In the Interest of E. F. Children v. Department of Family Protective Services
CourtTexas Court of Appeals, 1st District (Houston)
Date FiledOctober 27, 2026
Docket01-26-00461-CV
StatusPublished
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Full Opinion
Opinion issued October 27, 2026.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-26-00461-CV
———————————
IN THE INTEREST OF E. F., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2023-02012J
MEMORANDUM OPINION
D.K. (“Mother”) is challenging a final decree terminating her parental rights
to her minor son E.F. (“Eddie”) based on the court’s findings that Mother committed
the predicate acts under Texas Family Code Sections 161.001(b)(1)(D), (E), and (N),
and that termination of her rights was in Eddie’s best interest.1 The final decree was
rendered after the trial court rendered a decree denying a prior petition to terminate
her rights to Eddie.
In her first four issues on appeal, Mother argues the trial court abused its
discretion by admitting and considering evidence concerning events that predated
the court’s decree denying the prior petition for termination. She argues it was error
for the trial court to consider such evidence because the Department did not properly
plead for termination of Mother’s rights under Texas Family Code Section 161.004,
and the court failed to find that she committed a predicate act under Section 161.001
before the prior decree was rendered, and that the circumstances of Eddie, his
parents, or his conservators had materially and substantially changed since rendition
of the prior decree. In her fifth and sixth issues, Mother argues there is legally and
factually insufficient evidence supporting the trial court’s findings in the final decree
(1) that she committed the enumerated predicate acts under Section 161.001 or
(2) that termination of her parental rights was in Eddie’s best interest.
We affirm the trial court’s decree of termination.
1
To protect the identity of the minor child, we will refer to Eddie and his maternal
grandparents by pseudonym, and we will refer to Eddie’s biological parents as
Mother and Father. See TEX. R. APP. P. 9.8(b).
2
Background
On August 30, 2023, the Texas Department of Family and Protective Services
(“Department”) filed its Original Petition for Protection of a Child, for
Conservatorship, and for Termination seeking to terminate Mother’s parental rights
to Eddie after she was arrested and charged with assaulting a family member. She
hit and choked C.K. (“Father”) while Father was driving and Eddie, who was five
years old, was in the car when the assault occurred.
On September 23, 2024, after Mother and the Department signed a mediated
settlement agreement resolving the case, the trial court rendered its Agreed Decree
in Suit Affecting the Parent-Child Relationship (“Agreed Decree”). The Agreed
Decree denied the Department’s request to terminate Mother’s parental rights to
Eddie, appointed Mother as Eddie’s possessory conservator, and awarded Mother
supervised visitation. The Agreed Decree named Eddie’s maternal grandparents
K.K. (“Katie”) and S.K. (“Steve”) as Eddie’s joint managing conservators.
Seven months later, on April 8, 2025, the Department filed its Original Motion
to Modify for Conservatorship, and for Termination in a Suit Affecting the Parent-
Child Relationship seeking to terminate Mother’s parental rights to Eddie. On the
same day, the trial court appointed the Department as Eddie’s temporary managing
conservator and the Department placed Eddie with a foster family.
3
Trial Testimony
The case was tried to the bench. Eddie’s current caseworker Child Advocates
volunteer testified for the Department.
A. Caseworker Ra’Noka Trotter
Ra’Noka Trotter testified that when the Department opened its 2023
investigation the Department was primarily concerned about Mother’s and Father’s
drug use and domestic violence. The current investigation began in April 2025 after
the Department learned that Mother had been transported to the hospital after she
was found asleep behind the steering wheel of a parked car. Mother, who was then
pregnant, tested positive for fentanyl, cocaine, and other substances at the hospital.
According to Trotter, the baby tested positive for drugs when it was born, and
Mother gave the baby up for adoption.
Trotter testified that the Department, which had been misled to believe that
Katie and Steve would protect Eddie from Mother, learned that Katie had been
allowing Mother to have unsupervised contact with Eddie. In addition, Steve, Katie,
and Mother had been abusing fentanyl while living with Eddie. Trotter testified that
Steve, who died of a fentynal overdose, had admitted that while Eddie lived with
them, Steve had been microdosing Katie and Mother with fentanyl because they
were addicts.
