Family Code § 161.001(b)(1)(D),(E) Endangerment Sufficiency | In re D.W. (2026)

In the Interest of D.W., J.W., and I.W., Children, 10-26-00099-CV, August 20, 2026.

On appeal from 18th District Court of Johnson County, Texas

Synopsis

The Waco Court of Appeals held that legally and factually sufficient evidence supported termination under Family Code § 161.001(b)(1)(D) and (E) where the mother exposed the children to a home environment marked by drug use, domestic violence, sexual-abuse concerns, instability, and continued association with the father despite known risks. The opinion reinforces that endangerment may be shown through both acts and omissions, including knowingly leaving children with a person engaged in endangering conduct, and that conduct before and after removal remains relevant.

Relevance to Family Law

Although this is a termination case, its practical effect reaches well beyond CPS litigation. For Texas family-law litigators handling SAPCR modifications, custody disputes, supervised-access battles, relocation fights, and even strategic temporary-orders hearings in divorce, In re D.W. is a useful appellate reminder that a parent’s tolerance of dangerous conditions can be as consequential as direct misconduct. The opinion is particularly important where one parent minimizes drug use, domestic violence, sexual-abuse allegations, criminal activity, or housing instability while continuing to place the child with the offending parent; those facts can materially influence conservatorship, possession restrictions, injunctions, and best-interest findings even outside the termination context.

Case Summary

Fact Summary

The Department became involved in 2020, and in 2021 it filed suit seeking emergency removal. A mediated resolution led the Department to abandon termination at that time, and a 2022 agreed order appointed the Department as permanent managing conservator while Mother remained a possessory conservator. That procedural history mattered because Mother later argued the trial court should not have considered evidence predating the 2022 order, characterizing that order as a prior denial of termination.

On the merits, the record reflected an environment the court regarded as chronically dangerous. Before removal, both parents admitted drug use in the home. The evidence also showed domestic violence in the home and known reports of sexual abuse by one child against another. Despite those circumstances, Mother moved out of state and left the children with Father.

The risk picture worsened after removal. Father was arrested, continued using drugs, and had multiple felony issues known to Mother. Allegations also emerged that Father had sexually abused at least one of the children, and Father was arrested in December 2023 for sexual abuse of a child, though those charges were later dismissed. Mother was informed in court and otherwise that Father was not to have contact with the children, yet she continued associating with him, allowed him into her home, and ultimately remarried him and resumed living with him.

The opinion also highlighted later conduct involving Mother directly. In 2024, when D.W. was returned to Mother’s home, Mother left the country for a week without D.W., and there was evidence D.W. had been left alone on repeated occasions. There was also evidence of a physical altercation between Mother and D.W. D.W. was removed again in 2025. The record further showed instability in housing, with Mother having moved at least seven times since 2022, while Father had extended periods of incarceration.

Issues Decided

• Whether the 2022 agreed order was a prior order denying termination such that the trial court was precluded from considering earlier evidence.
• Whether legally and factually sufficient evidence supported termination of Mother’s parental rights under Texas Family Code § 161.001(b)(1)(D).
• Whether legally and factually sufficient evidence supported termination of Mother’s parental rights under Texas Family Code § 161.001(b)(1)(E).
• Whether the evidence supported the trial court’s best-interest finding.
• As to Father, whether legally and factually sufficient evidence supported the best-interest finding.

Rules Applied

The court applied the familiar two-part termination framework under Texas Family Code § 161.001: the Department had to prove by clear and convincing evidence both a predicate ground under § 161.001(b)(1) and that termination was in the children’s best interest.

As to subsection (D), the court reiterated that endangerment means exposing a child to loss or injury or jeopardizing the child’s physical or emotional well-being. The focus under subsection (D) is the child’s environment—whether the surroundings themselves were a source of endangerment. The court cited Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987), In re M.R.J.M., 280 S.W.3d 494 (Tex. App.—Fort Worth 2009, no pet.), and In re J.T.G., 121 S.W.3d 117 (Tex. App.—Fort Worth 2003, no pet.).

