Factual Insufficiency of Best Interest Finding | In re A.A. (2026)

In the Interest of A.A., a Child, 01-25-01074-CV, June 11, 2026.

On appeal from 313th District Court, Harris County, Texas

Synopsis

The First Court of Appeals held that proof of predicate endangerment grounds under Family Code section 161.001(b)(1)(D) and (E) did not, by itself, carry the Department’s burden on best interest under section 161.001(b)(2). Although the evidence was legally sufficient, it was factually insufficient to produce a firm belief or conviction that termination was in the child’s best interest, so the court reversed and remanded for a new trial.

Relevance to Family Law

For Texas family lawyers, this opinion matters well beyond CPS termination practice. The case underscores a broader appellate reality that also affects SAPCR modification fights, conservatorship disputes, supervised-access litigation, and even high-conflict divorce cases involving children: when the record contains meaningful evidence of parental improvement, service compliance, housing and employment stability, and a continuing parent-child bond, a trial court’s child-focused ruling may become vulnerable on factual-sufficiency review if the factfinder does not adequately reconcile that competing proof. The strategic lesson is clear—family-law trial counsel must build a record that does more than show past misconduct; it must also address present circumstances, recent progress, credibility disputes, and why the child’s welfare is better served by the requested order notwithstanding contrary evidence.

Case Summary

Fact Summary

The case arose from the Department’s removal of four-month-old A.A. after a domestic-violence incident between Mother and her boyfriend. Mother attempted to prevent the boyfriend from leaving, tried to cut his throat with a bus card, and he struck her in the face, breaking her nose. Once at the hospital, Mother was referred for inpatient psychiatric treatment and had no immediate caregiver for the child, leading to emergency removal.

The Department’s service plan focused on alcohol abuse, domestic violence, medication compliance, stability, and support systems. Mother was required to maintain stable employment and housing, attend parenting classes, AA meetings, domestic-violence programming, counseling, and evaluations, and establish a support network, all with proof of completion.

By the time of trial, the Department’s own caseworker acknowledged that Mother had completed the listed services and had made substantial progress. She had verifiable employment for roughly three months, a current apartment under a three-month lease, negative drug tests, resumed psychiatric medication, and attended all but one unsupervised visit, with the missed visit attributed to confusion. The child was bonded with Mother. At the same time, the Department continued to express concerns about Mother’s short-term housing arrangement, lack of an AA sponsor, inconsistent medication compliance during part of the case, her employment history, and her prior terminations involving five other children.

The Department also emphasized that A.A. was thriving in foster care, bonded to the foster parents, and receiving support for developmental delays. Yet the evidence was not one-sided. The caseworker testified that Mother had more than ten unsupervised visits, the only concrete visitation issue was one incident involving oat milk that caused vomiting, and Mother was receptive to correction. The Department also appeared to shift its permanency position, as a report shortly before trial still listed family reunification as the goal, even though the caseworker testified that was incorrect and that the actual goal had become unrelated adoption.

Issues Decided

• Whether the evidence was legally sufficient to support termination under Texas Family Code section 161.001(b)(1)(D).
• Whether the evidence was legally sufficient to support termination under Texas Family Code section 161.001(b)(1)(E).
• Whether the evidence was legally sufficient to support the finding that termination was in the child’s best interest under Texas Family Code section 161.001(b)(2).
• Whether the evidence was factually sufficient, under the clear-and-convincing standard, to support the best-interest finding.

Rules Applied

Termination under Texas Family Code section 161.001 requires proof by clear and convincing evidence of both a predicate ground under section 161.001(b)(1) and that termination is in the child’s best interest under section 161.001(b)(2).

The court’s review was guided by the familiar legal- and factual-sufficiency standards applicable to clear-and-convincing evidence:

• Under In re J.F.C., 96 S.W.3d 256 (Tex. 2002), legal sufficiency asks whether the evidence, viewed in the light most favorable to the finding, could permit a reasonable factfinder to form a firm belief or conviction that the finding was true.
• Under In re C.H., 89 S.W.3d 17 (Tex. 2002), factual sufficiency requires the appellate court to consider the entire record and determine whether disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding strongly enough to produce a firm belief or conviction.