4
When asked if Mother had done anything to alleviate the Department’s
concerns since Eddie first came into the Department’s care in 2023, Trotter testified
that Mother never completed any of the remedial services required by her family
service plan. She also testified that Mother’s supervised visits with Eddie were
suspended in August 2025 because of her behavior during one of the visits.
According to Trotter, Mother “froze” periodically during the August 2025 visit, and
she was not acting normally or engaging with Eddie as she normally would. After
observing Mother’s behavior, Trotter’s supervisor immediately stopped the visit and
told Mother that she needed to participate in a drug screen, to which Mother agreed.
When Trotter and Eddie left for court an hour later, Trotter saw Mother slumped
behind her car’s steering wheel. Trotter notified her supervisor, who then called
security and told Trotter to put Eddie in her car to make sure he did not see anything.
Trotter testified that although Eddie is nonverbal, he can still sense when something
is going on. The police and EMS were also contacted.
After Trotter’s supervisor and security personnel knocked on Mother’s car
window, Mother awoke and claimed she was just tired and taking a nap while she
waited for a friend. Although Trotter’s supervisor told Mother not to drive because
she appeared to be intoxicated, Mother ignored the supervisor’s admonishment and
drove away before the police and EMS arrived. Trotter, who had been waiting in her
car, followed Mother’s car out of the parking lot. She notified her supervisor after
5
she saw Mother’s car swerving, believing that Mother was unable to drive safely.
Trotter’s supervisor called Mother and told her to stop driving because she was
driving under the influence and she could hurt someone.
Mother has not seen Eddie since the August 2025 visit. Trotter testified that
Mother’s supervised visitation would have been reinstated had she participated in
drug testing and tested negative for drugs. But according to Trotter, Mother never
submitted to further drug testing and she refused to take any substance abuse
education or treatment.
Trotter stated that Mother is employed and told him she had moved out of
Katie’s home and was living with a friend. Mother never told Trotter the friend’s
name or how long she had been living with the friend. Trotter testified that she had
been unable to visit Mother’s current home because Mother was either away from
home or made other excuses. When Trotter spoke to Mother the day before trial,
Mother told her that she knew about the trial date, and she asked Trotter which
services she could do to keep her rights from being terminated. Mother also told
Trotter that she had not been taking drug tests because she was using Xanax without
a prescription.
Trotter testified that Eddie is seven years old and is in the first grade. He has
autism and is nonverbal, but he is receiving speech therapy and play therapy. Eddie
has an intellectual disability, and he wears glasses and headphones to block noise.
6
Trotter testified that Eddie is comfortable, well-cared for and safe in his current
special needs placement, but he is not in an adoptive placement. She testified that
Mother is not prepared to parent a special needs child and she asked the court to
terminate Mother’s parental rights to Eddie to allow the Department to find an
adoptive home for him that will meet his needs and give him the same quality of
care he is receiving currently.
B. Scott Washburn
Scott Washburn with Child Advocates testified that Eddie is in a special needs
placement where he is cared for by his foster mother and her adult daughter.
Washburn, who visits Eddie monthly, testified that Eddie is doing well in his foster
home and he is getting a little closer to his caregivers. Although Eddie was nonverbal
when they first met, Eddie is beginning to communicate with him, and he can tell
Washburn goodbye. Eddie is also improving now that he has glasses. Despite his
improvements, Eddie is unable to communicate whether he misses Mother. He did
not know if Eddie’s foster mother was ready to adopt him and he had not spoken to
her adult daughter about the prospect of adoption. Although Washburn had reached
out to Mother, she never responded. Washburn testified that Eddie should stay in his
current placement, and he agreed with the Department that Mother’s rights to Eddie
should be terminated.
Mother did not call any witnesses or offer any exhibits into evidence.
