Section 161.001(b)(1)(E) Endangerment Finding Reversed | In re J.B.L. (2026)

In the Interest of J.B.L., a Child, 04-26-00388-CV, November 04, 2026.

On appeal from 407th Judicial District Court, Bexar County, Texas

Synopsis

Clear and convincing evidence did not support termination under Texas Family Code § 161.001(b)(1)(E) because the Department failed to connect Mother’s drug use to a conscious course of conduct endangering J.B.L. during pregnancy or while the child was in her care. The Fourth Court of Appeals deleted the subsection (E) finding but affirmed termination based on the unchallenged subsection (N) and (O) findings and the affirmed best-interest finding.

Relevance to Family Law

In re J.B.L. is significant for termination and conservatorship practitioners because it reinforces the distinction between evidence that reflects poorly on a parent and evidence that satisfies a specific statutory predicate ground. Drug use—particularly historical or post-removal use—does not automatically establish subsection (E) endangerment; counsel must prove how the parent’s conduct created a danger to the child’s physical or emotional well-being and constituted a conscious course of conduct rather than an isolated event.

The same evidentiary discipline applies in divorce and custody litigation. Allegations involving drugs, alcohol, domestic violence, criminal conduct, or instability should be tied to parenting ability, the child’s circumstances, and the requested conservatorship or possession restrictions. Although the opinion does not alter Texas property-division law, it cautions divorce litigators against treating evidence relevant to custody or credibility as automatically dispositive of an unrelated property issue. Each requested finding and remedy requires evidence tied to its governing legal standard.

Case Summary

Fact Summary

The Department became involved after receiving a referral alleging neglectful supervision and possible methamphetamine use by Mother. It filed its termination petition on February 12, 2025, and the 407th Judicial District Court conducted a bench trial on April 28, 2026. The Department’s caseworker, Mother, and the child’s foster mother testified.

The trial court terminated Mother’s parental rights under Texas Family Code § 161.001(b)(1)(E), (N), and (O). It also found that termination was in J.B.L.’s best interest under § 161.001(b)(2).

The evidence relevant to subsection (E), however, presented a timing and causation problem. The Department offered some evidence that Mother had used drugs years before J.B.L.’s birth and evidence that she used drugs after the child was removed. But it presented no evidence that Mother used drugs while pregnant with J.B.L., while caring for the child, or at the time of removal. Nor did the record establish that her historical drug use affected her ability to parent J.B.L. or otherwise endangered the child while in her care.

Mother appealed the subsection (E) finding and the best-interest finding. She did not challenge the trial court’s subsection (N) and (O) findings.

Issues Decided

Whether legally and factually sufficient evidence supported the finding that Mother engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangered J.B.L.’s physical or emotional well-being under Texas Family Code § 161.001(b)(1)(E).
Whether the appellate court was required to review the challenged subsection (E) finding even though the unchallenged subsection (N) and (O) findings independently supplied predicate grounds for termination.
Whether sufficient evidence supported the trial court’s finding that termination was in J.B.L.’s best interest.
Whether the termination judgment could remain in effect after deletion of the unsupported subsection (E) finding.

Rules Applied

Under Texas Family Code § 161.001(b), termination requires clear and convincing evidence of at least one predicate ground under subsection (b)(1) and that termination is in the child’s best interest under subsection (b)(2). “Clear and convincing evidence” is proof sufficient to produce in the factfinder’s mind a firm belief or conviction as to the truth of the allegations. TEX. FAM. CODE §§ 101.007, 161.001(b).

Subsection (E) authorizes 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.” TEX. FAM. CODE § 161.001(b)(1)(E). Endangerment does not require conduct directed at the child or proof that the child suffered an actual injury. It does, however, require proof that the parent’s conduct exposed the child to loss or injury or jeopardized the child’s physical or emotional health.

The endangerment must result from a conscious course of conduct rather than a single act or omission. The evidence must permit the factfinder to connect the parent’s acts, omissions, or failures to act to a potential danger to the child that the parent knew about but disregarded.