As to best interest, Texas courts typically evaluate the record through the nonexclusive Holley factors, together with the statutory considerations in Family Code section 263.307. While predicate endangerment evidence is probative of best interest, it does not eliminate the need for a separate, record-specific analysis of the child’s present and future welfare.

Application

The court treated the case as a classic split-record termination appeal. On one side, the Department had strong evidence of historical endangerment: the domestic-violence incident that precipitated removal, Mother’s psychiatric instability at that time, her return to the relationship after removal, concerns about medication noncompliance during the case, and prior terminations involving five other children on endangerment grounds. That evidence was enough to support the predicate findings and enough, at the minimum, to make the best-interest finding legally sufficient.

But factual sufficiency required more than identifying evidence that could support termination. Looking at the full record, the court focused on the substantial disputed evidence favoring preservation of the relationship. Mother had completed the service plan. She had recent verified employment, current housing, negative drug tests, resumed medication, and substantial visitation progress, including multiple unsupervised visits. The caseworker acknowledged that Mother and A.A. were bonded. The visitation evidence itself was relatively modest in terms of negative impact; the Department identified only one concrete feeding incident, and Mother accepted guidance. The Department’s concerns about housing and employment were also vulnerable to characterization as timing and durability concerns rather than evidence of immediate danger. Likewise, the Department’s position was complicated by the inconsistency between its written permanency report and its trial position.

Against that backdrop, the court concluded that while the foster placement was unquestionably positive, evidence that a child is doing well in foster care does not automatically establish that termination is the necessary or factually supportable outcome. The appellate court appears to have viewed the Department’s proof as too dependent on Mother’s past and not sufficiently conclusive in light of her current progress. Because the disputed evidence on compliance, stability, medication, and the parent-child relationship was significant, the record did not support the required firm belief or conviction on best interest.

Holding

The court held that the evidence was sufficient to support the trial court’s predicate findings under Texas Family Code section 161.001(b)(1)(D) and (E). The domestic-violence episode, Mother’s conduct surrounding removal, and the broader endangerment evidence permitted the trial court to find statutory grounds for termination.

The court also held that the evidence was legally sufficient to support the best-interest finding under section 161.001(b)(2). In other words, when the record was viewed in the light most favorable to the judgment, a reasonable factfinder could have formed a firm belief or conviction that termination was in A.A.’s best interest.

The court nevertheless held that the evidence was factually insufficient to support best interest. Considering the entire record, including Mother’s service completion, recent stabilization, medication resumption, negative testing, housing and employment evidence, visitation history, and bond with the child, the disputed evidence was too substantial to sustain a firm belief or conviction that termination was in A.A.’s best interest. The judgment was therefore reversed and the case remanded for a new trial.

Practical Application

For trial lawyers representing parents, this is a reminder that best-interest appeals are still winnable when the record shows meaningful late-stage rehabilitation. A parent does not need a pristine record to create factual insufficiency. What matters is whether counsel develops concrete, verifiable proof of improvement and then forces the Department’s witnesses to confront it. Housing records, payroll documentation, refill histories, therapy attendance, proof of program completion, and detailed visitation testimony can move a case from “historical endangerment” to “presently disputed best interest.”

For lawyers representing the Department, children, or intervenors aligned with termination, the case highlights the danger of relying too heavily on the existence of predicate grounds and the attractiveness of the foster placement. If the parent has completed services, restored medication compliance, maintained visits, and shown some stability, the trial record must explain why those facts do not materially reduce the risk to the child. Conclusory statements that progress was “too recent” are often not enough unless tied to specific evidence showing instability, relapse indicators, poor judgment, inability to meet medical or developmental needs, or ongoing exposure to dangerous people or conditions.