7
C. Exhibits
Among other exhibits, the trial court admitted into evidence—without
objection from Mother—the removal affidavit attached to the Department’s April 8,
2025 petition (Ex. 1), the Agreed Decree (Ex. 3), Mother’s June 2, 2025 Family Plan
(Ex. 8), Mother’s post-Agreed Decree drug test results (Ex. 11), the Department’s
January 7, 2026 Permanency Report (Ex. 17), and the January 2026 Child
Advocate’s Report (Ex. 18).
Removal Affidavit
The removal affidavit reflects that the Department opened an investigation
into new allegations of neglectful supervision and physical neglect of Eddie by
Mother, Katie, and Steve in November 2024, two months after the Agreed Decree
was rendered after receiving the first of three intake calls about the family from
hospital and school officials. On November 22, 2024, hospital officials notified the
Department that Eddie’s grandfather Steve had overdosed on fentanyl on October 1,
2024. While he was receiving inpatient rehab, Steve told medical personnel that
Mother and Katie were addicts and while Eddie lived with them, Steve had been
microdosing Mother and Katie with cocaine and fentanyl to wean them off the illegal
drugs.
After Steve died on November 26, 2024, Mother, Eddie, and Katie moved to
a new home and they enrolled Eddie in school in mid-February 2025. Officials at
8
the school notified the Department that Eddie, who was six years old, autistic, and
nonverbal, had arrived at school wearing an old and heavily soiled pull-up with dried
blood and feces underneath a clean pull-up. When school personnel helped Eddie
change out of his soiled pull up, they noticed that Eddie had open sores that had
started to bleed and his rectum was red and irritated. School officials also reported
that Eddie often arrived at school wearing the same clothes he wore the day before,
smelling as though he had not bathed recently, with his hair in his eyes, and his
fingernails in need of trimming.
The Department was subsequently contacted by medical personnel after
Mother, who was due to give birth in May 2025, admitted to using fentanyl during
her pregnancy and asked them to arrange for her to receive treatment from a
methadone clinic. On March 19, 2025, the Department ruled out the allegations of
neglectful supervision and physical neglect and closed the investigation after putting
a safety plan in place requiring Katie to supervise all contact between Mother and
Eddie.
The Department opened the current investigation on April 2, 2025, after
receiving a referral stating that Mother was taken to the hospital the day before
because she had been “found asleep in her vehicle while driving on the road.” Mother
tested positive for fentanyl, cocaine, benzodiazepines, and marijuana at the hospital,
and she reported that she last used fentanyl the previous Sunday. The Department
9
spoke with school officials, Katie, and Mother as part of its initial investigation.
Eddie’s teacher told the Department that Eddie rides the special education bus to and
from school, and during the six weeks Eddie had been in attendance, the bus brought
Eddie back to the school at least three times because there was no one to pick him
up from the bus stop. Eddie often misses the bus in the mornings, and Mother or an
adult male will bring him to school. According to Eddie’s teacher, the first time
Mother brought Eddie to school, Mother “smelled of weed” and Eddie was “wearing
an old Pull-Up with a new one on top of the old, dirty one” and his “bottom was
red.” She stated that Eddie’s clothes sometimes smell like they have not been washed.
On another occasion, the principal interacted with Mother when she brought Eddie
to school, and the principal “felt like [Mother] was under the influence of an illegal
substance.”
Eddie’s teacher stated that although Katie was Eddie’s legal guardian, she
rarely saw Katie at school and most of her interactions were with Mother. Katie told
the teacher that she was “allowing this because she is trying to teach [Mother] how
to parent” and giving Mother “a chance to make amends.” According to Eddie’s
teacher, Katie did “not seem to understand that she is supposed to be the one to care
for” Eddie and she seems to lack “grandmotherly concern” for the boy.
Eddie’s teacher told the Department that Mother “would not understand what
they were saying” during their Admission, Review and Dismissal (“ARD”)
10
meetings2 and “she seems spacey, out of it or possibly on something.” The teacher
stated that she does not know “if past drug use has hurt mom’s brain,” but
“something seems to be kind of wrong with [Mother’s] cognitive state.” Eddie’s
teacher was concerned for Eddie because he was unable tell anyone what was
happening and Mother “does not seem consistently capable of parenting.” The
teacher told the Department that she was “unsure if [Mother and Katie] know how
to meet all of his special needs.”
