Conduct Need Not be Directed at Children to Support Section 161.001(b)(1)(E) Endangerment | In re A.V.V. (2026)

In the Interest of A.V.V., J.T.V., S.V.V., and L.A.V., Children, 04-26-00591-CV, October 30, 2026.

On appeal from 225th Judicial District Court, Bexar County, Texas

Synopsis

The Fourth Court of Appeals held that legally and factually sufficient evidence supported termination under Texas Family Code § 161.001(b)(1)(E). The record permitted the trial court to form a firm belief or conviction that Father engaged in a voluntary, deliberate course of conduct endangering the children’s physical or emotional well-being, even without proof that his conduct was directed at the children or caused an actual injury.

Relevance to Family Law

Although In re A.V.V. is a parental-termination case, its treatment of cumulative conduct has broader significance in divorce and SAPCR litigation. Evidence of repeated angry outbursts, threats toward caregivers, domestic-violence allegations, criminal conduct, instability, and failures to address behavioral concerns may affect conservatorship, possession, access, geographic restrictions, protective orders, and best-interest findings. Family-law litigators should present these facts as a connected course of conduct rather than as isolated incidents.

The decision does not convert the subsection (E) endangerment standard into the governing test for an ordinary custody modification or divorce. Nevertheless, the same evidence may be relevant under the best-interest standard, the statutory presumptions involving family violence, and requests for supervised or restricted possession. In property litigation, such conduct ordinarily does not determine characterization or division by itself, but related evidence may bear on credibility, fault, protective relief, litigation conduct, and the practical structuring of temporary orders.

Case Summary

Fact Summary

The Department removed four young children from Mother’s custody in April 2025 after validating physical neglect. The home smelled of urine, lacked working air conditioning, and contained open diapers and old food. The children were wearing dirty diapers, and one child had a bruise and a mark under her eye. The Department’s concerns centered on the condition of the home and inadequate supervision.

Father was incarcerated on a drug-possession charge when the Department obtained temporary managing conservatorship, although he was released while the case remained pending. The three older children were placed with a paternal aunt and her fiancé. The youngest child was initially placed with them but later moved to another foster home.

At the bench trial, the Department presented testimony from the caseworker and a CASA volunteer. Father also testified. The evidence included Mother’s reports that Father had been violent, abusive, and had stalked her, although she provided few details and Father denied a history of domestic violence. Father acknowledged a 2019 arrest for assaulting a former partner but testified that the charge had been dismissed.

The court also heard evidence of Father’s conduct during the Department’s case. The caseworker testified that Father threatened to fight a foster parent, became verbally aggressive with a CASA worker, and became angry and frustrated during visits with the children. Some of the outbursts occurred in the children’s presence or were directed toward them. The CASA volunteer similarly described a confrontation in which Father yelled at a foster father because the youngest child referred to the foster parent as “Father.”

Father completed a four-hour anger-management class that he selected. The caseworker did not consider that course sufficient to address the identified concerns, and Father reportedly became very angry when she attempted to discuss more intensive anger-management services with him. The trial court ultimately found predicate grounds under Texas Family Code § 161.001(b)(1)(E) and (N), found termination to be in the children’s best interest, and terminated Father’s parental rights.

Issues Decided

• Whether legally sufficient evidence supported the trial court’s finding that Father engaged in conduct endangering the children’s physical or emotional well-being under Texas Family Code § 161.001(b)(1)(E).

• Whether factually sufficient evidence supported the subsection (E) finding under the clear-and-convincing-evidence standard.

• Whether the termination order could be affirmed when Father also challenged the subsection (N) predicate finding and the best-interest finding.

• Whether Father preserved an appellate challenge to the Department’s appointment as managing conservator when his brief listed the issue but did not provide supporting argument or authority.

Rules Applied

Texas Family Code § 161.001(b)(1)(E) permits termination when a parent has “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” Endangerment means exposing a child to loss or injury or jeopardizing the child’s well-being. The Department must prove both a statutory predicate ground and the child’s best interest by clear and convincing evidence. See Tex. Fam. Code §§ 101.007, 161.001, 161.206.

Subsection (E) focuses on the parent’s conduct, including acts, omissions, and failures to act. It requires a voluntary, deliberate course of conduct rather than a single, isolated incident. The conduct need not be directed at the child, and the Department need not prove that the child suffered an actual injury. It is enough that the parent’s course of conduct created a potential danger that the parent knew about but disregarded.

