Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-26-00296-CV
IN THE INTEREST OF E.J.G.-S., E.G.A., and E.J.A., Children
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2025-PA-00978
Honorable Raul Perales, Judge Presiding
Opinion by: H. Todd McCray, Justice
Sitting: Irene Rios, Justice
Lori Massey Brissette, Justice
H. Todd McCray, Justice
Delivered and Filed: October 7, 2026
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Mother appeals the trial court’s order terminating her parental rights to her three children,
E.J.G.-S., E.G.A., and E.J.A. 1 Mother’s court appointed appellate counsel filed an Anders brief
concluding there are no arguable grounds for reversal. Father likewise appeals the trial court’s
termination order to his two children, E.G.A. and E.J.A. He challenges the sufficiency of the
evidence supporting the trial court’s findings under Texas Family Code § 161.001(b)(1)(D) and
(E), as well as the trial court’s finding that termination was in the children’s best interests.
1
To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to appellants as “Mother” and “Father” and to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
04-26-00296-CV
Because we find the evidence is legally insufficient to support the trial court’s finding as
to Father under statutory ground (D) and factually insufficient to support the finding under
statutory ground (E), we reverse and remand the portion of the trial court’s order terminating
Father’s parental rights. In all other respects, we affirm the trial court's order.
BACKGROUND
This case involves Mother’s three children, E.J.G.-S., E.G.A., and E.J.A. 2 Father is the
father of E.G.A. and E.J.A. The Department of Family and Protective Services became involved
with the family based on concerns regarding both parents’ alcohol use as well as domestic violence
between Mother and Father. Mother was identified as the perpetrator of the domestic violence and
Father as the victim. Although the children were not physically injured during the domestic
violence incidents, the Department was concerned about their exposure to the parents’ relationship
and alcohol use.
Before seeking removal, the Department attempted to address its concerns through a safety
plan. That plan was unsuccessful after an incident in which Mother became intoxicated, took her
uncle’s vehicle, crashed into parked vehicles in the neighborhood, and returned to the residence
loudly demanding to be allowed inside. At the time of trial, Mother also had a pending charge for
driving while intoxicated with one of the children in the vehicle. On May 30, 2025, the Department
filed its petition seeking protection of the children, temporary managing conservatorship, and
termination of the parents’ rights.
The trial court ordered Mother and Father to complete family service plans designed to
address the Department’s concerns. Mother’s services included substance-abuse treatment,
parenting classes, domestic violence services, and individual counseling. Mother began substance2
At the time of trial, E.J.G.-S. was 12 years old, E.G.A. was 7 years old, and E.J.A. was 3 years old.
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abuse treatment early in the case, including a thirty-day inpatient program beginning in June 2025.
She later relapsed and completed a second forty-five-day inpatient stay. Following this stay,
Mother refused to go into a sober living facility. She also failed to drug test for three months
following her release. When she did perform a drug test in February of 2026, the results were
concerning.
Mother’s participation in the remaining services was intermittent and she had not
completed her court-ordered services by trial. The Department’s permanency specialist testified
Mother was unsuccessfully discharged from counseling one week before trial. Mother visited
E.G.A. and E.J.A. during the case, but the caseworker testified that the visits were inconsistent
because of her repeated treatment. The caseworker further testified that Mother did not have stable
housing or employment.
Father’s service plan likewise required him to address substance abuse and domestic
violence concerns, participate in parenting classes and individual counseling, submit to drug and
alcohol testing, and maintain stable housing and employment. Father received his service plan in
June 2025 but was incarcerated from July 23 until approximately October 14. Although he resumed
visitation after his release, he did not begin his court-ordered parenting, domestic violence,
substance abuse, and individual counseling services until approximately one month before trial.
The parties disputed the reason for the delay. The Department maintained Father had the
information and referrals necessary to engage in services, while Father attributed the delay to
problems with the referrals during the caseworker’s leave. By the time of trial, Father had begun
all of his required services in earnest and was making progress toward completion.