Mother told the Department that she lives with Katie and Eddie and Eddie is
moderately autistic and has a speech impairment. She told the Department that she
tested positive for fentanyl because she had taken “a piece of a fake Xanax,” she last
used marijuana over a week ago, and she did not know why she tested positive for
benzodiazepines. She reported that she had last used cocaine a week and a half ago
and Eddie was not with her at the time. Mother denied using drugs the day she was
found asleep in her car. She told the Department that she did not use drugs every
day, but she wanted to do methadone to prevent forming a habit. She said that Katie
does not use any illegal substances and no one else who frequents the home uses
drugs. Mother stated that she did not use any substances that week or last week and
2
See In re D.M., 191 S.W.3d 381, 385 n.1 (Tex. App.—Austin 2006, pet. denied)
(“In Texas, special education students receive individualized instruction that
comports with an education plan developed by a committee of school
administrators, teachers, and parents called the admission, review, and dismissal
committee.”).
11
claimed that Katie was not aware that Mother was using drugs again until a couple
of weeks ago. Mother stated that she was never home when she used drugs and “it
was just a couple instances when she was weak.”
Katie told the Department that she had experimented with multiple illegal
drugs when she was a teenager, but she had not used any illegal substances within
the last twenty-five to thirty years. She told the Department that she did not
understand “why she is on trial when this is not about her” and she refused to take a
hair follicle test. Katie stated that she had not been aware that Mother was continuing
to use drugs “until a couple weeks ago during the last case that was closed.” Katie
stated that either she or Mother walks Eddie to the bus stop in the morning and meets
him at the bus stop in the afternoon, and either she or Mother gives Eddie a nightly
bath. Katie admitted that she allowed Mother and Father to have unsupervised
contact with Eddie because she is the only person with a job and she “cannot monitor
every part of the day.”
According to the removal affidavit, Mother and Katie had negative urine tests,
but they refused to submit to hair follicle drug tests despite the Department’s
concerns of substance use. It further states that Eddie is “unable to self-report and
unable to self-protect” and although Katie knows that she is required to supervise all
contact between Eddie and his parents, she nevertheless allows Mother and Father
12
to have unsupervised contact with Eddie, “which further puts the vulnerable aged
child at risk of harm.”
Post-Agreed Decree
Mother’s post-Agreed Decree drug test results were admitted without
objection. They reflect that Mother’s hair and urine tested positive for illegal drugs
in June 2025.
Child Advocates Report
The Child Advocates report dated January 22, 2026 states that Eddie’s
psychological assessment concluded that Eddie falls in the severe range of the autism
spectrum disorder and is considered non-verbal. Along with autism spectrum
disorder, intellectual developmental disorder, moderate severity, unspecified trauma
and stress-related disorder, ADHD, child neglect confirmed, developmental disorder
of speech and language and other upbringing away from parents, Eddie also scored
in the significantly developmentally delayed range. Eddie, who was seven years old
and had been diagnosed with primary care incontinence without sensory awareness,
wore pull ups because he was not potty trained. He also needed a lot of dental work
and eyeglasses when he was removed. According to the report, Eddie is “extremely
vulnerable due to his age and diagnosis,” he needs direct supervision at all times,
and he requires significant interventions such as special education resources, speech
and occupational therapy, ABA therapy, play therapy and special sign language
13
instruction. Eddie’s foster mother told Child Advocates that Eddie feels secure in
her home, and he is developing a bond with her.
Final Decree
During closing arguments, the Department and Eddie’s attorney ad litem
asked the court to terminate Mother’s parental rights under Sections
161.001(b)(1)(D), (E), and (N). After hearing the testimony and counsel’s
arguments, the trial judge announced that she was “going to terminate [Mother’s]
rights on (D), (E) and (N).”
