Family Code § 161.001(b)(1)(D) Unsupported as to Noncustodial Father | In re E.O. (2026)

In the Interest of E.O., a Child, 07-26-00287-CV, August 27, 2026.

On appeal from 237th District Court, Lubbock County, Texas

Synopsis

Section 161.001(b)(1)(D) does not permit a termination finding against a noncustodial father based merely on the mother’s drug use, relapse, and instability. Where the Department did not prove the father knowingly placed the child in endangering conditions or knowingly allowed the child to remain there, the Amarillo Court of Appeals held the subsection (D) finding was unsupported and modified the judgment to delete that ground while otherwise affirming termination on unchallenged grounds.

Relevance to Family Law

Although this is a termination case, the opinion has broader significance for Texas family-law litigators handling SAPCRs, custody modifications, and even divorce suits involving conservatorship disputes. The case reinforces a parent-specific proof requirement: dangerous conditions in one parent’s home do not automatically translate into legally sufficient endangerment findings against the other parent. For practitioners, that matters whenever one side attempts to leverage the misconduct of a co-parent into restrictions, supervised access, sole managing conservatorship arguments, or future collateral consequences under Family Code provisions that turn on prior endangerment findings.

Case Summary

Fact Summary

E.O. was born in May 2024. The Department became involved immediately after birth because of concerns about Mother’s methamphetamine history and a positive prenatal drug screen from December 2023, though both Mother and child tested negative at delivery. The Department initially used a safety plan rather than removing the child, and for several weeks the investigator reported no immediate concern about Mother’s parenting.

That changed when Mother became unreachable, left the residence where she had been staying, and later admitted relapse and mental-health episodes. The Department then removed the child in August 2024 and filed suit. At removal, Father had not been confirmed by DNA testing, but he contacted the Department promptly, stated he wanted the child placed with him, and cooperated with the investigation. The opinion expressly notes that Father was not accused in the initial investigation of abusing or neglecting the child.

Paternity testing was ordered early, and Father appeared in the case both pro se and through counsel. During the case, Father partially complied with services and was granted supervised visitation. At one point, the trial court retained the case on the docket to allow Father more time toward reunification and placement, suggesting he was still viewed as a possible placement option. Later, however, Father stopped making progress, ceased meaningful compliance, and was not engaging in visitation. At final hearing, the Department presented evidence through its investigator, a permanency specialist, and an arresting officer from Father’s public intoxication arrest. The trial court terminated Father’s rights under subsections (D), (E), and (N).

On appeal, Father challenged only the legal and factual sufficiency of the evidence supporting subsection (D).

Issues Decided

• Whether legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(D).
• Whether subsection (D) could be sustained against a noncustodial father when the evidence focused primarily on Mother’s drug use, relapse, and instability rather than the father’s creation, control, or knowing allowance of the child’s endangering environment.
• What appellate disposition was proper when subsection (D) was unsupported but other termination grounds were unchallenged.

Rules Applied

The court applied the familiar termination framework under Texas Family Code § 161.001(b): the Department must prove by clear and convincing evidence at least one predicate ground and that termination is in the child’s best interest.

The opinion also relied on the distinct textual requirements of subsections (D) and (E):

• Section 161.001(b)(1)(D): permits termination if the parent knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger the child’s physical or emotional well-being.
• Section 161.001(b)(1)(E): permits termination if the parent engaged in endangering conduct or knowingly placed the child with persons who engaged in such conduct.

The court emphasized the analytical difference between the two grounds:

• Subsection (D) focuses on the child’s environment—the conditions or surroundings.
• Subsection (E) focuses on the parent’s conduct.

The court further grounded its review in established authorities governing parental-rights terminations and appellate review:

• Santosky v. Kramer, 455 U.S. 745 (1982)
• Holick v. Smith, 685 S.W.2d 18 (Tex. 1985)
• In re A.V., 113 S.W.3d 355 (Tex. 2003)
• In re C.H., 89 S.W.3d 17 (Tex. 2002)
• In re J.O.A., 283 S.W.3d 336 (Tex. 2009)
• In re J.F.C., 96 S.W.3d 256 (Tex. 2002)
• Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987)
• In re N.G., 577 S.W.3d 230 (Tex. 2019)

Most importantly, the court followed In re N.G. in reaching the challenged subsection (D) finding even though other predicate grounds independently supported affirmance, because an affirmed (D) or (E) finding can later be used under Family Code § 161.001(b)(1)(M) in future termination litigation involving other children.

Application

The court’s analysis turned on a mismatch between the proof offered and the statutory language of subsection (D). The Department’s case for environmental endangerment was built almost entirely around Mother: her methamphetamine history, her relapse, her instability, and the circumstances that led to removal. That evidence may have explained why the child could not safely remain with Mother, but it did not, without more, establish that Father knowingly placed the child into those conditions or knowingly allowed the child to remain there.

That distinction mattered because Father was noncustodial at the time of removal, had not been identified by the Department as the source of the dangerous environment, and was not alleged in the initial investigation to have abused or neglected the child. The opinion suggests that while there may have been later evidence relevant to Father’s own conduct—particularly his failures with services, visitation, and other grounds for termination—that is not the same inquiry as subsection (D). The Department still had to prove a nexus between Father and the endangering surroundings themselves.