The opinion also has practical force in non-termination family litigation. In modification cases, restrictions on possession, supervised access, geographic limitations, and sole-conservatorship findings often turn on narratives of instability versus improvement. This case reinforces that an appellate record is stronger when trial counsel develops both halves of the story: the historical danger and the current functioning. In close child-related cases, the side that better addresses changed circumstances usually has the superior appellate posture.

A few strategic takeaways stand out:

• Do not let “service completion” remain abstract. Tie each completed service to a concrete reduction in risk.
• Do not assume foster-placement success proves termination is necessary. Show comparative evidence, not just positive foster facts.
• Pin down timing. If the criticism is that improvement is too recent, develop exactly how recent, how consistent, and what objective benchmarks exist.
• Clean up documentary inconsistencies before trial. A permanency report still listing reunification can materially weaken the Department’s trial theme.
• In bench trials, make the judge’s fact resolution easier by organizing best-interest evidence factor by factor rather than relying on generalized testimony.

Checklists

Parent-Side Best-Interest Record Building

• Obtain and admit all service-completion certificates.
• Prove current employment with recent pay stubs, employer letters, and start-date confirmation.
• Prove housing stability with the lease, utility bills, photographs, and landlord testimony or affidavit if available.
• Document medication compliance with pharmacy refill histories, prescription records, and treating-provider testimony when possible.
• Present negative drug-test results in chronological order.
• Develop testimony showing the end of violent or unsafe relationships.
• Offer evidence of a support network outside the home, including names, roles, and availability.
• Build a detailed visitation record showing consistency, bonding, responsiveness to feedback, and lack of safety incidents.
• Address prior CPS history directly rather than evasively, and distinguish present circumstances from past conduct.
• Tie each improvement to the child’s present and future safety and emotional needs.

Department-Side Proof to Avoid Reversal on Factual Sufficiency

• Do not rely solely on predicate grounds to prove best interest.
• Reconcile all permanency reports, court reports, and witness testimony before trial.
• If arguing that progress is too recent, provide objective reasons it is not durable.
• Show specific deficiencies in the parent’s ability to meet the child’s medical, developmental, or emotional needs.
• Present evidence linking medication noncompliance or mental-health instability to parenting risk, not just diagnosis.
• If housing is challenged, explain why the housing is unsafe or unstable in practical terms.
• If employment is challenged, show why income instability affects the child’s welfare.
• Develop testimony about the child’s post-visit behavior carefully and with specificity, avoiding vague conclusions.
• Distinguish between a good foster placement and the separate legal question of whether termination is necessary.
• Make a full Holley and section 263.307 record.

Cross-Examination Targets in Close Termination Cases

• Lock in admissions that services were completed.
• Confirm negative drug testing.
• Confirm the number of successful visits, including unsupervised visits.
• Expose whether alleged compliance problems were temporary, corrected, or based on assumptions.
• Test whether the witness personally verified housing, employment, medication, and therapy information.
• Ask whether the Department considered less drastic alternatives to termination.
• Explore inconsistencies between the Department’s written reports and trial testimony.
• Pin down whether the child’s needs are being described generally or whether the witness can identify concrete parenting deficits.
• Separate concerns about past conduct from evidence about current functioning.
• Clarify whether any visitation incident resulted in actual harm or merely prompted guidance.

Bench-Trial Preservation for Appeal

• Request clear rulings on objections and offers of proof.
• Ensure key documents are admitted rather than merely referenced.
• Organize evidence around statutory and Holley factors.
• Make the court aware of disputed evidence bearing on factual sufficiency.
• Preserve complaints about conclusory testimony.
• If the evidence is mixed, emphasize the clear-and-convincing burden in closing.
• Request findings if strategically useful and available.
• Frame best interest as a separate element from predicate grounds throughout trial.

Citation

In the Interest of A.A., a Child, No. 01-25-01074-CV, 2026 WL ___ (Tex. App.—Houston [1st Dist.] June 11, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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