On April 15, 2026, the trial court rendered a final decree terminating Mother’s
parental rights to Eddie based on the court’s findings that Mother committed the
predicate acts under Sections 161.001(b)(1)(D), (E), and (N), and that termination
of her rights was in Eddie’s best interest. The court appointed the Department as
Eddie’s sole managing conservator.3
This appeal followed.
Termination of Mother’s Parental Rights to Eddie
In her first four issues on appeal, Mother argues the trial court abused its
discretion by admitting and considering evidence concerning events predating the
trial court’s prior decree denying termination of Mother’s rights. She argued the trial
3
The final decree also terminated Father’s parental rights to Eddie. Father is neither
challenging the termination of his rights nor is he a party to this appeal.
14
court impermissibly considered such evidence because the Department did not
properly plead for termination of Mother’s rights under Texas Family Code Section
161.004, and the court failed to find that she committed a predicate act under Section
161.001 before the prior decree was rendered, and that the circumstances of Eddie,
his parents, or his conservators had materially and substantially changed since
rendition of the prior decree.
In her fifth and sixth issues, Mother argues there is legally and factually
insufficient evidence supporting the trial court’s findings in the final decree (1) that
she committed the enumerated predicate acts under Section 161.001 or (2) that
termination of her parental rights was in Eddie’s best interest.
A. Standard of Review and Applicable Law
A parent’s rights to the “companionship, care, custody, and management” of
his or her child is a constitutional interest “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (quoting Lassiter v. Dep’t
of Soc. Servs., 452 U.S. 18, 27 (1981)); see In re M.S., 115 S.W.3d 534, 547 (Tex.
2003). The United States Supreme Court has emphasized that “the interest of [a]
parent[ ] in the care, custody, and control of [her] children . . . is perhaps the oldest
of the fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville,
530 U.S. 57, 65 (2000). Likewise, the Texas Supreme Court has concluded that
“[t]his natural parental right” is “essential,” “a basic civil right of man,” and “far
15
more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)
(internal quotations omitted); see also In re R.J.G., 681 S.W.3d 370, 373 (Tex. 2023)
(“Both this Court and the Supreme Court of the United States have long recognized
the fundamental right of parents to make decisions concerning the care, custody, and
control of their children.”). Consequently, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Holick, 685 S.W.2d at 20.
A court may terminate a parent’s rights to a child under Family Code Section
161.001 after denial of a prior petition for termination of the parent-child
relationship if the Department establishes, by clear and convincing evidence, that (1)
after the date of the prior order, the parent engaged in one or more of the enumerated
predicate acts or omissions under Section 161.001(b)(1), and (2) termination is in
the child’s best interest. See TEX. FAM. CODE § 161.001(b); In re D.N., 405 S.W.3d
863, 870 (Tex. App.—Amarillo 2013, no pet.). “Both elements must be established,
and termination may not be based solely on the best interest of the children as
determined by the trier of fact.” In re M.A.J., 612 S.W.3d 398, 406 (Tex. App.—
Houston [1st Dist.] 2020, pet denied).
Under Section 161.004, a court may terminate the parent-child relationship if
the Department establishes by clear and convincing evidence that (1) termination is
in the child’s best interest, (2) the new petition to terminate was filed after the date
16
of the prior order denying termination, (3) the parent committed a predicate act listed
under Section 161.001 prior to the entry of the prior order denying termination, and
(4) the circumstances of the child, parent, sole managing conservator, possessory
conservator, or other party affected by the prior order have “materially and
substantially changed” since entry of the prior order. TEX. FAM. CODE § 161.004(a).
Using Section 161.004 is “the only way that the trial court can terminate a parent’s
parental rights to a child based on evidence presented in a prior termination
proceeding regarding the parent-child relationship.” In re H.L.H., No. 10-16-00254-
CV, 2018 WL 1321750, at *13 (Tex. App.—Waco Mar. 14, 2018, no pet.) (mem.
op.); see also TEX. FAM. CODE § 161.004(b) (stating at hearing under Section
161.004, “the court may consider evidence presented at a previous hearing in a suit
for termination of the parent-child relationship of the parent with respect to the same
child”).
