record to determine whether a firm conviction still could reasonably be formed.

On best interest, the court relied on Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), and emphasized several familiar but important propositions:

• The Holley factors are nonexclusive.
• The Department need not prove every Holley factor.
• In some circumstances, one or a few factors may suffice.
• The same evidence supporting predicate grounds may also support best interest.
• The absence of evidence on some Holley factors does not preclude affirmance.
• Factfinders may infer future danger from a parent’s past endangering conduct.

The court also cited Eastland and sister-court authority reinforcing that best interest is child-centered, not parent-centered, and that past inability to meet a child’s emotional and physical needs may support an inference of future inability.

Application

The Eleventh Court framed the case as one about pattern, persistence, and predictive risk. It did not require a tidy evidentiary showing on every Holley factor. Instead, it looked at the aggregate record and asked whether the trial court, as factfinder, could reasonably form a firm conviction that termination served the children’s best interest.

For the mother, the court focused on repeated positive drug tests at childbirth, admitted marihuana use during multiple pregnancies, prior removals, a lengthy Department history, and the continuation of unsafe conditions despite intervention. Particularly significant was the recurring nature of the conduct. This was not a one-time relapse followed by demonstrated rehabilitation; it was a pattern extending across years, pregnancies, and cases. The mother’s minimization of prenatal drug use also mattered because it allowed the factfinder to conclude that she had not internalized the risk her conduct posed to the children.

The domestic-violence evidence strengthened the best-interest finding. The record showed that the mother’s relationship with B.E.S.D.’s father involved physical abuse, including abuse during pregnancy and an incident in the home in the children’s presence after reunification. That evidence supported the danger-related Holley considerations and reinforced the trial court’s ability to infer future emotional and physical risk.

As to B.E.S.D.’s father, the court treated his conduct through the same lens. His refusal to cooperate at the hospital, his role in the endangering environment, and the trial court’s predicate findings under subsections (D), (E), and (N) could all be considered in the best-interest analysis. The appellate court underscored that the same evidence supporting endangerment and constructive abandonment may also be probative of best interest.

The court’s narrative is also a reminder about appellate posture. Because credibility determinations belong to the trial court, parents faced a difficult burden on appeal. The appellate court was required to defer to reasonable credibility choices and to assume disputed facts were resolved in favor of the judgment where the record permitted that result. On that standard, the evidence of instability, noncompliance, repeated drug exposure, and unsafe conduct was enough.

Holding

The court held that legally sufficient evidence supported the trial court’s finding that termination of the mother’s parental rights was in the best interest of the children under Section 161.001(b)(2). The mother’s persistent drug use, repeated Department involvement, history of removals, unstable and violent relationships, and failure to demonstrate sustained change permitted the trial court to form a firm belief or conviction in favor of termination.

The court likewise held that factually sufficient evidence supported the mother-related best-interest finding. Even considering any contrary evidence, including periods of participation in services or temporary sobriety, the full record still allowed a reasonable factfinder to conclude that the children faced ongoing danger and instability if returned.

As to B.E.S.D.’s father, the court held that legally and factually sufficient evidence supported the best-interest finding as well. The trial court was entitled to rely on the same evidence underlying the predicate endangerment and abandonment findings and to infer future danger from the father’s past conduct and failure to provide a safe environment.

Accordingly, the Eleventh Court affirmed the termination order.

Practical Application

For CPS trial lawyers, this opinion is a clean reaffirmation that best interest can be built from the same evidentiary foundation as predicate endangerment, provided the record tells a coherent story about risk, instability, and the parent’s inability to achieve durable behavioral change. If you represent the Department or a child, this case supports a narrative-driven presentation: repeated prenatal drug exposure, recurring unsafe relationships, prior removals, incomplete services, and minimization of misconduct are not isolated data points; together they are predictive evidence.