Father also maintained regular contact with E.G.A. and E.J.A. After his release from
incarceration, he attended each scheduled visit. The Department’s permanency specialist testified
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the visits generally went well and described Father as a hands-on parent who had been the
children’s primary caregiver during his relationship with Mother. Father brought home-cooked
meals for the children, redirected them appropriately, and appeared to have a connection with
them.
The children remained in separate placements during the case. E.J.G.-S. had been living
with his biological father and his stepmother since a month prior to removal, when he called his
father to pick him up following an incident with Mother. He remained with them after removal
and, by trial, E.J.G.-S. was doing well, had improved his grades, and was participating in
extracurricular activities. He continued to decline contact with Mother despite participating in
counseling.
E.G.A. and E.J.A. were placed together with their maternal aunts. The placement became
licensed as a foster-to-adopt home. The children received therapy and other services, and their
caregivers reported improvement in their emotional well-being and development. E.G.A.’s school
performance also improved. At trial, their caregiver testified the children were happy in the home
and wanted to remain there. The caregivers intended to adopt the children if Mother’s and Father’s
parental rights were terminated.
The trial court held a bench trial where it heard testimony from the Department’s
permanency specialist; one of E.G.A.’s and E.J.A.’s caregivers; and Father. At the conclusion of
trial, the court found by clear and convincing evidence that Mother and Father had endangered the
children under subsections (D) and (E) and that termination of their parental rights was in the
children’s best interest. The court terminated Mother’s parental rights to all three children and
Father’s parental rights to E.G.A. and E.J.A. The Department was appointed managing conservator
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of E.G.A. and E.J.A. E.J.G.-S.’s biological father was appointed as managing conservator of
E.J.G.-S. Mother and Father now appeal.
ANALYSIS
Father’s Appeal
Both parents’ parental rights were terminated pursuant to subsections (D) and (E) of section
161.001(b)(1) of the Texas Family Code. Father challenges the trial court’s findings under
subsections (D) and (E), alleging that the evidence is both legally and factually insufficient to
support the findings. He further contends that the evidence is likewise insufficient to support the
trial court’s best interest finding.
A. Applicable Law and Standard of Review
Involuntary termination of parental rights requires the Department to prove both that the
parent committed a predicate act under subsection 161.001(b)(1) of the Family Code and that
termination is in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b). Given the
profound consequences of terminating a parent’s rights to her child, the Department must prove
both elements by clear and convincing evidence. See TEX. FAM. CODE ANN. § 161.206(a); In re
H.S., No. 24-0307, 2026 WL 1614496, at *7-8 (Tex. June 5, 2026). Clear and convincing evidence
is the degree of proof that will produce in the factfinder a firm belief or conviction as to the truth
of the allegations. In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (citing TEX. FAM. CODE ANN. §
101.007). This heightened standard of proof necessarily extends to appellate review in such cases.
In re A.C., 560 S.W.3d 624, 630-31 (Tex. 2018); In re G.M.M., 721 S.W.3d 679, 683 (Tex. App.—
San Antonio 2025, no pet.).