The factfinder may consider conduct occurring before removal, after removal, outside the child’s presence, and, in appropriate circumstances, before the child’s birth. Such evidence may support an inference that the conduct could recur and continue to jeopardize the child. The danger to the child also may be inferred from parental misconduct rather than established through separate evidence of injury.

Under In re J.F.C., 96 S.W.3d 256 (Tex. 2002), and In re J.O.A., 283 S.W.3d 336 (Tex. 2009), legal-sufficiency review asks whether, viewing the evidence in the light most favorable to the finding, a reasonable factfinder could form a firm belief or conviction that the finding was true. Factual-sufficiency review considers the entire record, including disputed evidence, and asks whether contrary evidence was so significant that a reasonable factfinder could not form that firm belief or conviction.

Only one predicate ground is generally necessary when the evidence also supports a best-interest finding. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). But because findings under subsections (D) and (E) can affect a parent’s rights to other children, an appellate court must review a properly raised challenge to either finding. See In re N.G., 577 S.W.3d 230, 236–37 (Tex. 2019).

Finally, Texas Rule of Appellate Procedure 38.1(i) requires an appellant’s brief to contain a clear argument supported by appropriate citations to authorities and the record. Merely identifying an issue without briefing it does not preserve the issue for appellate consideration.

Application

The appellate court evaluated Father’s behavior cumulatively. The relevant question was not whether any single angry encounter, accusation, arrest, or incomplete service independently justified termination. The question was whether the evidence, taken together, showed a voluntary and deliberate course of conduct that exposed the children to physical or emotional danger.

The record permitted the trial court to consider the reported domestic-violence concerns alongside Father’s admitted prior assault arrest, his threat to fight a foster parent, his verbal aggression toward a CASA worker, and his repeated inability to regulate his anger during the case. Particularly significant was evidence that some of these incidents occurred in the children’s presence or involved their caregivers. Aggressive conduct toward foster parents and professionals responsible for the children could be viewed as creating instability around the children and undermining their placements.

Father disputed the domestic-violence allegations and testified that the prior assault charge had been dismissed. Those disputes did not eliminate the evidence from the factfinder’s consideration. In a bench trial, the trial judge was responsible for determining credibility and the weight to assign conflicting testimony. The appellate court could not substitute its own credibility determinations merely because Father offered a different account.

Father’s completion of a four-hour anger-management course was favorable evidence, but the trial court was not required to treat completion of that course as dispositive. The caseworker testified that the selected class was insufficient to address the concerns, and Father allegedly responded with further anger when more substantial services were discussed. The trial court could view that reaction as evidence that the underlying problem remained unresolved rather than as proof of successful rehabilitation.

The court’s analysis also did not depend on proof that Father had physically injured one of the children. Subsection (E) reaches conduct that exposes a child to a potential for harm. Repeated uncontrolled anger, threats, aggressive confrontations, criminal instability, and failure to meaningfully address identified concerns may collectively support an endangerment finding even when no discrete injury is attributed to the parent.

Holding

The Fourth Court of Appeals held that the evidence was legally and factually sufficient to support termination under Texas Family Code § 161.001(b)(1)(E). A reasonable factfinder could form a firm belief or conviction that Father’s acts, omissions, and behavior constituted a voluntary, deliberate course of conduct endangering the children’s physical or emotional well-being.

The court reaffirmed that subsection (E) does not require proof that the parent’s conduct was directed at the children or that the children suffered an actual injury. Endangerment may arise from a course of conduct creating instability or a potential for danger that the parent disregards.

Because one supported predicate ground is sufficient when accompanied by a best-interest finding, the subsection (E) holding provided the necessary predicate basis for termination. The court affirmed the termination order.

The court did not consider Father’s challenge to the Department’s appointment as managing conservator because the body of his brief contained no supporting argument or authority. Listing an issue without substantively briefing it did not satisfy Texas Rule of Appellate Procedure 38.1(i).

Practical Application

For the Department or another party seeking restrictive relief, In re A.V.V. supports building the case chronologically. Counsel should connect pre-suit conduct, post-removal behavior, interactions with caregivers, conduct during visitation, responses to service providers, and courtroom demeanor. The persuasive force comes from demonstrating repetition, escalation, lack of insight, and the continuing potential for danger—not merely accumulating unrelated bad acts.

