E. L. v. Texas Department of Family and Protective Services

E. L. v. Texas Department of Family and Protective Services, 03-26-00445-CV, November 06, 2026.

On appeal from 421st District Court of Caldwell County

Synopsis

The Third Court of Appeals held that legally and factually sufficient evidence supported termination under Texas Family Code Section 161.001(b)(1)(D) and (E). Recurring illegal-drug use, threatening behavior, refusal to continue safety measures, and persistent instability permitted the trial court to find that the mother knowingly exposed the children to endangering conditions and engaged in an endangering course of conduct.

Relevance to Family Law

Although E.L. is a parental-termination case, its treatment of endangerment has broader significance in conservatorship, possession, and modification litigation. Evidence of recurring drug use, threats against caseworkers or caregivers, refusal to cooperate with safety arrangements, and instability may support restrictions on possession, supervised access, temporary emergency relief, or appointment of the other parent or a nonparent as managing conservator. The case also illustrates that a parent’s ability to meet a child’s immediate medical and educational needs does not necessarily neutralize evidence of a broader course of endangering conduct.

In divorce and custody litigation, counsel should evaluate conduct cumulatively rather than as isolated incidents. Drug-test chronology, communications, safety plans, placement disruptions, police involvement, and the children’s post-incident behaviors may collectively establish a materially different evidentiary picture than any one event standing alone. While an endangerment finding does not itself control the just-and-right division of marital property, the same evidence can affect temporary orders, exclusive use of the residence, injunctions, conservatorship, possession conditions, and the credibility findings that shape the remainder of the case.

Case Summary

Fact Summary

The Department began working with the family through family-based safety services in 2024. Its initial concerns included behavioral outbursts by one child at school and the youngest child’s positive test for marijuana at birth.

In May 2024, the mother tested positive for marijuana and methamphetamine. When the caseworker recommended a drug-and-alcohol assessment, the mother became aggressive and threatened to “lay hands” on the caseworker. The Department implemented a safety plan under which another adult lived in the home and monitored the mother’s behavior.

The mother continued to return positive drug-test results. She tested positive for marijuana in July and later tested positive again for marijuana and methamphetamine. A second safety plan placed two monitors in the home. After the mother declined to extend that plan, an October 2024 test was positive for marijuana, methamphetamine, and cocaine.

The mother’s communications with the caseworker also escalated. According to the testimony and admitted text messages, the mother warned the caseworker not to come to the residence, made statements about the caseworker being shot, and invoked David Koresh when discussing the possibility that the Department would remove the children. The mother admitted that she had acted aggressively and had threatened the caseworker, although she denied threatening to shoot her.

The evidence was not uniformly adverse. The Department’s caseworker acknowledged that the mother had been meeting the children’s needs during portions of the investigation. Department personnel observed no concerns in the home in May 2024; the mother obtained medical care for a child’s infection; and the children’s daycare reported no concerns with the children or the family from July through October.

After the October positive drug test, the Department proposed another safety plan that would have allowed the children to remain with the mother. The mother did not agree to follow it, and the Department sought removal.

The children then experienced several placements. Some ended almost immediately, including one placement in which the mother allegedly obtained unauthorized access to the children. The children were ultimately placed with the father of two of the children, but he later asked the Department to remove them after an altercation in which the mother allegedly attempted to run him over with her vehicle. A later relative placement was also unsuccessful.

By the time of trial, the children were living with a caregiver who had prior experience with them through school and daycare. She described significant behavioral and emotional concerns, particularly with the oldest child, including aggression, anxiety, food-related worry, fear that the siblings would be removed, and possible ADHD, PTSD, and oppositional-defiant disorder. The caregiver reported improvement with consistency and services, testified that the children’s medical and educational needs were being met, and expressed a desire to adopt them.

The children remained affectionate toward the mother and enjoyed visits with her, although the caregiver testified that the oldest child became angry and acted out after visits. The mother, in turn, raised concerns about the children’s condition and care in the placement.

Issues Decided

The court decided:

1. Whether legally and factually sufficient evidence supported termination under Texas Family Code Section 161.001(b)(1)(D) based on the mother’s knowing placement of, or allowance of the children to remain in, endangering conditions or surroundings.
2. Whether legally and factually sufficient evidence supported termination under Section 161.001(b)(1)(E) based on the mother’s conduct, or knowing placement of the children with persons who engaged in conduct, that endangered their physical or emotional well-being.
3. Whether legally and factually sufficient evidence supported the trial court’s finding that termination was in the children’s best interests.

Rules Applied

Parental rights may be terminated only upon clear and convincing evidence of at least one statutory predicate ground under Texas Family Code Section 161.001(b)(1) and a finding under Section 161.001(b)(2) that termination is in the child’s best interest. “Clear and convincing evidence” means the measure or degree of proof that will produce in the factfinder’s mind a firm belief or conviction as to the truth of the allegations. Tex. Fam. Code § 101.007.

Under the established legal-sufficiency standard for termination cases, the reviewing court considers the evidence in the light most favorable to the finding and determines whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

For factual sufficiency, the appellate court considers the entire record, including disputed evidence, and asks whether a reasonable factfinder could have formed the required firm belief or conviction. The court must determine whether contrary evidence is so significant that the factfinder could not reasonably have resolved the dispute in favor of the challenged finding. See In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002).

