Family Code 161.001(b)(1)(E) Endangerment Sufficiency | In re I.L.Y. (2026)

In the Interest of I.L.Y. aka I.L.Y.H. and M.R.M., Children, 04-26-00126-CV, August 19, 2026.

On appeal from 45th Judicial District Court, Bexar County, Texas

Synopsis

The Fourth Court of Appeals held the evidence was legally and factually sufficient to support termination under Texas Family Code section 161.001(b)(1)(E) based on Mother’s endangering course of conduct, including drug use during pregnancy, criminal activity, repeated incarceration, and ongoing instability. Because subsection (E) carries collateral consequences and one predicate ground plus best interest is enough to affirm, the court did not need to reach Mother’s challenges to subsections (N) or (Q) once it upheld subsection (E) and best interest.

Relevance to Family Law

Although this is a termination case, its practical significance extends well beyond CPS litigation. For Texas family-law litigators handling SAPCR modifications, conservatorship disputes, geographic restriction fights, supervised-access cases, and even divorce suits involving managing conservatorship, In re I.L.Y. reinforces how courts evaluate a parent’s sustained pattern of instability—not isolated bad acts. Evidence of drug use, criminal conduct, incarceration, untreated mental-health or substance-abuse issues, and housing instability can shape not only termination outcomes, but also restrictions on possession, decision-making rights, temporary orders, step-up plans, and appointments of sole managing conservators. The opinion is also a reminder that when an endangerment finding under subsection (E) is in play, appellate courts will scrutinize it because of its future collateral effect under In re N.G.

Case Summary

Fact Summary

The Department became involved after the younger child, M.R.M., tested positive for amphetamines at birth and Mother also tested positive for amphetamines and marijuana at delivery. Mother denied direct drug use and attempted to explain the results away as secondhand exposure or laced cigarettes. The Department then received a second intake roughly a month later after Mother was arrested during a homicide investigation. Mother gave police a false name, had an active warrant, possessed a firearm despite being prohibited from doing so, and appeared intoxicated while caring for the infant.

The family situation further deteriorated before formal removal. Mother forced the older child, I.L.Y., from the home after an altercation, and he spent the night outside his high school before a neighbor, Patricia Baxter, took him in. Shortly afterward, Mother’s roommate left M.R.M. on Baxter’s porch. Both children remained in Baxter’s care during the case, except for a short inpatient treatment placement for I.L.Y.

Mother completed some services, especially while incarcerated, including parenting, domestic-violence, anger-management, CBT, substance-abuse programming, and a ninety-day ISF program. But the Department’s evidence showed material noncompletion as to core plan items: no completed substance-abuse assessment, no completed psychological evaluation, and no proof of stable housing or employment. Mother also had an extensive criminal history predating the case. During the pendency of the suit, she was incarcerated for substantial periods and, at trial, had been released but was living in a halfway house where the children could not reside.

The children’s post-removal progress mattered. I.L.Y. improved significantly in Baxter’s home: treatment participation, counseling, psychiatric care, weight gain, improved grades, and expressed safety and a desire to remain there without further contact with Mother. M.R.M., who had breathing, feeding, and developmental issues, underwent surgery and therapies and made substantial progress in Baxter’s care. Baxter wanted to adopt both children.

Issues Decided

• Whether legally sufficient evidence supported termination under Texas Family Code section 161.001(b)(1)(E).
• Whether factually sufficient evidence supported termination under Texas Family Code section 161.001(b)(1)(E).
• Whether Mother’s course of conduct—drug use during pregnancy, criminal activity, incarceration, and instability—constituted endangerment under subsection (E).
• Whether the court needed to address Mother’s appellate challenges to subsections 161.001(b)(1)(N) and (Q) after affirming on subsection (E) and best interest.
• Whether the evidence supported the best-interest finding under section 161.001(b)(2).

Rules Applied

The court applied the familiar termination framework:

• The Department must prove by clear and convincing evidence:
• at least one predicate ground under Texas Family Code section 161.001(b)(1); and
• that termination is in the child’s best interest under section 161.001(b)(2).
• Clear and convincing evidence is the measure or degree of proof that produces a firm belief or conviction in the truth of the allegations. TEX. FAM. CODE § 101.007.
• In legal-sufficiency review, the appellate court views the evidence in the light most favorable to the finding and determines whether a reasonable factfinder could form a firm belief or conviction. In re A.C., 560 S.W.3d 624 (Tex. 2018); In re J.F.C., 96 S.W.3d 256 (Tex. 2002).
• In factual-sufficiency review, the court weighs all evidence to determine whether disputed or contrary evidence is so significant that the factfinder could not reasonably have formed a firm belief or conviction. In re H.R.M., 209 S.W.3d 105 (Tex. 2006); In re C.H., 89 S.W.3d 17 (Tex. 2002); In re A.B., 437 S.W.3d 498 (Tex. 2014).

