Predicate Ground (E) Endangerment by Drug Use | In re W.W.-R. (2026)

In the Interest of W.W.-R., a Child, 01-26-00242-CV, August 18, 2026.

On appeal from 306th District Court, Galveston County, Texas

Synopsis

The First Court of Appeals held that legally and factually sufficient evidence supported termination under Texas Family Code section 161.001(b)(1)(E) where the mother engaged in a sustained pattern of drug use before and after the child’s birth, continued testing positive throughout the case, and could not provide or identify a safe placement for the child. The court further held that the same evidence of chronic substance abuse, instability, incarceration, and lack of safe alternative care supported the trial court’s best-interest finding.

Relevance to Family Law

Although this is a termination case, its practical significance extends well beyond CPS litigation. For Texas family-law litigators handling SAPCRs, modification suits, conservatorship disputes, geographic restriction fights, and possession challenges, In re W.W.-R. is a strong reminder that a parent’s repeated drug use, failed sobriety efforts, incarceration, and inability to present a safe caregiving plan can be framed not as isolated bad acts, but as a continuing course of conduct bearing directly on endangerment, parental judgment, and best interest. In private custody litigation, the case supplies useful appellate language for arguing that ongoing substance abuse and instability are probative of present and future risk to the child, while for the responding parent it underscores the need to build a documented record of sustained sobriety, treatment compliance, housing stability, and a workable child-care plan.

Case Summary

Fact Summary

The Department became involved when the child, W.W.-R., was born in September 2024 with meconium positive for marijuana, and Mother also tested positive for marijuana at delivery. The Department initially attempted to avoid removal through family-based safety services, requiring Mother to complete evaluations, counseling, substance-abuse services, and drug testing. Although Mother engaged to some extent, she continued to test positive for controlled substances, including marijuana, cocaine, methamphetamine, PCP, and benzodiazepines.

The placement history mattered. The Department tried multiple alternatives before suit. The child was first placed in foster care, then with one caregiver, then moved at Mother’s request, then placed with another proposed caregiver under a power of attorney. That placement failed after the proposed caregiver did not pass the Department’s background review and was deemed inappropriate based on allegations of drug activity and a positive drug test. According to the Department, Mother stated she could not care for the child herself, and no suitable relative or alternative placement passed screening.

The evidence also showed a long-standing substance-abuse history. Mother reported beginning Xanax use in early adolescence, marijuana use in her mid-teens, cocaine use at nineteen, and opiate use in her twenties. She acknowledged daily marijuana use during 2024, including while pregnant. During the case, she repeatedly tested positive. The opinion specifically notes positive tests in September and October 2024 for cocaine, marijuana, and methamphetamine; a June 2025 PCP-positive result; July and September 2025 positives for cocaine and marijuana; multiple October 2025 positives for marijuana and benzodiazepines; and a hospital cocaine-positive test associated with an apparent overdose event. The caseworker also testified that Mother admitted PCP and marijuana use, and that a test was ordered after Mother appeared impaired during a visit, which returned positive for alcohol. By the court’s count, after the case was filed, Mother tested positive on seven of eight Department-administered tests.

There was more than drug use. Mother’s criminal history included misdemeanor failure to identify, a federal human-trafficking conviction resulting in imprisonment and supervised release, a felony theft conviction, and a January 2026 return to federal custody while this case was pending. Her supervised-release conditions required sobriety and treatment, which sharpened the significance of her continued use. The record also reflected prior Department history involving other children, including at least one prior termination tied to her drug use, and evidence of mental-health issues. Mother did not testify at trial and offered no affirmative evidence to counter the Department’s proof.

Issues Decided

• Whether clear and convincing evidence legally and factually supported termination under Texas Family Code section 161.001(b)(1)(E) based on Mother’s course of conduct.
• Whether legally and factually sufficient evidence supported the trial court’s finding that termination was in the child’s best interest under Texas Family Code section 161.001(b)(2).

Rules Applied

Termination requires clear and convincing evidence of both a predicate ground under Texas Family Code section 161.001(b)(1) and best interest under section 161.001(b)(2). The opinion situates that framework within the Texas Supreme Court’s recent reminders in In re K.N. and In re H.S. that termination implicates a deeply rooted constitutional interest, that termination must be a last resort, and that courts begin with a strong presumption against termination.