For parents’ counsel, the case is a warning against trying a best-interest case as though the absence of direct evidence on one or more Holley factors creates appellate insulation. It does not. If the Department has strong endangerment evidence, counsel must confront it directly with proof of sustained sobriety, documented service completion, housing and employment stability, severance from violent partners, and concrete evidence that the client has developed protective capacities. Mere assertions of improvement, especially after years of recurring conduct, are unlikely to overcome the inference that past endangerment will recur.

For non-CPS family-law litigators, the practical significance is broader than termination. In modification suits, emergency temporary-orders hearings, and managing-conservatorship disputes, courts regularly assess whether a parent’s past substance abuse, domestic violence, missed services, or repeated instability predicts future harm. This opinion gives family lawyers another appellate source for the proposition that trial courts may draw those inferences and that appellate courts will defer heavily to factfinder credibility assessments when the record is developed.

A strategic takeaway is that best-interest evidence should be organized chronologically and thematically. Chronology shows recurrence; themes show why recurrence matters. A record that demonstrates repeated drug exposure at childbirth, repeated Department intervention, repeated unsafe partners, and repeated failure to benefit from services is far more persuasive than a stack of disconnected incidents. On appeal, pattern wins.

Checklists

Building a Best-Interest Record for the Petitioner

• Tie each major fact to one or more Holley factors, especially danger, parental abilities, and stability.
• Present the parent’s history chronologically to show recurrence rather than isolated misconduct.
• Introduce evidence of prior Department investigations, removals, FBSS history, and service opportunities.
• Highlight any minimization, rationalization, or denial of substance abuse or domestic violence.
• Show not just noncompletion of services, but failure to benefit from services.
• Connect prenatal drug exposure and post-removal conduct to future-risk inferences.
• Use the same facts supporting subsections (D), (E), or (N) to reinforce best interest.
• Develop evidence of the child’s current placement stability and safety when available.

Defending Against a Best-Interest Termination Finding

• Do not rely on the absence of evidence on some Holley factors as a primary defense.
• Present documented, sustained sobriety rather than short-term abstinence.
• Offer objective proof: clean tests, certificates, counseling records, lease records, payroll records, and compliance logs.
• Address prior Department history head on instead of minimizing it.
• Show insight into the danger posed by prior conduct; acknowledgment is often critical.
• Prove separation from violent or unsafe partners with corroborating evidence.
• Demonstrate completed services and explain how the parent has changed behavior as a result.
• Present a concrete, realistic plan for safe parenting and support networks.

Preserving the Record for Appeal

• Make clear, specific legal- and factual-sufficiency arguments in the trial court when required.
• Ensure exhibits documenting drug tests, service plans, removals, and criminal or police history are admitted.
• Obtain testimony linking historical conduct to present and future danger.
• Develop contrary evidence thoroughly if representing the parent; undeveloped favorable facts will not help on appeal.
• Request findings or ensure the termination order clearly states predicate grounds and best-interest findings.
• Frame appellate arguments around the governing clear-and-convincing standards, not ordinary civil sufficiency standards.
• Anticipate deference to the trial court on credibility and tailor the appellate argument accordingly.

Using This Case in Non-CPS Family Litigation

• In conservatorship or modification cases, use the opinion to support the inference that past conduct predicts future risk.
• Build records around substance abuse, domestic violence, instability, and failure to follow court-ordered services.
• Argue that a child’s best interest is evaluated from the child’s perspective, not the parent’s preferences.
• In supervised-possession disputes, connect unsafe conduct to the need for restrictions even absent termination-level proof.
• When seeking sole managing conservatorship, emphasize protective capacity, stability, and sustained behavioral change.
• When defending, focus on rehabilitation evidence that is recent, consistent, corroborated, and durable.

Citation

In re B.E.S.D. and T.D.G., Children, No. 11-25-00357-CV, memorandum opinion (Tex. App.—Eastland May 21, 2026, no pet.).

Full Opinion

Read the full opinion here

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