As to subsection (E), the court relied on settled endangerment principles:

• “Endanger” means to expose a child to loss or injury or to jeopardize the child’s emotional or physical well-being. Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987).
• Subsection (E) focuses on the parent’s conduct, including acts, omissions, and failures to act that create a voluntary, deliberate, and conscious course of conduct. In re M.J.M.L., 31 S.W.3d 347 (Tex. App.—San Antonio 2000, pet. denied).
• Endangering conduct may include drug use, criminal conduct, repeated incarceration, and instability, including conduct occurring outside the child’s presence or after removal.
• Illegal drug use can itself be endangering because it exposes a child to the possibility the parent will be impaired or imprisoned. In re J.O.A., 283 S.W.3d 336 (Tex. 2009).
• Drug use during pregnancy is especially probative of endangerment.
• Under In re N.G., 577 S.W.3d 230 (Tex. 2019), courts of appeals must address challenged subsection (D) or (E) findings because of their potential collateral consequences in future termination litigation.

Application

The Fourth Court treated the case as a classic subsection (E) course-of-conduct record rather than a single-incident case. The positive drug tests at M.R.M.’s birth gave the court a direct starting point: the younger child was born exposed to amphetamines, and Mother also tested positive for amphetamines and marijuana at delivery. The court was not required to accept Mother’s innocent explanations. In a clear-and-convincing sufficiency review, the factfinder remains free to disbelieve minimization and infer actual use from the testing evidence and surrounding circumstances.

From there, the court layered in criminality and instability. Mother’s arrest during the homicide investigation was not important merely because she was arrested; it mattered because the surrounding facts showed impaired judgment and danger while caring for a child—false identification, an active warrant, prohibited firearm possession, and apparent intoxication while caring for the infant. The court viewed that not as an isolated lapse, but as part of an ongoing pattern.

Repeated incarceration was another major component of the endangerment analysis. Texas law does not equate imprisonment with endangerment in every case, but repeated criminal conduct leading to repeated confinement may support a subsection (E) finding because it predictably subjects children to instability and the parent’s unavailability. That is exactly how the opinion reads this record. Mother’s criminal history predated removal, she was adjudicated on felony theft after violating deferred adjudication repeatedly, and she returned to confinement during the case after violating parole. By trial, she still could not provide a home where the children could live.

The court also relied on evidence that Mother had not completed critical remedial services tied to the reasons for removal. While she completed a number of classes in custody, the trial court was entitled to weigh the missing pieces more heavily: no psychological evaluation, no substance-abuse assessment, and no proof of stable housing or employment. The opinion implicitly distinguishes formal service participation from actual parental rehabilitation. Completion of prison or parole programming did not erase the ongoing inability to provide a stable and safe environment.

Finally, the children’s improvement in placement reinforced the trial court’s view of the danger associated with Mother’s conduct. I.L.Y.’s emotional and academic stabilization and M.R.M.’s medical and developmental gains in Baxter’s care did not themselves prove endangerment, but they supplied context for both best interest and the consequences of Mother’s instability.

Holding

The court held that legally and factually sufficient evidence supported termination under Texas Family Code section 161.001(b)(1)(E). In the court’s view, Mother’s course of conduct—drug use during pregnancy, evidence of intoxication while caring for the infant, criminal conduct, repeated incarceration, and continuing instability in housing and employment—permitted a reasonable factfinder to form a firm belief or conviction that Mother endangered the children’s physical or emotional well-being.

The court also held that, because one predicate ground under section 161.001(b)(1) plus a best-interest finding is sufficient to affirm termination, it did not need to address Mother’s challenges to subsections (N) and (Q) after sustaining subsection (E). That approach is consistent with Texas termination jurisprudence, while also satisfying In re N.G.’s requirement that an appellate court address a challenged (D) or (E) finding because of its collateral significance.

The opinion further affirmed the best-interest determination. Although the provided excerpt focuses more heavily on subsection (E), the underlying facts supporting endangerment also supported best interest: Mother’s unresolved instability contrasted with the children’s safety, progress, and permanency in Baxter’s home, where adoption was available.