When reviewing the sufficiency of the evidence supporting a trial court’s order of
termination, we apply well-established standards of review. See In re J.O.A., 283 S.W.3d 336, 344
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(Tex. 2009). In reviewing the legal sufficiency of the evidence, we review 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 the finding was true. A.C., 560 S.W.3d at 630–31. In
comparison, when reviewing factual sufficiency, we consider and weigh all of the evidence,
including disputed or conflicting evidence, to determine whether the evidence contrary to the
finding would prevent a reasonable factfinder from forming a firm belief or conviction that the
finding is true. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). We give due deference to the
factfinder’s determinations, remembering that the factfinder is the sole judge of the weight and
credibility of the evidence. In re R.R.A., 687 S.W.3d 269, 279 n.50 (Tex. 2024) (noting reviewing
court “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. Texas Family Code section 161.001(b)(1)(D) and (E)
A trial court may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent knowingly placed or knowingly allowed the child to remain
in conditions or surroundings that endangered the child’s physical or emotional well-being or
engaged in conduct or knowingly placed the child with persons who engaged in conduct that
endangered the child’s physical or emotional well-being. TEX. FAM. CODE ANN. §
161.001(b)(1)(D), (E). To endanger a child under subsections (D) and (E) means to expose a child
to loss or injury or to jeopardize the child’s emotional or physical well-being. In re J.W., 645
S.W.3d 726, 748 (Tex. 2022); Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987). Endangering conduct need not be directed at the child, and the child need not actually suffer
injury. J.W., 645 S.W.3d at 748. “Conduct that subjects a child to a life of uncertainty and
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instability endangers the physical and emotional well-being of a child.” In re S.P.A.T., No. 04-25-00074-CV, 2025 WL 2610459, at *5 (Tex. App.—San Antonio Sept. 10, 2025, pet. denied).
Although both subsections focus on endangerment, they differ in the source of the danger
to the child. In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).
Subsection (D) concerns the child’s environment and living conditions and generally focuses on
evidence of the environment before removal. See In re P.H.S., No. 04-25-00838-CV, 2026 WL
1828577, at *3 (Tex. App.—San Antonio June 24, 2026, no pet. h.). By contrast, subsection (E)
focuses on the parent’s conduct, including acts, omissions, and failures to act that create a
voluntary, deliberate, and conscious course of conduct endangering the child’s well-being. In re
M.J.M.L., 31 S.W.3d 347, 350–51 (Tex. App.—San Antonio 2000, pet. denied). Because
subsection (E) focuses on a parent’s course of conduct, the relevant inquiry may encompass
conduct occurring outside the child’s presence or after removal. In re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *4–5 (Tex. App.—San Antonio Aug. 21, 2019, pet. denied).
1. Subsection (D)
There is evidence from which the trial court could find that E.G.A. and E.J.A. lived in an
endangering environment. The Department became involved because of alcohol use and domestic
violence in the parents’ relationship. Thus, the existence of potentially dangerous conditions in the
household was supported by the evidence. However, the question is whether the Department
presented evidence that clearly and convincingly established that Father knowingly placed or
knowingly allowed the children to remain in those conditions. See TEX. FAM. CODE ANN. §
161.001(b)(1)(D).
The evidence concerning Father’s role in creating or contributing to those conditions was
limited. Although the Department identified alcohol use as one of the reasons for its involvement,
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the caseworker did not identify any pre-removal instance in which Father abused alcohol, was
intoxicated—either while caring for the children or not—or otherwise exposed the children to
danger through alcohol use. The evidence that a visitation monitor reported Father smelled of
alcohol, that Father later had a concerning hair follicle test, and that he missed a requested drug
test all arose after the children were removed. Such evidence ordinarily bears little on subsection
(D) because a parent whose children have been removed generally has no control over their
conditions or surroundings. See J.W., 645 S.W.3d at 749; In re R.S.-T., 522 S.W.3d 92, 109 (Tex.
App.—San Antonio 2017, no pet.).
The evidence concerning domestic violence was similarly general. The caseworker
testified that domestic violence was one of the reasons for the Department’s involvement, but she
did not describe any particular incident involving Father, the frequency or severity of the violence,
or Father’s conduct during the alleged incidents. To the extent she identified the parents’ respective
roles, she testified that Mother was the perpetrator and Father was the victim.
Father’s family plan contains broader allegations. It states that Father and Mother had
engaged in physical altercations in the children’s presence and expresses concerns regarding
father’s alcohol and drug use. Father objected to hearsay contained in the family plan, and the trial
court sustained the objection. But even considering all the allegations contained in the plan, they
provide no details concerning any particular instance of violence or of Father’s conduct with
respect to that violence. Likewise, the plan’s generalized allegations of substance abuse identify
no instance on which Father used alcohol or drugs in the children’s presence, cared for them while
intoxicated, or otherwise exposed them to danger through substance use.