For a parent defending against subsection (E), it is not enough to dispute each event in isolation. Counsel should address the asserted pattern. That requires credible explanations, corroborating witnesses, records showing successful completion of appropriate services, evidence of behavioral change over time, and proof that the parent can interact safely with children, caregivers, and professionals under stressful conditions.

In divorce and custody cases, attorneys should distinguish between conduct that is merely unpleasant and conduct that bears on a child’s safety or emotional welfare. Anger toward an opposing party may become materially different when it occurs during exchanges, in front of the children, toward a child’s caregiver, or in a manner that destabilizes possession arrangements. Temporary orders should be designed to reduce those risks through neutral exchanges, structured communication, counseling, supervised possession, or other narrowly tailored safeguards.

The decision also cautions against treating service-plan completion as a box-checking exercise. A certificate establishes attendance or completion; it does not necessarily establish behavioral change. The proponent should connect the service to observable improvement. The opposing party should be prepared to show why a short or self-selected course did not adequately address the identified risk.

Appellate counsel should separately preserve and brief every requested issue. A challenge appearing only in the statement of issues will not satisfy Rule 38.1(i). This is especially important when challenging conservatorship provisions independently of a termination ruling.

Checklists

Proving a Subsection (E) Course of Conduct

• Create a dated chronology of relevant acts, omissions, threats, arrests, and failures to act.

• Identify which incidents occurred in the children’s presence.

• Document conduct directed toward foster parents, relatives, CASA volunteers, caseworkers, therapists, and visitation supervisors.

• Obtain visitation notes, incident reports, text messages, emails, recordings, photographs, and law-enforcement records.

• Distinguish firsthand testimony from hearsay reports and establish admissibility.

• Connect individual incidents to a recurring behavioral pattern.

• Explain how the conduct created instability or a potential for physical or emotional harm.

• Present evidence of the parent’s response when concerns or additional services were discussed.

• Address both pre-removal and post-removal conduct.

• Avoid relying exclusively on one disputed accusation or one isolated incident.

Defending Against an Endangerment Allegation

• Challenge whether the evidence shows a course of conduct rather than an isolated event.

• Separate arrests and allegations from convictions, admissions, or supported factual findings.

• Identify inconsistencies in witness accounts and the absence of firsthand knowledge.

• Present corroborating evidence when denying domestic violence, threats, or aggressive behavior.

• Complete services tailored to the actual concerns rather than selecting the shortest available program.

• Present testimony from counselors or providers concerning participation, insight, and behavioral progress.

• Demonstrate sustained improvement during visitation and interactions with caregivers.

• Show compliance with medication, treatment, probation, or other stability-related requirements when applicable.

• Explain adverse incidents directly rather than minimizing or ignoring them.

• Develop evidence of safe housing, lawful employment, sobriety, reliable transportation, and appropriate childcare.

Litigating Anger and Family-Violence Evidence

• Determine whether the alleged conduct occurred in front of the children or affected exchanges and possession.

• Obtain protective-order applications, police reports, body-camera footage, and 911 records.

• Investigate the disposition of prior criminal charges.

• Identify whether the witness personally observed the conduct.

• Evaluate the applicability of statutory family-violence presumptions.

• Consider requests for supervised possession, neutral exchanges, or app-based communication.

• Avoid unnecessary confrontations with caregivers and court-appointed professionals.

• Prepare the client for interactions during visitation, mediation, depositions, and trial.

• Treat threatening communications and courtroom outbursts as potential substantive evidence, not merely litigation distractions.

Preserving the Appellate Record

• Obtain rulings on all objections and requested relief.

• Request findings of fact and conclusions of law when strategically appropriate.

• Ensure exhibits, recordings, and demonstrative evidence are formally admitted.

• Brief each appellate issue with substantive analysis, record citations, and legal authority.

• Challenge subsection (D) or (E) findings expressly because of their potential collateral consequences under In re N.G.

• Brief conservatorship issues independently if relief is sought from that portion of the judgment.

• Apply the clear-and-convincing legal- and factual-sufficiency standards separately.

• Address evidence supporting the finding as well as significant contrary evidence.

Citation

In re A.V.V., No. 04-26-00591-CV (Tex. App.—San Antonio Oct. 30, 2026, no pet. h.) (mem. op.).

Full Opinion

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