Section 161.001(b)(1)(D) focuses primarily on the child’s conditions or surroundings and the parent’s awareness of those conditions. The relevant inquiry includes whether the parent knowingly placed or knowingly allowed the child to remain in conditions that endangered the child’s physical or emotional well-being. The subsection generally focuses on the child’s environment before removal.

Section 161.001(b)(1)(E) focuses on the parent’s conduct and asks whether the parent engaged in a voluntary, deliberate, and conscious course of conduct that endangered the child. The conduct need not be directed at the child, and the child need not suffer an actual injury. Endangerment encompasses conduct that exposes a child to loss or injury or jeopardizes the child’s physical or emotional health. A course of conduct may include actions occurring both before and after removal.

Recurring illegal-drug use may support an endangerment finding when it creates instability, impairs parental judgment, or exposes the child to the possibility that the parent will be unavailable because of incarceration, impairment, or continued Department intervention. The factfinder may consider continued drug use after Department involvement or despite safety measures as evidence that the conduct is not merely an isolated lapse.

Best interest is evaluated from the entire record. The governing considerations include the nonexclusive factors identified in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976), together with the statutory considerations in Texas Family Code Section 263.307. Evidence supporting a predicate termination ground may also be relevant to the best-interest determination.

Application

The appellate court considered the mother’s behavior as a connected pattern rather than as a series of unrelated events. The positive drug tests occurred repeatedly over several months and involved marijuana, methamphetamine, and cocaine. The Department attempted less restrictive interventions, including multiple safety plans and in-home monitoring, but the drug use recurred. When the mother declined to continue the final proposed safety arrangement, the Department determined that removal was necessary.

For subsection (D), the record permitted the trial court to find that the mother knew about the dangerous conditions associated with recurring illegal-drug use and nevertheless allowed the children to remain in that environment. The children were in her care while the positive tests and safety-plan interventions were occurring. Her refusal to continue a plan designed to keep the children safely in the home further supported the conclusion that she knowingly allowed the endangering conditions to persist.

For subsection (E), the court could look beyond the physical condition of the home and evaluate the mother’s broader course of conduct. The evidence included recurring drug use, aggressive responses to Department intervention, threats against the caseworker, refusal to cooperate with safety protections, and the reported vehicle incident involving the children’s later caregiver. The trial court could reasonably view those events as a voluntary and continuing pattern that exposed the children to instability and potential physical or emotional harm.

The court’s analysis did not require it to disregard evidence favorable to the mother. She had attended to medical needs, daycare personnel had reported no concerns during part of the relevant period, and the children loved and enjoyed visiting her. But the trial court, as factfinder, was entitled to weigh that evidence against the repeated drug use, escalating threats, failed safety interventions, placement instability, and the children’s emotional and behavioral difficulties.

The evidence concerning the children’s improvement in a stable placement also supported the best-interest determination. Their caregiver was addressing their educational, medical, and emotional needs, had observed progress, and wanted to adopt them. The trial court could reasonably conclude that the children’s need for permanence and consistency outweighed the evidence of their bond with the mother.

Holding

The Third Court of Appeals held that the evidence was legally and factually sufficient under Section 161.001(b)(1)(D). The trial court could form a firm belief or conviction that the mother knowingly exposed the children to endangering conditions or allowed them to remain in those conditions while recurring illegal-drug use and safety concerns persisted.

The court also held that the evidence was legally and factually sufficient under Section 161.001(b)(1)(E). The recurring drug use, threats, aggression, resistance to safety measures, and continuing instability constituted evidence of an endangering course of conduct rather than a single, isolated mistake.

The court further rejected the challenge to the best-interest finding. Considering the entire record—including the children’s need for stability, their behavioral and emotional condition, the mother’s continuing conduct, and the current caregiver’s ability and willingness to meet their needs—the evidence permitted a firm belief or conviction that termination was in the children’s best interests. The court affirmed the termination judgment.

Practical Application

Build a chronology, not merely a collection of incidents. In an endangerment case, the persuasive force often comes from sequence and recurrence. Counsel should align drug tests, safety plans, threats, missed services, police contacts, possession incidents, and placement disruptions on a single timeline. That presentation makes it easier for the factfinder to distinguish an isolated lapse from a deliberate course of conduct.

Separate subsection (D) proof from subsection (E) proof. For a subsection (D) claim, identify the condition or environment, establish when the child was exposed to it, and prove the parent’s knowledge. For subsection (E), focus on the parent’s repeated decisions and conduct over time. Although the same evidence may support both grounds, counsel should not present the two statutory theories as interchangeable.

Do not overlook favorable evidence. Here, the Department’s own witness acknowledged that the mother met various needs and that daycare personnel had reported no concerns. A party seeking termination should address those facts directly and explain why they do not overcome the cumulative endangerment evidence. A parent defending against termination should use such evidence to challenge whether the alleged danger was ongoing, known, or sufficiently connected to the children.