As to subsection (E), the governing rule is familiar: endangerment means to expose a child to loss or injury or to jeopardize the child’s physical or emotional well-being, and the statute focuses on the parent’s voluntary, deliberate, and conscious course of conduct rather than a single act or omission. Drug use may qualify because it can expose the child to instability, impaired parenting, incarceration, unsafe environments, and the probability that the parent will be unable to meet the child’s needs. Continued drug use during the pendency of the case is especially probative because it permits the factfinder to infer that the conduct is ongoing and likely to continue.

For best interest, the court necessarily applied the familiar statutory and common-law framework, including the Holley-type considerations and the Family Code’s emphasis on the child’s present and future safety, parental abilities, stability of the proposed placement, acts or omissions indicating an improper parent-child relationship, and any excuse for the parent’s conduct. In practice, the same evidence supporting endangerment often overlaps heavily with best interest.

Application

The First Court treated this case as a textbook subsection (E) record because the evidence did not show a temporary relapse or an isolated poor decision. Instead, it showed a sustained pattern. The child was born testing positive through meconium exposure to marijuana, Mother was positive at birth, and the Department then gave Mother an opportunity to avoid removal through services. Even with that opportunity, Mother continued to use drugs and continued to generate positive tests throughout the life of the case. The appellate court viewed that pattern as powerful proof of a voluntary, deliberate, and conscious course of conduct.

The court also tied the drug use to concrete endangerment rather than abstract moral disapproval. Mother’s repeated use affected visitation, including unsupervised visits that ceased after the child and the child’s belongings returned smelling strongly of marijuana. The caseworker observed behavior suggesting intoxication at a daytime visit, followed by a positive alcohol test and an admission from Mother that she had consumed more than one drink. Mother also admitted daily cocaine use for a two-week period after removal, undermining any suggestion that the case itself triggered rehabilitation. Her partial treatment participation did not neutralize the record because she failed to remain drug free, did not complete outpatient treatment before being rearrested, and was in federal custody at trial.

The placement evidence reinforced the endangerment finding. This was not a case where a struggling parent had lined up a safe, sober, and approved caregiver while pursuing treatment. The Department attempted less drastic alternatives and explored relative or designated placements, but those options failed. Mother herself said she could not care for the child, and the alternatives she proposed were unsuitable. That inability to provide safe care or identify a safe placement made the drug-use evidence more consequential, because it showed not only addiction but resulting parental incapacity.

The same factual matrix supported best interest. The child was very young, Mother was incarcerated again, her sobriety remained unproven, prior CPS history suggested chronic recurrence rather than a one-off crisis, and there was no indication she could promptly provide a stable home. The trial court was therefore entitled to conclude that the child’s need for permanence and safety outweighed any abstract possibility that Mother might eventually achieve stability.

Holding

The court held that legally and factually sufficient evidence supported the trial court’s predicate-ground finding under Texas Family Code section 161.001(b)(1)(E). Mother’s continued drug use during and after pregnancy, repeated positive tests during the case, admissions of use, substance-related concerns during visitation, and inability to care for the child or provide a safe alternative placement amounted to a voluntary, deliberate, and conscious course of conduct that endangered the child’s physical or emotional well-being.

The court also held that legally and factually sufficient evidence supported the best-interest finding under section 161.001(b)(2). The same evidence demonstrating chronic substance abuse and instability, combined with Mother’s incarceration, prior Department history, and lack of a safe or stable caregiving arrangement, permitted the trial court to conclude by clear and convincing evidence that termination was in the child’s best interest.

Practical Application

For practitioners representing the Department or another petitioner, In re W.W.-R. is a strong record-building case. It confirms that subsection (E) is best proved through pattern evidence: prenatal exposure, post-birth use, repeated positive tests, admissions, failed treatment episodes, visitation problems, criminal consequences, and the absence of a safe caregiving alternative. The opinion is particularly useful where the parent argues that participation in services or a brief period of negative testing defeats endangerment. It does not, especially when the overall record shows persistent use and instability.

For litigators in private custody cases, the decision is a reminder that drug evidence gains force when connected to parenting function. A positive test standing alone may not carry a conservatorship case, but repeated positives tied to unsafe exchanges, missed visits, erratic behavior, arrests, unstable housing, or inappropriate caregivers can become compelling best-interest evidence. This applies in original SAPCRs, modifications, supervised-possession disputes, and emergency temporary-orders practice.