As to subsection (E), the court emphasized that termination may rest on proof that the parent engaged in conduct, or knowingly placed the child with persons who engaged in conduct, which endangered the child’s physical or emotional well-being. The inquiry under subsection (E) concerns whether the endangerment resulted from the parent’s conduct, including acts, omissions, and failures to act. The court relied on Boyd, In re E.M., 494 S.W.3d 209 (Tex. App.—Waco 2015, pet. denied), and In re L.S., No. 10-22-00119-CV, 2022 WL 3655395 (Tex. App.—Waco Aug. 24, 2022, no pet.) (mem. op.), noting that scienter is not required for a parent’s own acts under subsection (E).

The court also reaffirmed that conduct both before and after removal may be considered in the endangerment analysis under subsection (E), citing In re S.R., 452 S.W.3d 351 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). For best interest, the court applied the nonexclusive Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), factors, while also recognizing that evidence supporting predicate grounds may also be probative of best interest under In re C.H., 89 S.W.3d 17 (Tex. 2002).

Application

The court treated the evidence supporting subsections (D) and (E) as interrelated and analyzed the legal story as one of persistent, known danger rather than isolated bad acts. For subsection (D), the dangerous surroundings were not abstract. The children were living amid admitted drug use, domestic violence, sexual-abuse concerns, and criminality. The court viewed that home environment itself as a continuing source of physical and emotional danger.

For subsection (E), the court focused on Mother’s own conduct and omissions, especially her repeated decisions after those risks had become unmistakable. She left the children with Father despite already knowing about drug use, violence, and sexual-abuse concerns. After removal, she remained aligned with Father even after his arrests, ongoing drug issues, felony exposure, and sexual-abuse allegations. Most significantly, the court relied on the evidence that Mother knew Father was not to have contact with the children but nevertheless continued to associate with him, let him into her home, and eventually resumed living with him. That made this not merely a case of poor judgment in the past, but one of continuing endangering choices.

The later events involving D.W. reinforced the court’s view that the risk had not abated. Mother’s departure from the country while D.W. was in her care, the evidence that D.W. had been left alone repeatedly, the physical altercation, and Mother’s repeated moves all supported a narrative of instability and unsafe parenting conditions. The court expressly noted that these concerns persisted through the final hearing. In other words, Mother was unable to frame the evidence as stale history; the same core safety issues remained active.

On the procedural issue, the court rejected Mother’s attempt to classify the 2022 agreed order as a prior order denying termination. Because the Department had abandoned its termination request pursuant to mediation, the appellate court concluded termination had not actually been adjudicated then. That allowed the trial court to consider earlier evidence as part of the full endangerment picture.

Holding

The court held that the 2022 agreed SAPCR order was not a prior order denying termination. Because the Department had abandoned its termination request after mediation, the prior proceeding did not produce an adjudication rejecting termination on the merits. Mother therefore could not exclude pre-2022 evidence on that theory.

The court further held that legally and factually sufficient evidence supported termination of Mother’s parental rights under § 161.001(b)(1)(D). The record showed that Mother exposed the children to surroundings marked by admitted drug use, domestic violence, sexual-abuse concerns, criminality, and instability, all of which created a dangerous environment for the children’s physical and emotional well-being.

The court also held that legally and factually sufficient evidence supported termination under § 161.001(b)(1)(E). Mother’s own conduct and omissions—including leaving the children with Father despite known risks, continuing to associate with Father after later arrests and abuse allegations, allowing him access despite no-contact directives, and failing to provide stable, safe care when D.W. was returned—supported a firm conviction that she engaged in endangering conduct or knowingly placed the children with a person who did.

Finally, the court affirmed the best-interest finding and affirmed the termination judgment as to both parents. The same evidence establishing danger under subsections (D) and (E) also strongly supported the conclusion that termination was in the children’s best interest, particularly given the ongoing safety concerns, parental instability, unaddressed substance-abuse issues, and the parents’ unsuitable living arrangements.

Practical Application

For family-law litigators, In re D.W. is a strong reminder that endangerment cases are often won or lost on a pattern theory, not on any single event. If you represent the petitioner, do not silo the facts. Connect drug use, DV, sexual-abuse allegations, criminal conduct, housing instability, missed services, and disregard of safety plans into one coherent narrative showing that the parent knew the danger and still chose it. This opinion is particularly useful when the parent’s primary defense is, “I did not personally abuse the child.” Under both (D) and (E), the knowing tolerance of dangerous surroundings and dangerous caregivers can be enough.