Clear and convincing evidence is “the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” TEX. FAM. CODE § 101.007. When
reviewing the legal sufficiency of the evidence in a case involving termination of
parental rights, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that there existed grounds for termination
under Section 161.001(b)(1) and that termination was in the best interest of the child.
17
See id. §§ 161.001(b)(1), (2); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We look
at all the evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its finding
was true. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (citing In re J.F.C., 96 S.W.3d
at 266); see also In re J.O.A., 283 S.W.3d 336, 344–45 (Tex. 2009). We assume the
“factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so.” In re J.F.C., 96 S.W.3d at 266; see also In re A.C., 560 S.W.3d at 630–
31. We must disregard all evidence that a reasonable factfinder could have
disbelieved or found not to be credible. In re J.F.C., 96 S.W.3d at 266. But this does
not mean we must disregard all evidence that does not support the finding. Id.
Because of the heightened standard in termination cases, we must also be mindful
of any undisputed evidence contrary to the finding and consider that evidence in our
analysis. Id. If we determine that no reasonable trier of fact could form a firm belief
or conviction that the matter that must be proven is true, we must hold the evidence
to be legally insufficient and render judgment in favor of the parent. Id.
When conducting a factual sufficiency review in a termination case, we must
consider the entire record. In re A.C., 560 S.W.3d at 631; In re J.F.C., 96 S.W.3d at
266. Unlike in a legal sufficiency review, when assessing the factual sufficiency of
the evidence, we cannot disregard disputed evidence that a reasonable factfinder
could not have credited in favor of the finding. In re J.F.C., 96 S.W.3d at 266; see
18
also In re A.C., 560 S.W.3d at 630 (“The distinction between legal and factual
sufficiency lies in the extent to which disputed evidence contrary to a finding may
be considered.”). “Evidence is factually insufficient if, in light of the entire record,
the disputed evidence a reasonable factfinder could not have credited in favor of a
finding is so significant that the factfinder could not have formed a firm belief or
conviction that the finding was true.” In re A.C., 560 S.W.3d at 631 (citing In re
J.F.C., 96 S.W.3d at 266).
Under both legal and factual sufficiency standards, the factfinder is the sole
arbiter of a witness’ credibility and demeanor and the weight of the evidence. In re
J.O.A., 283 S.W.3d at 346; see In re R.R.A., 687 S.W.3d 269, 279 n.50 (Tex. 2024)
(“Reviewing courts . . . must defer to the factfinder’s judgment as to the credibility
of the witnesses and the weight to give their testimony, including reasonable and
logical inferences from the evidence.”).
B. Endangerment Findings Under Sections 161.001(b)(1)(D) and (E)
In her fifth issue, Mother argues there is legally and factually insufficient
evidence supporting the trial court’s findings under Section 161.001(b)(1)(D) that
she endangered Eddie by knowingly placing or knowingly allowing him to remain
in conditions or surroundings which endangered his physical or emotional well-
being or under Section 161.001(b)(1)(E) that she endangered Eddie by engaging in
conduct or knowingly placing him with persons who engaged in conduct that
19
endangered his physical or emotional well-being. See TEX. FAM. CODE
§§ 161.001(b)(1)(D) & (E).
The trial court announced at the conclusion of trial that it was terminating
Mother’s parental rights to Eddie based on Sections 161.001(b)(1)(D), (E) and (N)
and the final decree memorializing the trial court’s rulings neither mentions Section
161.004 nor, as Mother points out, includes express findings under Sections
161.004(a)(3) and (4). The record thus reflects that although the Department pleaded
for termination of Mother’s parental rights under Sections 161.001 and 161.004, the
trial court terminated Mother’s rights to Eddie based solely on Section 161.001. Our
analysis of Mother’s fifth and sixth issues is thus limited to evidence of events that
occurred after the Agreed Decree was rendered on September 23, 2024. See In re
D.N., 405 S.W.3d at 870 (“[A] trial court can terminate the parent-child relationship,
even though it previously denied termination in another order, using section 161.001
alone if termination is sought on evidence of acts or omissions having occurred since
the earlier order in which termination was denied.”) (emphasis in original).
