In the Interest of J.O.S. Jr. and A.M., Children

In the Interest of J.O.S. Jr. and A.M., Children, 04-26-00385-CV, October 30, 2026.

On appeal from 73rd Judicial District Court, Bexar County, Texas

Synopsis

Clear and convincing evidence of prenatal methamphetamine exposure, continued drug use, and unsafe caregiving arrangements supported termination under Texas Family Code section 161.001(b)(1)(D) and (E). The Fourth Court of Appeals held that endangerment may be inferred from a parent’s course of conduct and conscious disregard of a known potential danger; proof of actual injury to the children was unnecessary.

Relevance to Family Law

Although this is a parental-termination case, its evidentiary lessons extend directly to divorce and custody litigation involving substance abuse, unsafe third-party caregivers, or violations of possession and safety restrictions. The same evidence that establishes an endangering environment under Chapter 161 may support temporary restraining orders, supervised possession, drug testing, geographic or caregiving restrictions, and limitations on conservatorship rights under Chapter 153—although the governing statutory standards are not identical.

The opinion also illustrates why counsel should investigate the entire caregiving structure rather than focusing solely on the parent’s residence. A parent may create risk by knowingly leaving a child with unsafe caregivers, permitting violations of a safety plan, or disregarding warning signs in a third-party home. In property litigation, substance abuse does not automatically determine the division of the marital estate, but documented expenditures on drugs, dissipation of community assets, criminal consequences, or financial instability may become relevant to a properly pleaded request for a disproportionate division.

Case Summary

Fact Summary

The Department became involved shortly after A.M.’s birth in December 2024, when both Mother and A.M. tested positive for methamphetamine. Mother had a prior history with the Department involving drug use, and Department records indicated that her older child, J.O.S. Jr., had also been exposed to drugs before birth.

The Department initially implemented a family-based safety plan. Under that plan, Mother’s contact with the children was required to be supervised by either J.O.S. Jr.’s father or Brian Monreal, the boyfriend of Mother’s adult daughter. A.M. lived with Brian and Mother’s daughter, while J.O.S. Jr. lived with his father but stayed at Brian’s home while his father worked. Mother testified that she visited the children frequently at that home but did not reside there.

In March 2025, the Department removed the children after determining that the safety plan had been violated and that the caregivers’ home was unsafe. Mother was present during the removal. A Department supervisor testified that Mother became aggressive, appeared to be under the influence, and refused a requested drug test.

The Department obtained temporary managing conservatorship and placed the children in foster care. A.M. remained in the same foster placement through trial. J.O.S. Jr. experienced significant behavioral and placement difficulties, including admission to a mental-health facility and placement in a treatment home, before eventually returning to his father’s home.

Following a multi-day bench trial, the trial court terminated Mother’s parental rights under Texas Family Code section 161.001(b)(1)(D), (E), and (Q), found termination to be in the children’s best interest, appointed J.O.S. Jr.’s father as his managing conservator, and appointed the Department as A.M.’s managing conservator.

Issues Decided

The Fourth Court of Appeals considered:

• Whether the evidence was legally and factually sufficient to establish that Mother knowingly placed or allowed the children to remain in endangering conditions or surroundings under section 161.001(b)(1)(D).
• Whether the evidence was legally and factually sufficient to establish an endangering course of conduct under section 161.001(b)(1)(E).
• Whether the termination order could be sustained in light of Mother’s challenges to the predicate grounds and the trial court’s best-interest finding.
• Whether the trial court abused its discretion by appointing the Department as A.M.’s managing conservator.

Rules Applied

Under Texas Family Code section 161.001, the Department must prove by clear and convincing evidence both a statutory predicate ground for termination and that termination is in the child’s best interest. Clear and convincing evidence is evidence sufficient to produce in the factfinder’s mind a firm belief or conviction as to the truth of the allegations.

For legal sufficiency, the reviewing court considers the evidence in the light most favorable to the finding and asks whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Factual-sufficiency review considers the entire record, including disputed evidence, to determine whether contrary evidence would prevent a reasonable factfinder from forming that firm belief or conviction. The trial court remains the sole judge of witness credibility and evidentiary weight.

Section 161.001(b)(1)(D) authorizes termination when a parent knowingly places or knowingly allows a child to remain in conditions or surroundings that endanger the child’s physical or emotional well-being. Subsection (D) is primarily concerned with the child’s environment before removal, including both the physical living conditions and parental conduct within that environment. A parent need not know with certainty that injury will occur; awareness and conscious disregard of a potential danger are sufficient.

Section 161.001(b)(1)(E) focuses on the parent’s conduct, omissions, and failures to act. It permits consideration of conduct before the child’s birth, conduct outside the child’s presence, and certain post-removal conduct when that evidence supports an inference that the behavior may recur. The conduct need not be directed at the child, and the Department need not prove that the child suffered an actual injury.

Ordinarily, one predicate ground is sufficient when termination is also in the child’s best interest. But because findings under subsections (D) and (E) may affect a parent’s rights to other children in future proceedings, appellate courts must review properly raised challenges to those findings. In re N.G., 577 S.W.3d 230, 236–37 (Tex. 2019).

Application

The court began with the undisputed evidence that Mother used methamphetamine while pregnant with A.M. and that both Mother and A.M. tested positive at the child’s birth. The record also indicated that J.O.S. Jr. had experienced prenatal drug exposure. Prenatal drug use was probative not merely as evidence of a parent’s private conduct, but as conduct exposing the unborn child to a substantial potential for physical harm.