For defense counsel, the case underscores the need to attack continuity, knowledge, and present risk. If the record shows the client continued a relationship with the unsafe parent, ignored Department directives, or resumed cohabitation after abuse allegations, the appellate posture becomes very difficult. Rehabilitation evidence must be specific, recent, corroborated, and tied directly to the risk factors that drove removal. General claims of improvement will not compete well against proof of ongoing contact, recurring instability, or unsafe supervision.

Outside the termination context, the reasoning translates readily to conservatorship and modification suits. A parent who leaves children with a violent, addicted, or criminally involved partner may face restrictions ranging from geographic restraints and injunctions to supervised possession or sole managing conservatorship for the other parent. The opinion also gives trial lawyers a useful appellate anchor for arguing that post-separation conduct remains relevant when it bears on future safety and parental judgment.

Checklists

Building an Endangerment Record Under § 161.001(b)(1)(D)

• Document drug use in the residence, including admissions, test results, police reports, photographs, and witness testimony.
• Develop evidence that the parent knew of dangerous conditions in the home and nevertheless allowed the child to remain there.
• Tie domestic violence evidence to the child’s living environment, even if the child was not the direct target.
• Identify sexual-abuse allegations, disclosures, forensic interviews, or outcry evidence relevant to the safety of the home.
• Show instability in housing, caretaking arrangements, and household composition.
• Present evidence that the dangerous environment persisted over time rather than arising from a one-off incident.

Building an Endangerment Record Under § 161.001(b)(1)(E)

• Prove the parent’s acts, omissions, or failures to act created or prolonged danger.
• Show the parent knowingly left the child with a person engaged in endangering conduct.
• Establish the parent’s knowledge through texts, testimony, court admonitions, service plans, police contact, or prior hearings.
• Use post-removal conduct to show the parent’s judgment did not improve.
• Highlight continued association with the unsafe partner despite no-contact directives or Department warnings.
• Frame recurring poor decisions as a course of conduct, not isolated mistakes.

Defending Against Endangerment Allegations

• Address each risk factor directly with corroborated evidence, not generalized denials.
• Demonstrate sustained separation from the unsafe partner with objective proof.
• Produce stable-housing evidence, including lease documents, home studies, and testimony about who actually lives in the home.
• Offer documented completion of services tied to the precise danger alleged, such as substance-abuse treatment, batterer’s intervention, counseling, and parenting work.
• Present a credible supervision and childcare plan that eliminates prior safety concerns.
• Anticipate that conduct before and after removal will be considered, and prepare a timeline showing genuine change.

Preserving and Framing Procedural Arguments

• Confirm whether a prior order actually adjudicated and denied termination on the merits before characterizing it as a “denial order.”
• Review mediated settlements and agreed SAPCR orders carefully to determine what claims were abandoned versus adjudicated.
• Preserve evidentiary objections with precision and tie them to a concrete legal theory.
• If arguing changed circumstances or temporal remoteness, build a record showing why older evidence is outweighed by recent stability.
• Be prepared for the court to consider older evidence where it illuminates a continuing pattern of danger.

Using This Case in Non-CPS Family Litigation

• In modification cases, plead and prove that a parent knowingly exposes the child to an unsafe partner or unsafe household conditions.
• In temporary-orders hearings, use evidence of ongoing drug use, DV, criminality, and unsafe supervision to support restrictions on possession.
• In relocation disputes, emphasize any history of leaving the child with an unsafe caregiver while the parent travels or lives elsewhere.
• In enforcement and injunction practice, use no-contact violations and hidden cohabitation to undermine credibility and support protective terms.
• In custody evaluations and amicus work, focus on whether the parent minimizes risk and repeats unsafe relational choices.

Citation

In the Interest of D.W., J.W., and I.W., Children, No. 10-26-00099-CV, memorandum opinion (Tex. App.—Waco Aug. 20, 2026, no pet.).

Full Opinion

Read the full opinion here

~~ff33d408-ed8c-4e96-ad3a-329368c487af~~