Treat communications as merits evidence. Text messages, voicemails, social-media posts, and recorded communications may establish threats, volatility, knowledge, refusal to cooperate, or consciousness of the consequences of continued conduct. In custody litigation, similar communications may bear on conservatorship, geographical restrictions, exchanges, supervised possession, and injunctions against threatening caregivers or professionals.

Connect drug use to parenting risk. A positive result should not be presented in a vacuum. Develop evidence concerning frequency, substances involved, timing relative to possession, impairment, access to the children, refusal of treatment, relapses after intervention, and the resulting instability. Conversely, defense counsel should develop evidence of sobriety, treatment, negative tests, safe caregiving arrangements, and the absence of a nexus between past use and present danger.

Preserve placement and best-interest evidence. Evidence that children improve after receiving consistency, treatment, and stable care can be highly probative. Practitioners should obtain records and testimony concerning school attendance, therapy, medical treatment, behavior before and after visits, sibling relationships, caregiver capacity, and permanency plans.

Apply the reasoning in private custody cases with precision. Conduct sufficient to justify supervised possession or a temporary restriction does not automatically establish a statutory termination ground. The burdens, statutory elements, and consequences differ. Nevertheless, E.L. provides a useful framework for organizing evidence of danger and instability in divorce, original SAPCR, modification, and emergency-relief proceedings.

Checklists

Proving a Subsection (D) Environmental-Endangerment Claim

• Identify the specific dangerous condition or surrounding.
• Establish that the condition existed while the child was in the parent’s care.
• Prove when and how the parent learned of the condition.
• Connect the condition to a potential physical or emotional danger to the child.
• Obtain drug tests, photographs, medical records, police reports, and safety-plan documents.
• Identify witnesses who observed the home or caregiving environment.
• Address evidence that the children appeared healthy or that some immediate needs were being met.
• Distinguish pre-removal environmental evidence from post-removal conduct.
• Explain why proposed safety measures did or did not eliminate the danger.
• Request findings that track the statutory language of Section 161.001(b)(1)(D).

Proving a Subsection (E) Course of Conduct

• Prepare a dated chronology of the parent’s conduct.
• Document recurring drug use and the substances involved.
• Compare positive tests with treatment, services, and safety-plan dates.
• Preserve threatening texts, voicemails, emails, and social-media communications.
• Obtain evidence of violence, attempted violence, or volatile confrontations.
• Show whether the parent continued the conduct after receiving warnings or services.
• Connect the conduct to instability, impairment, incarceration risk, or emotional harm.
• Include relevant post-removal conduct.
• Anticipate the argument that each event was isolated.
• Explain how the incidents collectively demonstrate a voluntary, deliberate, and conscious pattern.

Defending Against Endangerment Allegations

• Challenge whether the parent had actual or constructive knowledge of the alleged condition.
• Separate isolated incidents from an asserted continuing course of conduct.
• Obtain complete toxicology records, including test type, collection method, confirmation, and cutoff levels.
• Document treatment attendance, sobriety dates, negative tests, and relapse-prevention measures.
• Identify safe caregivers and protective measures implemented by the parent.
• Preserve evidence that the children’s medical, educational, and emotional needs were met.
• Develop testimony from teachers, daycare personnel, physicians, therapists, and neutral observers.
• Contest hearsay and clarify the source of each allegation.
• Show whether the alleged conduct occurred outside the children’s presence and whether a nexus to danger exists.
• Address threatening or inflammatory communications directly rather than allowing them to remain unexplained.
• Demonstrate insight, accountability, and sustained behavioral change.
• Propose enforceable alternatives to termination when supported by the record.

Preparing the Best-Interest Record

• Document the children’s expressed desires when age and maturity permit.
• Establish their current and future emotional and physical needs.
• Identify present and future dangers associated with each proposed placement.
• Compare the parenting abilities of the parties and caregivers.
• Describe services available to assist the parent or proposed caregiver.
• Develop each party’s plan for the children.
• Establish the stability of the proposed home.
• Address acts or omissions indicating that the existing relationship is improper.
• Present any explanation for the parent’s conduct.
• Document behavioral changes before and after visits.
• Preserve evidence of sibling bonds and the consequences of separation.
• Establish the caregiver’s willingness and ability to provide permanence.

Preserving the Record for Appeal

• Move exhibits into evidence rather than merely marking them.
• Authenticate text messages, test results, photographs, and electronic records.
• Obtain rulings on objections and offers of proof.
• Ask witnesses to distinguish personal knowledge from information received from others.
• Develop both favorable and unfavorable evidence relevant to each statutory ground.
• Request findings that separately address subsections (D), (E), and best interest.
• Preserve legal- and factual-sufficiency challenges to each challenged finding.
• Ensure the reporter’s record includes all hearings and admitted exhibits material to the appeal.
• Address subsection (D) and (E) findings independently because of their potential collateral consequences.
• Verify compliance with accelerated appellate deadlines in parental-termination cases.

Citation

E.L. v. Texas Department of Family & Protective Services, No. 03-26-00445-CV (Tex. App.—Austin Nov. 6, 2026, no pet. h.) (mem. op.).

Full Opinion

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