By contrast, the Department presented specific evidence concerning Mother’s conduct.
Mother was arrested for domestic violence and had a pending DWI charge involving the children.
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Further, the safety plan failed after Mother became intoxicated, took her uncle’s vehicle and struck
numerous parked vehicles. As to the latter incident, the record does not show Father participated
in any way, knew Mother would drive while intoxicated, placed the children in a vehicle with her,
allowed her to return to the home after the incident, or otherwise took or failed to take some
identified action that exposed the children to that danger. Although this evidence supports a finding
that Mother’s conduct contributed to an endangering environment, the Department presented no
comparable evidence concerning Father’s conduct.
The fact that Father was the victim of domestic violence does not itself resolve the
subsection (D) inquiry. However, it is significant in assessing whether the evidence concerning
domestic violence supports termination of his parental rights. In Lewelling v. Lewelling, the Texas
Supreme Court cautioned against treating a parent’s status as a victim of domestic violence as
evidence against that parent, finding that evidence that a parent was battered by a spouse did not
establish that placing the child with that parent would cause harm—even where the victim had
continued contact with the abusive spouse. 796 S.W.2d 164, 167-68 (Tex. 1990).
More recently, in In re A.P., Justice Young cautioned that termination analysis should not
be reduced to terminating a parent’s rights because of the parent’s status as a domestic-violence
victim. 672 S.W.3d 132, 132–33 (Tex. 2023) (Young, J., concurring in denial of petition for
review). And even more recently, the Court reiterated that “when a parent’s rights may be
terminated based on a spouse’s violence, the department should proceed with particular caution—
especially when the spouse’s violence is not directed at the children.” H.S., 2026 WL 1614496, at
*9-10. The Court, in H.S., relied on both A.P. and Lewelling in emphasizing the need to examine
the victim parent’s acts or omissions rather than treating the abusive parent’s violence as evidence
against the victim parent. Id. Importantly, H.S. did not relieve a victim parent of the responsibility
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to protect a child from an endangering environment; rather, it recognized that the analysis must
account for the particular circumstances and conduct of that parent alone. Id. at 11.
The facts here raise precisely that concern. The evidence establishes that Father remained
in a troubled relationship in which Mother engaged in violent and alcohol-related conduct. But it
does not identify with comparable clarity what Father knowingly did or permitted that exposed
E.G.A. and E.J.A. to endangering conditions. Nor does Father’s family plan contain anything but
generalized allegations of physical altercations in the children’s presence. Even considering those
altercations, the record does not identify what Father did during those altercations or otherwise
provide specific evidence from which the trial court could determine that Father’s conduct created
or contributed to an endangering environment. This distinction is important because subsection
(D) does not authorize termination merely because an endangering environment existed. Instead,
the Department must prove the statutory connection between that environment and the particular
parent whose rights are being terminated. See In re P.H.S., No. 04-25-00838-CV, 2026 WL
1828577, at *6 (Tex. App.—San Antonio June 24, 2026, no pet. h.).
Viewing the evidence in the light most favorable to the trial court’s finding, the record
contains evidence of serious concerns regarding the children’s home environment, particularly
arising from Mother’s alcohol use and domestic violence. But the Department was required to
prove the statutory ground for termination as to Father by clear and convincing evidence. Its
generalized allegations concerning substance abuse and domestic violence, without evidence
establishing the nature or extent of his conduct or connecting that conduct to the children’s
endangering conditions, would not permit a reasonable factfinder to form a firm belief or
conviction that Father knowingly placed or allowed E.G.A. and E.J.A. to remain in conditions or
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surroundings that endangered their physical or emotional well-being. We therefore hold the
evidence legally insufficient to support the trial court’s subsection (D) finding as to Father.