Practical Application

For trial lawyers, In re I.L.Y. is a useful record-building case. It confirms that subsection (E) remains a broad but disciplined course-of-conduct ground, and the most persuasive records are cumulative. Positive drug tests alone may matter; criminal history alone may matter; incarceration alone may matter less. But when those facts converge with housing instability, service-plan noncompletion, impaired caregiving, and a child’s demonstrated need for permanence, appellate courts are likely to view the whole record as clear and convincing proof of endangerment.

In private family-law litigation, this reasoning translates readily into conservatorship and possession disputes. If you represent a parent seeking restrictions, supervised possession, or sole managing conservatorship, I.L.Y. supports framing the case around pattern evidence rather than isolated episodes. Build the chronology. Show recurrence. Tie the conduct to instability, unavailability, unsafe supervision, untreated substance-abuse concerns, and the child’s actual functioning.

If you represent the parent accused of endangering conduct, the opinion shows where the defense often fails. Denial without corroboration is weak. Partial service completion, especially while incarcerated, will not overcome an otherwise unresolved instability record. The defensive strategy must focus on verified sobriety, compliant treatment, stable housing, legal income, completed evaluations, a realistic caregiving plan, and evidence that the parent has broken the cycle rather than merely paused it.

For appellate counsel, the opinion underscores two strategic points:

1. Always directly attack subsection (E) when it is found. Because of In re N.G., that finding has collateral consequences well beyond the immediate case.
2. On the merits, sufficiency attacks are especially difficult where the Department has assembled a chronology showing repeated criminal conduct, incarceration, drug use, and noncompletion of key remedial steps.

Checklists

Building a Subsection (E) Trial Record

• Obtain certified drug-test records for parent and child, including prenatal and birth-related testing where applicable.
• Develop testimony tying substance use to caregiving impairment, missed visits, relapse risk, or incarceration exposure.
• Introduce certified criminal judgments, community supervision records, parole records, and jail/prison confinement dates.
• Show the pattern, not just the event: warrants, repeated violations, revocations, and returns to custody.
• Document housing instability with addresses, durations, evictions, halfway-house restrictions, or inability of children to reside there.
• Prove employment instability through admissions, lack of pay records, or inconsistent work history.
• Introduce service-plan deficiencies with specificity rather than general conclusions.
• Use placement evidence to show the child’s progress, stability, and need for permanency.

Defending Against an Endangerment Finding

• Challenge the chronology and separate stale conduct from current capacity where the law and facts permit.
• Present corroborated sobriety evidence: negative tests, treatment discharge records, sponsor testimony, and relapse-prevention planning.
• Complete the substance-abuse assessment and psychological evaluation early, and put the reports into evidence if favorable.
• Prove stable housing with lease documents, photographs, utility bills, and testimony that the child can reside there immediately.
• Prove lawful income with pay stubs, employer letters, and work schedules compatible with caregiving.
• Address criminal history candidly and show concrete post-release compliance rather than excuses.
• Present a realistic childcare and transportation plan.
• Avoid unsupported explanations for positive tests or criminal conduct; trial courts often treat minimization as a credibility problem.

Preserving Error and Positioning the Appeal

• Specifically challenge subsection (E) findings in the statement of issues and briefing.
• Distinguish legal sufficiency from factual sufficiency with record-cited argument tailored to each standard.
• Address In re N.G. expressly when a (D) or (E) finding is involved.
• Attack the “course of conduct” theory by isolating gaps in proof, timing issues, and lack of nexus to danger.
• If defending the judgment, organize the appellee’s brief chronologically to show continuity of endangering conduct.
• Tie every major fact to the clear-and-convincing standard, not merely to a preponderance-style narrative.

Using I.L.Y. in Non-CPS Family Litigation

• In modification suits, use the case to support arguments that repeated instability can justify restrictions short of termination.
• In temporary-orders hearings, frame recent drug use, arrests, and unstable housing as an ongoing pattern affecting immediate safety.
• In contested conservatorship cases, use the opinion to support sole managing conservatorship where the other parent’s instability is chronic.
• In possession disputes, argue for supervision, phased reinstatement, or testing protocols tied to demonstrated risk factors.
• In settlement negotiations, use the endangerment analysis to press for enforceable safety provisions, treatment requirements, and compliance benchmarks.

Citation

In the Interest of I.L.Y. aka I.L.Y.H. and M.R.M., Children, No. 04-26-00126-CV, 2026 WL ___ (Tex. App.—San Antonio Aug. 19, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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