Termination Under Family Code 161.001(b)(1)(E) | In re A.S.E. (2026)

In the Interest of A.S.E. a/k/a A.E., a Child, 01-26-00200-CV, August 04, 2026.

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

Synopsis

The First Court of Appeals reaffirmed that subsection 161.001(b)(1)(E) turns on a parent’s course of conduct, not a single act, and that chronic drug use, repeated missed drug tests, criminal conduct, failed services, and safety-plan violations can collectively constitute legally and factually sufficient evidence of endangerment. For trial lawyers, the opinion is a strong reminder that instability, relapse patterns, and noncompliance over time remain highly persuasive endangerment evidence even where the parent shows some late-stage improvement.

Relevance to Family Law

Although this is a termination case, its reasoning reaches well beyond CPS litigation. Texas family lawyers handling SAPCR modifications, conservatorship disputes, geographic restrictions, supervised-possession fights, and protective-order-adjacent custody litigation should read this opinion as a roadmap for how appellate courts evaluate instability evidence: ongoing substance abuse, missed testing, criminal exposure, domestic volatility, and disregard of court-imposed safety structures are not isolated “bad facts,” but part of a legally meaningful pattern. In divorce and custody litigation, that same pattern can support restrictions on possession, denial of expanded access, limits on joint decision-making, or appointment arguments centered on the child’s need for consistency and safety.

Case Summary

Fact Summary

The case began with a familiar but potent fact: the child, A.S.E., tested positive for amphetamines at birth in February 2023, and both parents also tested positive around that time. The Department responded with Family Based Safety Services rather than immediate removal. Under the FBSS plan, the child remained with the parents, but paternal grandmother served as safety monitor, and both parents were required to complete services, including parenting classes, assessments, and random drug testing.

Father’s subsequent history became the backbone of the endangerment case. He completed neither parenting classes nor a psychosocial evaluation. While he initially passed several urine tests, he later tested positive for amphetamines and methamphetamines on urine testing and for amphetamines, methamphetamines, and marijuana on hair testing. More importantly, from late July through December 2023, he failed to appear for any tests and was deemed positive. His participation in treatment was poor enough that he was unsuccessfully discharged, with a recommendation for more intensive treatment, including residential care.

The instability did not stop with drug use. During the safety-plan period, Mother twice left Grandmother’s home with the child in violation of the safety plan. Father was charged with theft in November 2023. After the Department obtained a court order requiring services in January 2024, Father still delayed assessment for intensive treatment, failed to comply with recommendations, and continued missing tests. In May 2024, his hair test again showed amphetamines, methamphetamines, and marijuana, at levels higher than before.

The Department also developed evidence that Father and Mother were living with the child away from Grandmother, again violating the safety plan. In August 2024, they were once more alone with the child without the safety monitor present. Father then pled guilty to theft, was charged with evading arrest, and was later convicted of that offense. In October 2024, he was charged with possession of methamphetamine. Around that same period, Mother, in violation of the safety plan, retrieved Father from jail with the child, and during the drive home Father assaulted Mother by placing his hands around her neck.

The Department filed for termination in October 2024. Even after suit was filed, Father’s record remained mixed at best. He produced some negative urine tests, but his hair tests in late 2024 and spring 2025 remained positive, with increasing concentrations at points in the record, and he continued to miss scheduled tests. He re-entered substance-abuse therapy in March 2025, only to be unsuccessfully discharged again by June for missed sessions, with another inpatient recommendation. He still did not complete a psychological assessment, did not provide proof of completing parenting classes, lacked verified employment, and continued to encounter criminal trouble, including 2025 charges for driving with a suspended license, no insurance, evading arrest, and theft.

At trial, Father testified that he had changed, had been sober for six months, and was trying to obtain inpatient treatment. The Department caseworker acknowledged some sincerity and some recent clean urine tests but emphasized that Father had still not demonstrated sustained sobriety, stability, or the ability to safely parent over the child’s entire life. The evidence also showed continued contact with Mother despite a protective order. The child advocate testified that the child was thriving in placement with maternal relatives who wished to adopt her. The trial court terminated Father’s rights under subsections (E) and (O), and Father appealed.

Issues Decided

• Whether legally and factually sufficient evidence supported termination under Texas Family Code section 161.001(b)(1)(E) based on a voluntary, deliberate, and conscious course of conduct that endangered the child’s physical or emotional well-being.
• Whether persistent drug use, repeated missed drug tests, failure to complete services, ongoing criminal conduct, incarceration, and violations of a safety plan were sufficient evidence of endangerment under subsection (E).
• Whether the evidence was sufficient to support the trial court’s best-interest finding, although the appellate court’s reasoning necessarily rested on many of the same facts that supported the predicate ground.