1. Subsection (E)
We reach a different conclusion as to the legal sufficiency of the evidence supporting the
subsection (E) finding. Unlike subsection (D), subsection (E) permits consideration of Father’s
conduct occurring both before and after the children’s removal. See K.J.G., 2019 WL 3937278, at
*4–5. The Department relied principally on Father’s alleged substance use, his incarceration, his
delay in beginning services, and his instability in employment and housing.
Specifically, the record reflects that Father was incarcerated for approximately two-and-ahalf months during the pendency of this case, causing him to miss visits with the children. Upon
his release, he resumed visitation with the children. A visitation monitor reported that Father
smelled of alcohol when he arrived for one visit, although father denied the report. That same
month, Father had a concerning hair follicle test result and then missed his scheduled drug test the
following month. In addition, Father did not begin his court-ordered services until approximately
one month before trial and, though he had made significant progress, he had not completed services
by the time of trial. At that time, Father was living with his mother and brother. Although the
residence posed no safety concerns, there were no bedrooms available for the children and they
would have been required to sleep in the living room. Finally, the Department had been unable to
verify Father’s employment as a caretaker. The Department contends that this evidence
collectively demonstrates an endangering course of conduct, creating “uncertainty and instability”
for the children. See S.P.A.T., 2025 WL 2610459, at *5.
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Viewing this evidence in the light most favorable to the trial court’s finding and deferring
to its credibility determinations, we conclude the evidence is legally sufficient to support the
subsection (E) finding. However, when the entire record is considered, much of the evidence is
substantially qualified. With respect to substance use, the Department presented no evidence that
Father chronically abused alcohol or drugs, used substances while caring for the children, or was
impaired during his visits with them. In fact, there was no specific evidence in the record that
Father was ever intoxicated or impaired as a result of drugs or alcohol. Father’s most recent hair
follicle test was negative, and the caseworker testified that random testing associated with his
services raised no concerns.
This record does not establish chronic alcohol or drug use by Father, repeated positive tests,
intoxication while exercising unsupervised care of the children, alcohol related arrests, impaired
parenting during visitation, or a demonstrated relationship between Father’s alleged substance use
and his ability to care for the children. See R.R.A., 687 S.W.3d at 278 (emphasizing that drug use
should not be considered in isolation, but a pattern of drug use may establish endangerment when
accompanied by circumstances demonstrating that the use presents a substantial risk to the parent’s
ability to parent).
Nor does the record support an inference that Father’s incarceration established a voluntary
course of endangering conduct. Father was incarcerated for two-and-a-half months during the
pendency of this case, but the record does not identify the offense or conduct that resulted in his
confinement. In fact, the record contains no information regarding Father’s incarceration other
than the fact of it. The supreme court has long held that imprisonment alone does not constitute
endangering conduct. Boyd, 727 S.W.2d at 533–34. In In re E.N.C., the court rejected an
endangerment theory based on the prospect or fact of confinement without evidence concerning
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the underlying conduct, explaining that the Department must prove conduct from which the
necessary endangering course can reasonably be inferred. 384 S.W.3d 796, 804–05 (Tex. 2012).
By contrast, In re J.F.-G. involved specific criminal conduct that resulted in the father’s absence
from the child’s life for more than eight years—a disruption the supreme court characterized as far
beyond the ordinary consequences of incarceration. 627 S.W.3d 304, 315-17 (Tex. 2021). Nothing
comparable was established here.
The evidence concerning Father’s service plan, employment, and housing is also less
compelling when considered in context of the entire record. Although Father did not begin
completing his service plan until one month before trial, the parties disputed the reason for that
delay. The trial court was entitled to resolve that dispute against Father. Nevertheless, it is
uncontested that once Father began services, he attended programing approximately three times
each week, made up his missed group sessions, had completed approximately eight or nine of
twelve parenting classes without missing a class, was consistently participating in domestic
violence classes, and was appropriately engaged in individual counseling.