1. Applicable Law
Sections 161.001(b)(1)(D) and (E) authorize the termination of a parent’s
rights to their child when the parent has endangered the child’s physical or emotional
well-being. The term “endanger,” as used in Sections 161.001(b)(1)(D) and (E),
encompasses a broad “array of conduct that ‘expose[s a child] to loss or injury’ or
20
‘jeopardize[s]’ the child.” In re R.R.A., 687 S.W.3d 269, 277 (Tex. 2024) (quoting
Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)); see also In
re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(stating parent’s conduct that subjects child to life of uncertainty and instability
endangers child’s physical and emotional well-being). “[E]ndangering conduct is
not limited to actions directed towards the child.” In re J.O.A., 283 S.W.3d at 345;
see also In re T.G.R.-M., 404 S.W.3d 7, 13 (Tex. App.—Houston [1st Dist.] 2013,
no pet.). The danger to the child may be inferred from parental misconduct, even if
the conduct is not directed at the child and the child suffered no actual injury. See
Boyd, 727 S.W.2d at 533 (stating although endanger means “more than a threat of
metaphysical injury or the possible ill effects,” “it is not necessary that the conduct
be directed at the child or that the child actually suffers injury”).
In In re R.R.A., the Supreme Court of Texas held that although illegal drug
use alone may be insufficient to show endangerment, a factfinder reasonably can
find endangerment to the child’s physical or emotional well-being under (D) and (E)
“[w]hen a pattern of drug use is coupled with credible evidence of attendant risks to
employment, housing, and prolonged absence from the children.” In re R.R.A., 687
S.W.3d at 281. As the court explained:
While illegal drug use alone may not be sufficient to show
endangerment, a pattern of drug use accompanied by circumstances that
indicate related dangers to the child can establish a substantial risk of
harm. A reviewing court should not evaluate drug-use evidence in
21
isolation; rather, it should consider additional evidence that a factfinder
could reasonably credit that demonstrates that illegal drug use presents
a risk to the parent’s “ability to parent.”
Id. at 278 (quoting In re J.O.A., 283 S.W.3d at 345) (emphasis in original); see also
In re A.V., 697 S.W.3d 657, 659 (Tex. 2024) (explaining that R.R.A. requires
“holistic endangerment review”).
Under Section 161.001(b)(1)(D), a parent’s rights may be terminated if clear
and convincing evidence establishes the parent “knowingly placed or knowingly
allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child[.]” TEX. FAM. CODE
§ 161.001(b)(1)(D). This subsection concerns the child’s living environment prior
to removal, rather than the parent’s conduct, although parental conduct may produce
an endangering environment. See Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied); see also In re A.J.A., No. 01-21-
00299-CV, 2021 WL 5702183, at *7 (Tex. App.—Houston [1st Dist.] Dec. 2, 2021,
pet. denied) (mem. op.). Thus, when seeking termination under Subsection (D), the
Department must establish that the child’s living conditions “pose a real threat of
injury or harm to the child.” In re N.R., 101 S.W.3d 771, 776 (Tex. App.—Texarkana
2003, no pet.). The child’s environment refers to the acceptability of the child’s
living conditions as well as the conduct of parents or others in the home. In re S.R.,
452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
22
Termination under Subsection D can be based on a single act or omission by the
parent. In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—Texarkana 2015, no pet.).
A parent’s rights may be terminated under Section 161.001(b)(1)(E) if clear
and convincing evidence establishes the parent “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). Unlike
Subsection (D), termination under Subsection (E) focuses on the parent’s conduct
and requires “more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required.” In re J.T.G., 121 S.W.3d 117,
125 (Tex. App.—Fort Worth 2003, no pet.); see also Jordan, 325 S.W.3d at 723.