Rules Applied

The court applied the familiar termination framework under Texas Family Code section 161.001(b): the Department must prove by clear and convincing evidence both a predicate ground and that termination is in the child’s best interest. The opinion also invoked the statutory definition of “clear and convincing evidence” in Family Code section 101.007 and the heightened legal- and factual-sufficiency standards governing parental-rights termination review.

As to subsection (E), the controlling rule is that endangerment may be shown through a parent’s voluntary, deliberate, and conscious course of conduct. The conduct need not be directed at the child, and the child need not actually suffer injury. Instead, the inquiry focuses on whether the parent’s behavior exposes the child to loss, injury, jeopardy, uncertainty, or instability. Texas authorities repeatedly recognize that a parent’s drug use, especially when persistent and accompanied by relapse, missed testing, treatment failure, or criminal conduct, can support an endangerment finding because it creates an environment of instability and impaired parental judgment.

The court’s analysis is also consistent with settled Texas law treating missed drug tests as probative, particularly where the parent has a history of positive tests or noncompliance. Likewise, a parent’s criminal conduct, repeated incarceration, and failure to comply with service plans are relevant because they bear directly on the parent’s ability to provide a safe and stable environment. Safety-plan violations matter for the same reason: they show disregard for protective measures put in place to shield the child from risk.

Application

The appellate court viewed Father’s history not as a series of disconnected setbacks, but as a sustained pattern of instability from the child’s birth through trial. The child’s positive drug test at birth and Father’s own contemporaneous positive tests gave the Department an initial endangerment narrative anchored in prenatal and immediate postnatal risk. But the court did not stop there. It emphasized what happened after the Department intervened and afforded Father an opportunity to stabilize while the child remained in family care.

That post-intervention conduct was decisive. Father did not simply struggle with addiction in the abstract; he repeatedly tested positive, repeatedly failed to appear for testing, and repeatedly failed treatment. The missed tests carried particular weight because they occurred against a backdrop of confirmed positive results and recommendations for more intensive care. The record therefore permitted the trial court to treat the missed tests as more than administrative noncompliance—they were part of the larger evidentiary pattern showing unresolved substance abuse.

The same was true of services. Father’s failure to complete parenting classes, psychosocial and psychological components, and treatment recommendations did not establish endangerment by themselves. But in context, they showed inability or unwillingness to remedy the exact conditions that had triggered Department involvement. The court also considered Father’s criminal history and repeated incarcerations as reinforcing the instability analysis. Theft, evading arrest, drug possession, and related jail time deprived the child of consistency and demonstrated ongoing poor judgment.

The safety-plan violations were especially important because they undermined the parents’ argument that risk had been controlled through Grandmother’s supervision. The Department had left the child in a structured arrangement with a designated safety monitor; the evidence showed that Father and Mother repeatedly operated outside that structure. That made the danger concrete rather than hypothetical. The domestic violence incident after Father’s release from jail further illustrated the volatility surrounding the parents’ relationship and the child’s environment.

Father’s best evidence was his late improvement: some negative urine screens, trial attendance, testimony about sobriety, and efforts to enter inpatient treatment. But the court accepted that the factfinder was entitled to weigh those developments against the much longer and more consistent history of drug use, missed tests, failed treatment, criminal conduct, and instability. In other words, late compliance did not erase a multi-year course of endangering conduct.

Holding

The court held that legally and factually sufficient evidence supported termination under Family Code section 161.001(b)(1)(E). A parent’s voluntary, deliberate, and conscious course of conduct that subjects a child to uncertainty and instability is enough to establish endangerment, and this record contained such a course of conduct. Father’s persistent drug use, repeated failures to submit to drug testing, inability to complete treatment, criminal behavior, incarcerations, and safety-plan violations collectively supported the endangerment finding.

The court also upheld the best-interest determination. Although Father pointed to some recent progress, the trial court was entitled to conclude that his late-stage improvement did not outweigh the child’s need for permanence and safety, especially where the child was thriving in a stable placement with relatives who wanted to adopt. The appellate court therefore affirmed the termination order.

Practical Application

For Department-side and amicus practitioners, this opinion is a useful appellate template for building an (E) case around chronology. The strongest cases are often not the ones with the single most dramatic event, but the ones where counsel can show persistent instability from referral through trial. That means organizing proof around recurring themes: positive tests, missed tests, treatment failures, service-plan noncompliance, criminal charges and convictions, incarceration periods, protective-order facts, and safety-plan breaches. This case underscores that when those themes repeat over time, they become a persuasive “course of conduct” record on appeal.