Drug use may constitute endangering conduct, but it must not be evaluated in isolation. Under In re R.R.A., 687 S.W.3d 269 (Tex. 2024), the court must consider whether the drug use, together with other evidence, created a risk to the parent’s ability to parent. The Supreme Court of Texas’s decision in In re K.N., 741 S.W.3d 165 (Tex. 2026), also cautions against relying on drug use occurring only after removal to establish the subsection (D) or (E) predicate.

Ordinarily, one supported predicate ground and a best-interest finding are sufficient to affirm termination. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Subsection (D) and (E) findings are different, however, because they can support termination of the parent’s rights to another child under subsection (M). Consequently, when a parent challenges a subsection (D) or (E) finding, due process requires the appellate court to review it even if another predicate ground independently supports termination. In re N.G., 577 S.W.3d 230, 234–37 (Tex. 2019).

In reviewing legal sufficiency, the appellate court examines the evidence in the light most favorable to the finding and asks whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. Factual-sufficiency review considers the entire record, including contrary evidence, to determine whether the disputed evidence was so significant that a reasonable factfinder could not have resolved it in favor of the finding. The appellate court continues to defer to the trial court’s credibility determinations when those determinations are reasonable.

Application

The Department’s subsection (E) theory depended substantially on evidence of Mother’s drug use. But the evidence did not establish a drug-related course of conduct during the periods most directly connected to Mother’s care of J.B.L. The Department offered no evidence that Mother used drugs during the pregnancy, while J.B.L. was in her custody, or when the child was removed. Evidence of drug use years before the child’s birth did not, without an additional evidentiary link, show that Mother’s conduct endangered this child.

The Department also failed to demonstrate that Mother’s earlier drug use impaired her ability to care for J.B.L. or otherwise exposed the child to physical or emotional danger. Thus, the deficiency was not merely the absence of an actual injury. The record lacked the required connection between the alleged conduct, Mother’s parenting, and a danger to J.B.L.

The court treated Mother’s post-removal drug use differently depending on the issue under review. It could be considered in evaluating the child’s best interest, but it did not establish that Mother had engaged in the conscious course of endangering conduct required by subsection (E). Relying on In re K.N., the court emphasized that drug use occurring only after removal does not necessarily prove an endangerment predicate tied to the child’s prior circumstances.

The court was nevertheless required to decide Mother’s challenge to subsection (E). Under In re N.G., leaving an unsupported subsection (E) finding intact would carry potential consequences in a future termination proceeding involving another child. The unchallenged subsection (N) and (O) findings therefore did not render the subsection (E) challenge immaterial.

At the same time, reversal of the subsection (E) finding did not require reversal of the termination itself. Mother did not challenge the findings under subsections (N) and (O), and those findings remained valid predicate grounds. The court also rejected Mother’s challenge to the best-interest determination. The statutory requirements for termination therefore remained satisfied after subsection (E) was deleted from the order.

Holding

The Fourth Court of Appeals held that the evidence was insufficient to support termination under Texas Family Code § 161.001(b)(1)(E). The record did not provide clear and convincing evidence that Mother engaged in a conscious course of conduct that endangered J.B.L.’s physical or emotional well-being.

The court further held that it was required to review the challenged subsection (E) finding notwithstanding the unchallenged predicate findings. Because a subsection (E) finding may later support termination as to another child under subsection (M), due process required substantive appellate review and deletion of the unsupported finding.

The court affirmed the trial court’s best-interest finding. Mother’s post-removal conduct could be considered as part of that separate inquiry even though it did not establish the subsection (E) predicate on this record.

Finally, the court held that termination remained supported by the unchallenged subsection (N) and (O) findings together with the affirmed best-interest finding. It modified the termination order to delete the subsection (E) finding and affirmed the judgment as modified.

Practical Application

For Department and ad litem counsel, In re J.B.L. demonstrates that proof of drug use is only the beginning of a subsection (E) case. The record should establish when the drug use occurred, whether the child was present or in the parent’s care, how the use affected the parent’s judgment or functioning, and how it exposed the child to danger. Testimony that a parent “used drugs” without a chronology, corroboration, or a parenting nexus may support a best-interest argument but still fail to meet subsection (E)’s clear-and-convincing burden.

For parent’s counsel, the opinion provides a framework for separating generalized parental unfitness evidence from evidence supporting a particular predicate ground. Counsel should construct a timeline identifying conduct before birth, during pregnancy, during the parent’s care, at removal, and after removal. A motion for directed verdict or closing argument should identify any missing causal link between the alleged conduct and danger to the child.