As to employment, Father testified that he was working part time as a caretaker to a
disabled person and was being paid out of pocket while awaiting insurance approval. The
Department did not present evidence that Father was unemployed; rather, the caseworker testified
only that the Department had been unable to verify the employment. And although Father had not
obtained independent housing, the caseworker inspected the residence where he lived and testified
that there were no safety concerns about the home.
The remaining evidence likewise weighs against a firm belief or conviction that Father
engaged in an endangering course of conduct. After his release from incarceration, Father attended
every scheduled visit with E.G.A. and E.J.A. The caseworker testified that the visits went well.
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Father prepared homemade meals for the children, parented them appropriately, and was
affectionate with them. The caseworker described Father as the children’s main caregiver prior to
removal and as a “very hands on” father. The children’s caregiver similarly testified that the
children enjoyed their visits with Father and had no reservations about attending them.
The evidence may support a finding that Father has not yet demonstrated he is prepared for
the children’s immediate return, but that is not the finding subsection (E) requires. While
unverified employment, less than ideal housing, and incomplete services may demonstrate that
reunification was not yet appropriate, they do not necessarily demonstrate that Father engaged in
an endangering course of conduct. Interest of K.N., No. 24-0881, 2026 WL 1614378, at *14 (Tex.
June 5, 2026) (noting that the Department offered no reason to conclude that poor efforts at
reunification amount to endangerment). And when those circumstances are considered together
with the paltry evidence of substance abuse, the unexplained two-and-a-half month incarceration,
Father’s subsequent negative tests and service participation, his safe residence, and his consistent
and appropriate visits with his children, the evidence falls short of the clear and convincing
standard. Id. at *7 (emphasizing that “the clear-and-convincing-evidence standard is
unforgiving”).
Considering the entire record, we conclude the evidence contrary to the subsection (E)
finding is so significant that a reasonable factfinder could not have formed a firm belief or
conviction that Father engaged in a voluntary, deliberate, and conscious course of conduct that
endangered E.G.A.’s and E.J.A.’s physical or emotional well-being. Accordingly, although the
evidence is legally sufficient, it is factually insufficient to support the trial court’s subsection (E)
finding as to Father.
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Because the Department was required to establish at least one predicate ground in addition
to best interest and we have found legally insufficient evidence to support (D) and factually
insufficient evidence to support (E), the portion of the trial court’s order terminating Father’s
parental rights requires reversal. We therefore need not address Father’s challenge to the trial
court’s best interest finding.
Mother’s Appeal
Mother’s court-appointed appellate counsel has filed a brief containing a professional
evaluation of the record, with citations to the record and legal authority, in which he concludes
there are no arguable grounds for reversal of the termination order. The brief satisfies the
requirements of Anders v. California, 386 U.S. 738 (1967). See In re P.M., 520 S.W.3d 24, 27 n.10
(Tex. 2016) (per curiam) (recognizing that Anders procedures apply in parental termination cases).
Additionally, counsel has certified that he provided Mother with a copy of the brief, informed her
of her right to review the record and file her own brief, and provided her with instructions to gain
access to the appellate record. This court issued an order setting a deadline for Mother to request
a copy of the record and to file a pro se brief. Mother requested and was granted an extension of
time to file the brief, yet no pro se brief has been filed.
After a thorough review of the appellate record and counsel’s brief, we conclude the record
establishes by clear and convincing evidence the grounds for termination as to Mother and that
termination of Mother’s parental rights is in the children’s best interest. We find no plausible
justification for reversal of the termination order.
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CONCLUSION
Accordingly, the order of termination as to Mother is affirmed. The termination order as to
Father is reversed and remanded to the trial court for further proceedings consistent with this
opinion.
H. Todd McCray, Justice
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