For parent-side counsel, the opinion is equally instructive and cautionary. If the case theory is rehabilitation, improvement must begin early, be documented, and be sustained long enough to blunt the Department’s chronology. Trial lawyers should assume that missed tests will be argued as positive, that “trying to get into treatment” will be discounted if unsupported, and that partial compliance will not overcome ongoing criminal conduct or unstable associations. If the parent remains involved with a co-parent who is part of the danger narrative, counsel needs credible proof of separation, boundaries, and changed circumstances.

In private family-law cases, this reasoning translates directly into conservatorship and possession disputes. A litigant seeking restrictions should think in patterns, not anecdotes. Evidence that a parent uses drugs, misses court-ordered testing, ignores injunctions or temporary orders, cycles in and out of jail, or exposes the child to domestic conflict can be marshaled to support supervised possession, denial of expanded access, or modification based on material and substantial change. Conversely, the parent defending access needs a record of verified sobriety, treatment completion, employment or housing stability, and strict compliance with court-imposed conditions.

Practitioners should also note the evidentiary value of safety structures. When a case includes a monitored return, supervised access, agreed injunctions, or third-party exchange protocols, later violations are often more compelling than generalized accusations because they show disregard of a specific, known protective measure. That is one of the quiet but important lessons of this opinion.

Checklists

Building an Endangerment Record Under Subsection (E)

• Create a dated chronology beginning with the first Department or court intervention.
• Tie each positive drug test to a corresponding time period, service requirement, or parenting event.
• Document every missed drug test and make the record clear as to agency policy or court treatment of missed tests.
• Introduce treatment recommendations, discharge summaries, and noncompletion records.
• Establish all criminal charges, pleas, convictions, incarcerations, and release dates.
• Prove how the parent’s conduct produced instability, uncertainty, or unsafe caregiving conditions for the child.
• Highlight violations of safety plans, temporary orders, protective orders, or supervised-access conditions.
• Use witness testimony to connect conduct to parenting capacity, not merely to moral blame.

Defending Against an (E) Ground

• Begin treatment immediately and obtain admissible documentation of enrollment, attendance, and completion.
• Produce consistent negative urine and hair testing over a meaningful period.
• Do not miss scheduled tests; if a test is missed, document the reason contemporaneously.
• Complete every ordered or recommended service, including parenting, psychological, psychosocial, and substance-abuse components.
• Verify employment, housing, and transportation with records, not just testimony.
• Demonstrate separation from unsafe relationships through objective evidence.
• Address criminal cases proactively and be prepared to explain dispositions and compliance.
• Avoid relying exclusively on recent improvement if the historical record is poor; instead, frame a sustained change narrative supported by documents and third-party witnesses.

Trial Presentation for Department or Amicus Counsel

• Present the case in phases: initial intervention, FBSS or pre-removal conduct, post-order conduct, post-filing conduct, and trial status.
• Use hair-test trends and missed-test sequences to show recurrence rather than isolated relapse.
• Pair service noncompliance with expert or caseworker testimony explaining why each missing component mattered to child safety.
• Develop testimony on how incarceration and criminal activity impair continuity of care.
• Do not overlook evidence of domestic volatility, even if not pleaded as a separate predicate ground.
• Show the child’s current placement stability and improvement to reinforce best interest.
• Anticipate the parent’s “late turnaround” defense and address why it is too little, too late.

Trial Preparation for Parent’s Counsel

• Audit the file early for all positive tests, missed tests, discharge summaries, and criminal records.
• Cure documentary gaps before trial, including certificates, assessments, and treatment confirmations.
• Prepare the client to address prior relapses directly and credibly rather than minimizing them.
• Obtain corroborating witnesses who can speak to current sobriety, routine, housing, and support systems.
• Be ready to distinguish past conduct from present capacity with objective evidence.
• If there has been a protective order or volatile co-parent relationship, present concrete proof of changed boundaries.
• Avoid unsupported claims such as “I work odd jobs” or “I am trying to get into treatment” without records.
• Consider whether a continuance request is realistically supported by diligence and documentary proof.

Using the Case in Private Custody Litigation

• Frame dangerous conduct as a pattern affecting the child’s stability, not merely as character evidence.
• Gather drug-test history, law-enforcement contacts, and violations of temporary orders or injunctions.
• Use third-party testimony from supervisors, relatives, counselors, or exchange monitors.
• Show the nexus between the parent’s conduct and the child’s uncertainty, missed routines, or exposure to conflict.
• Request targeted relief tied to the risk shown: supervised possession, testing protocols, counseling, exchange restrictions, or geographic limitations.
• If defending, counter with verified treatment completion, stable residence, regular employment, and sustained compliance.

Citation

In the Interest of A.S.E. a/k/a A.E., a Child, No. 01-26-00200-CV (Tex. App.—Houston [1st Dist.] Aug. 4, 2026, mem. op.).

Full Opinion

Read the full opinion here

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