For attorneys representing parents, the case highlights what appellate courts will view as missing. Late-stage treatment is rarely enough if it is compelled by probation, short in duration, unsupported by completed aftercare, and followed by incarceration or noncompliance. The defensive record must show sustained sobriety, corroborated by testing, treatment completion, attendance records, sponsor or counselor testimony, stable housing, lawful employment or support, medication compliance where relevant, and a vetted backup caregiver. Without that affirmative record, the court is left with the Department’s pattern narrative.

The case also has strategic implications for evidentiary presentation. Here, Mother did not testify and presented no evidence. In cases with a difficult record, silence can allow the petitioner’s chronology to harden into the only legally meaningful account of the case. Even where testimony is risky, counsel should consider whether corroborated documentary evidence, treatment witnesses, or a narrowly tailored parental narrative can prevent the factfinder from seeing only relapse, incarceration, and instability.

Checklists

Building a Subsection (E) Record for the Petitioner

• Obtain all prenatal and birth-related toxicology evidence, including maternal testing and meconium or cord-blood results.
• Create a chronological chart of all drug tests, including date, substance detected, and whether the test occurred before suit, during services, or after removal.
• Offer admissions of use through assessments, counseling records, provider testimony, and caseworker testimony where admissible.
• Tie substance use to parenting consequences, such as impaired visits, unsafe transportation, missed appointments, or inability to supervise the child.
• Develop evidence showing the parent’s inability to provide a safe home or identify a safe and approved alternative caregiver.
• Introduce treatment history to show recurrence, relapse, and failure to benefit, not just referral compliance.
• Use criminal, probation, or supervised-release evidence to show how substance abuse creates instability and risk of incarceration.
• Frame the case as a continuing course of conduct, not a collection of isolated incidents.

Defending Against an Endangerment-by-Drug-Use Theory

• Secure a complete and organized treatment record showing assessment, attendance, completion, discharge status, and aftercare.
• Present a documented sobriety timeline supported by negative tests, not merely client representations.
• Address every positive test directly; do not leave unexplained gaps or assume the court will minimize them.
• Offer evidence of current stability, including housing, employment, transportation, and a childcare plan.
• Vet and present safe alternative caregivers early, with background-check readiness and practical placement details.
• Consider testimony from treatment providers, probation officers, sponsors, therapists, or other credible third parties.
• If incarceration is involved, develop evidence about expected release, post-release plan, treatment access, and immediate child-care arrangements.
• Prepare the parent to explain relapse in a way that shows accountability and present corrective action, not minimization.

Using the Case in Private Custody or Modification Litigation

• Connect substance use evidence to best-interest factors such as safety, routine, emotional stability, and parental judgment.
• Seek temporary orders tailored to the proof, including supervised possession, monitored exchanges, no-use injunctions, and testing protocols.
• Use third-party evidence where possible, including school records, police reports, medical records, therapist input, and neutral witnesses.
• Show whether the parent’s associates, household members, or proposed caregivers are themselves unsafe or impaired.
• Focus on current functioning and future risk, not merely historic misconduct.
• Be prepared to distinguish isolated prior use from an ongoing course of conduct supported by recent evidence.

Avoiding Placement Failures

• Investigate relative and designated caregivers immediately.
• Run background and home-screening issues early rather than assuming a proposed caregiver will be approved.
• Document why a proposed caregiver is or is not safe.
• If representing the parent, do not propose caregivers with unresolved criminal, drug, or CPS concerns.
• Present a realistic, durable caregiving plan rather than a temporary or informal arrangement.
• Confirm the caregiver’s willingness, availability, and legal authority to act.

Preserving the Appellate Record

• Make the chronology easy for the trial court and the appellate court to follow.
• Tie each major fact to a statutory element or best-interest factor.
• Ensure exhibits are admitted cleanly and testimony identifies key dates and events.
• If representing the appellant, challenge gaps in proof with specificity and develop contrary evidence at trial.
• Request findings or otherwise preserve a clear basis for appellate review where appropriate.
• Remember that factual-sufficiency review is still highly record dependent; a thin defensive record is difficult to rehabilitate on appeal.

Citation

In the Interest of W.W.-R., a Child, No. 01-26-00242-CV, 2026 WL ___ (Tex. App.—Houston [1st Dist.] Aug. 18, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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