The court also appears to have credited the procedural posture of the case. Father came forward early, requested genetic testing, and expressed a desire to have the child placed with him. While that did not prevent termination on other grounds, it undermined any assumption that Mother’s environment could simply be imputed to him for subsection (D) purposes. In short, the record did not show that Father created the dangerous surroundings, exercised control over them, or knowingly permitted the child to remain in them.

Because appellate due process concerns attach to (D) and (E) findings under In re N.G., the court did not leave the unsupported (D) finding in place merely because the judgment could otherwise be affirmed. Instead, it modified the order to delete subsection (D).

Holding

The court held that the evidence was legally and factually insufficient to support termination under Texas Family Code § 161.001(b)(1)(D). The Department proved endangering circumstances associated with Mother, but it did not prove by clear and convincing evidence that Father knowingly placed the child in those conditions or knowingly allowed the child to remain there.

The court further held that, because Father did not challenge the trial court’s findings under subsections (E) and (N), the termination judgment itself would still stand. Consistent with In re N.G., however, the Amarillo court modified the judgment to delete the unsupported subsection (D) finding and affirmed the order as modified.

Practical Application

For trial lawyers representing parents, this opinion is a reminder to force precision in the Department’s pleadings, proof, and charge-level theories. If the Department’s evidence is fundamentally about the other parent’s drug use, unsafe associates, unstable housing, or neglectful supervision, counsel should insist that subsection (D) be tied to the client’s own knowing placement or allowance of those surroundings. For a noncustodial parent in particular, the statutory verbs matter.

For lawyers representing the Department or a child, the case illustrates the risk of overpleading without separately developing parent-specific evidence. If the theory is environmental endangerment under (D), the record must show more than mere biological parenthood and awareness of the case. The evidence should address the parent’s knowledge, ability to act, relationship to the residence or caretaking arrangement, and role in allowing the child to remain in the dangerous setting.

The opinion also has strategic consequences beyond termination. Findings under subsection (D) can become future litigation weapons under Family Code § 161.001(b)(1)(M). That means even when termination is independently sustainable under other grounds, appellate counsel should still challenge (D) and (E) findings whenever the record permits. In conservatorship litigation, the same reasoning supports objections to any attempt to bootstrap one parent’s endangering environment into findings against the other parent absent proof of knowledge, participation, or acquiescence.

In contested custody and modification cases, this decision also supports a narrower framing of “endangerment” evidence. If one parent seeks supervised access, geographic restrictions, or sole managing conservatorship based on the other parent’s supposed tolerance of dangerous conditions, E.O. offers a useful analytical template: identify the specific environment, identify the client’s actual control over it, and test whether the evidence truly shows knowing placement or knowing allowance rather than guilt by association.

Checklists

Preserving a Subsection (D) Challenge

• Plead and argue separately that subsection (D) requires proof of the client’s knowing placement or knowing allowance of endangering surroundings.
• Object when the Department conflates subsection (D) environmental endangerment with subsection (E) conduct-based endangerment.
• Move for directed verdict or equivalent legal-sufficiency relief if the Department’s proof focuses only on the other parent’s misconduct.
• Request findings or clarify the record regarding the client’s custodial status, residence, and actual control over the child’s environment.
• On appeal, expressly challenge subsection (D) and subsection (E) findings because of the collateral consequences recognized in In re N.G..

Building a Defense for a Noncustodial Parent

• Establish when paternity was confirmed and what the client knew before that date.
• Develop evidence showing the client did not reside in, control, or maintain the allegedly dangerous home.
• Document efforts by the client to obtain placement, visitation, or participation in the case.
• Show the Department did not initially accuse the client of abuse or neglect.
• Distinguish later service-plan failures from the narrower statutory elements of subsection (D).

Proving Subsection (D) If You Represent the Petitioner

• Identify the exact conditions or surroundings alleged to be endangering.
• Tie the parent to those surroundings with evidence of residence, access, control, caretaking authority, or decision-making.
• Prove the parent knew of the danger and nevertheless placed the child there or allowed the child to remain there.
• Avoid reliance solely on the other parent’s drug use or instability unless the evidence also shows the respondent parent’s knowing participation or acquiescence.
• Create a record that differentiates the evidence supporting (D), (E), and any abandonment ground.

Appellate Triage After Termination

• Review whether any affirmed or unchallenged predicate ground independently sustains termination.
• Even if affirmance is likely, evaluate whether a (D) or (E) finding should still be attacked to avoid future use under § 161.001(b)(1)(M).
• Seek modification deleting unsupported (D) or (E) findings rather than only full reversal where other grounds remain intact.
• Frame the issue in due-process terms under In re N.G..
• Ask whether the proof showed environmental endangerment by this parent, not simply danger in the child’s life generally.

Using E.O. in SAPCR and Custody Litigation

• Cite the case when opposing attempts to impute one parent’s dangerous environment to the other without parent-specific proof.
• Use the opinion to narrow overbroad allegations of “endangerment” in temporary-orders hearings.
• Argue that restrictions on possession or conservatorship should rest on evidence tied to the actual conduct or knowledge of the parent being restricted.
• Distinguish between awareness of the other parent’s problems and legal responsibility for placing the child into those conditions.
• Use the reasoning to challenge conclusory testimony that a parent “failed to protect” where the record lacks proof of control or meaningful opportunity to intervene.

Citation

In the Interest of E.O., a Child, No. 07-26-00287-CV, memorandum opinion (Tex. App.—Amarillo Aug. 27, 2026, modified and affirmed as modified).

Full Opinion

Read the full opinion here

~~528c71b1-80e3-4f09-8896-f28f2d509d2f~~