Subsection 161.001(b)(1)(E) asks whether “the endangerment of the child’s physical
well-being was the direct result of the parent’s conduct, including acts, omissions,
or failures to act.” In re J.T.G., 121 S.W.3d at 125. Thus, the relevant inquiry under
Section 161.001(b)(1)(E) is whether there is evidence the parent engaged in a course
of conduct that endangered the child’s physical or emotional well-being. Jordan,
325 S.W.3d at 723. Because the evidence pertaining to Subsections (D) and (E) is
interrelated, we may conduct a consolidated review. In re M.R.J.M., 280 S.W.3d at
503.
23
2. Analysis
Mother argues there is legally and factually insufficient evidence supporting
the trial court’s endangerment findings under Sections 161.001(b)(1)(D) and (E)
because most of the evidence supporting the findings is unsubstantiated or hearsay,
there is little or no evidence about Eddie’s living environment prior to his removal
in April 2025, and the record is “so devoid of facts regarding Mother’s use of drugs,”
which is the only evidence that could support the trial court’s finding of
endangerment under Subsection (E), “that no reasonable trier of fact can draw any
conclusions from this record.”4 Mother argues that Eddie had been living in a stable
home with Katie and Mother prior to his removal on April 8, 2025, that he never
suffered physical abuse or injuries while living with Mother and Katie, and that his
autism and educational needs were being addressed at school.
Mother and Eddie lived with Katie and Steve after the trial court signed the
Agreed Decree on September 23, 2024. They lived there until Steve died from a
fentanyl overdose in November of that year. Mother, Eddie, and Katie subsequently
moved and enrolled Eddie in a new school in mid-February 2025. Eddie, who is
autistic, nonverbal, and significantly developmentally delayed, attended special
education classes and rode the special education bus to and from school. According
4
To the extent Mother is attempting to raise a hearsay challenge, Mother did not
object to any evidence at trial on hearsay grounds and thus failed to preserve this
issue for appeal. See TEX. R. APP. P. 33.1.
24
to his teacher, Eddie frequently missed the school bus in the morning, and the bus
brought Eddie back to the school at least three times during the six weeks he attended
the school because no one met him at the bus stop.
Eddie’s teacher told the Department in April 2025 that although Katie was
Eddie’s legal guardian, she rarely saw Katie at school and Katie did “not seem to
understand that she is supposed to be the one to care for” Eddie. According to the
teacher, she primarily interacted with Mother, and it was Mother or an adult male
who brought Eddie to school when he missed the bus or picked him up in the
afternoon, not Katie. Katie told the teacher that she allowed Mother to care for Eddie
because she was trying to teach Mother how to be a parent. Katie, who did “not seem
to understand that she is supposed to be the one to care for” Eddie, admitted to the
Department that Mother regularly bathed Eddie and took him to and from school and
she did not supervise Mother’s interactions with Eddie.
Although Katie was Eddie’s managing conservator and Mother was only a
possessory conservator with supervised visitation rights to Eddie, the trial court
reasonably could have inferred from this evidence that Mother was one of Eddie’s
primary caregivers from at least mid-February 2025 until his removal on April 8,
2025. Evidence that a parent allowed a child to live in unsanitary conditions and
neglected the child’s personal hygiene and dental needs support a finding of
endangerment under Sections 161.001(b)(1)(D) and (E) and a finding that
25
termination of the parent’s rights is in the child’s best interest. See In re L.W., No.
01-18-01025-CV, 2019 WL 1523124, at *15–16 (Tex. App.—Houston [1st Dist.]
Apr. 9, 2019, pet. denied) (mem. op.). According to Eddie’s teacher, Eddie regularly
went to school wearing dirty clothes and he smelled like he had not bathed recently.
Mother, who was one of the adults responsible for Eddie’s hygiene and educational
needs, brought Eddie to school one day wearing an old pull-up that was heavily
soiled with dried blood and feces. When helping Eddie change into a clean pull up,
school personnel noticed that Eddie’s rectum was red and irritated and he had open
sores that had started to bleed. In addition to his poor hygiene, Eddie also needed
extensive dental work when he came into the Department’s care. According to the
Department’s January 7, 2026 permanency report, which was admitted without
objection, Eddie’s nutriti