Appellate counsel should challenge an unsupported subsection (D) or (E) finding even when another predicate ground is difficult to contest. Eliminating the finding may not change the immediate termination result, but it can prevent the finding from serving as a predicate under subsection (M) in a later case. Briefing should expressly invoke In re N.G. and request modification of the judgment to delete the unsupported finding.

In broader custody litigation, practitioners should use the same nexus analysis when seeking supervised possession, drug testing, geographic restrictions, or limitations on conservatorship rights. Evidence of substance use should be connected to missed visitation, impaired supervision, unsafe transportation, unstable housing, criminal exposure, untreated mental-health concerns, or other facts bearing on the child. Conversely, the responding parent should emphasize temporal gaps, successful periods of care, negative testing, treatment compliance, and the absence of evidence that the conduct affected the child.

In divorce cases involving both custody and property claims, counsel should compartmentalize the evidence. Conduct relevant to conservatorship or possession is not automatically relevant to characterization, reimbursement, fraud on the community, or a just-and-right division. The proposed findings and supporting proof should be matched to each distinct statutory standard.

Checklists

Building a Subsection (E) Endangerment Record

Establish a detailed chronology of the alleged endangering conduct.
Identify whether the conduct occurred before birth, during pregnancy, while the child was in the parent’s care, at removal, or only after removal.
Connect substance use or other misconduct to the parent’s ability to supervise and care for the child.
Develop evidence showing the parent knew of the danger but disregarded it.
Prove a course of conduct rather than relying on a single event.
Obtain drug-test results, treatment records, criminal records, photographs, communications, and relevant medical records.
Identify witnesses with personal knowledge of impairment or unsafe parenting.
Explain how the conduct exposed the child to physical or emotional loss or injury.
Avoid relying exclusively on conclusory caseworker testimony.
Address contrary evidence that may prevent the factfinder from forming a firm belief or conviction.

Defending Against a Subsection (E) Allegation

Create a timeline separating historical, pre-removal, and post-removal conduct.
Determine whether the Department can prove drug use during pregnancy or while the child was in the parent’s care.
Challenge hearsay or speculation concerning alleged substance use.
Identify gaps in drug testing and weaknesses in the chain of custody.
Emphasize the absence of evidence connecting the conduct to parenting impairment.
Develop evidence of safe caregiving during the relevant period.
Present negative tests, treatment completion, counseling records, and relapse-prevention efforts.
Distinguish an isolated incident from a conscious course of conduct.
Separate evidence relevant to best interest from evidence supporting the statutory predicate.
Request specific findings that preserve the distinction between each pleaded termination ground.

Preserving the Appellate Record

Object to legally conclusory testimony that lacks supporting facts.
Move for judgment on any predicate ground unsupported by clear and convincing evidence.
Request findings identifying each statutory predicate relied upon by the trial court.
Ensure exhibits contain dates and information linking the conduct to the child.
Obtain rulings on excluded evidence and make offers of proof when necessary.
Challenge subsection (D) and (E) findings expressly and separately on appeal.
Brief both legal and factual sufficiency when supported by the record.
Invoke In re N.G. to require appellate review of challenged subsection (D) or (E) findings.
Request modification deleting an unsupported finding even if termination remains supported by another ground.
Avoid assuming that reversal of one predicate ground will reverse the entire termination judgment.

Applying the Nexus Requirement in Custody Litigation

Tie alleged substance use to conservatorship, possession, access, or child-safety concerns.
Identify specific incidents of impaired supervision or unsafe transportation.
Document missed exchanges, missed visits, or parenting failures associated with the conduct.
Tailor requested restrictions to the proven risk.
Consider graduated possession, monitoring, testing, or treatment conditions instead of overbroad restrictions.
Distinguish evidence supporting temporary precautions from evidence supporting permanent limitations.
Prepare proposed findings that explain the connection between the conduct and the child’s best interest.
Avoid using unrelated property disputes as a substitute for child-focused evidence.

Citation

In re J.B.L., No. 04-26-00388-CV (Tex. App.—San Antonio Nov. 4, 2026).

Full Opinion

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