That evidence did not stand alone. The Department attempted a less restrictive intervention through a safety plan requiring supervision of Mother’s contact with the children. The children nevertheless remained in a caregiving arrangement that the Department ultimately determined was unsafe, and the safety plan was violated while they were in that home. Mother’s frequent presence in the home and awareness of the arrangement permitted the factfinder to assess what she knew about the potential danger and whether she consciously disregarded it.

Mother’s conduct during the removal further reinforced the trial court’s assessment. A Department witness described her as aggressive and apparently under the influence, and Mother refused a drug test. Although a refusal to test is not itself direct proof of drug use, the trial court could evaluate that refusal together with the positive birth tests, prior Department history, and evidence concerning the failed safety arrangement.

For subsection (D), the evidence supported a finding that the children’s pre-removal environment exposed them to potential physical or emotional harm. The court’s analysis did not require proof that either child sustained a particular injury in the home. The relevant question was whether Mother knowingly allowed the children to remain in conditions presenting a danger she was aware of but disregarded.

For subsection (E), the court considered the broader course of conduct. Prenatal methamphetamine use, continued concerns regarding substance abuse, refusal to submit to testing, and the unsafe caregiving arrangement collectively permitted an inference of an ongoing pattern rather than an isolated lapse. Because the trial court heard the witnesses directly, the appellate court deferred to its credibility determinations where the testimony conflicted.

Holding

The Fourth Court of Appeals held that legally and factually sufficient evidence supported termination under section 161.001(b)(1)(D). Mother’s prenatal methamphetamine use and knowing participation in or acquiescence to an unsafe caregiving environment permitted the trial court to form a firm belief or conviction that she knowingly allowed the children to remain in endangering conditions or surroundings.

The court also held that sufficient evidence supported termination under section 161.001(b)(1)(E). Mother’s drug use and related conduct constituted a course of conduct from which the factfinder could infer continuing danger to the children’s physical or emotional well-being. The Department was not required to show that Mother intended to harm the children or that the children suffered a specific injury.

The court affirmed the termination order. Its analysis confirms that a factfinder may evaluate prenatal exposure, historical drug use, failed safety interventions, unsafe third-party caregiving, and testing refusals cumulatively rather than treating each fact as an isolated event.

Practical Application

Build a chronology rather than a collection of incidents. Endangerment cases are frequently won or lost through the sequence of events. Counsel should connect prenatal exposure, positive tests, safety-plan violations, missed services, refusals to test, and post-removal conduct into a coherent timeline showing either a continuing course of conduct or meaningful rehabilitation.

Differentiate subsections (D) and (E). Subsection (D) focuses on the child’s pre-removal conditions and surroundings. Subsection (E) focuses more broadly on parental conduct and may reach conduct before birth or after removal. Evidence should be offered and argued with those distinctions in mind, even when the same facts support both grounds.

Develop the third-party caregiver evidence. A parent cannot necessarily avoid responsibility by placing the child with a relative, romantic partner, or informal caregiver. Identify who lived in the home, who supervised contact, what restrictions were imposed, what each adult knew, and how the parent responded to warning signs.

Treat prenatal drug evidence as substantive endangerment evidence. Obtain authenticated medical records, toxicology results, prenatal-care records, and qualified testimony explaining the testing. Do not assume that a positive test will be self-explanatory or immune from foundational objections.

Address refusals to test in context. A refusal may be powerful circumstantial evidence when combined with prior positive tests, observations of impairment, or inconsistent explanations. The sponsoring witness should establish the request, the circumstances, the parent’s response, and any applicable testing protocol.

For the parent’s counsel, offer proof of durable change. General testimony that the parent is now sober or has improved will often be insufficient against an established pattern. Present objective testing, treatment records, attendance logs, sponsor or provider testimony, stable housing evidence, and a concrete plan for safe childcare.

Use the case carefully in Chapter 153 disputes. The statutory test for termination is not interchangeable with the standards governing conservatorship and possession. Nevertheless, the evidence identified in this opinion may support findings concerning significant impairment, supervised possession, temporary restrictions, or the best interest of the child in a divorce or suit affecting the parent-child relationship.

Checklists

Proving a Subsection (D) Endangering Environment

• Identify the child’s living conditions before removal.
• Establish who resided in or regularly visited the home.
• Document the parent’s knowledge of unsafe conditions.
• Obtain the written safety plan and proof that it was communicated to the parent.
• Identify each safety-plan violation and the person responsible.
• Connect the parent’s acts or omissions to the child’s continued presence in the environment.
• Preserve photographs, reports, communications, and contemporaneous case notes.
• Explain the potential danger even if no actual injury occurred.
• Separate pre-removal evidence from later conduct when presenting the subsection (D) theory.

Proving a Subsection (E) Course of Conduct

• Create a dated chronology of drug use, testing, treatment, relapse, and refusals.
• Obtain prenatal and birth toxicology records.
• Investigate prior Department cases and prenatal exposure involving other children.
• Document conduct occurring outside the child’s presence when it bears on recurring danger.
• Establish post-removal drug use or noncompliance when relevant.
• Connect separate incidents into a recurring pattern.
• Present evidence of acts, omissions, and failures to protect.
• Anticipate arguments that each event was isolated or remote.
• Explain why the conduct permits an inference of future risk.

Litigating Drug-Testing Evidence

• Authenticate laboratory reports and chain-of-custody documentation.
• Determine whether the test was urine, hair, blood, meconium, or another methodology.
• Confirm the substances tested for and the applicable detection window.
• Identify prescribed medications or other potential explanations.
• Establish the circumstances surrounding any missed or refused test.
• Preserve text messages, emails, and case notes documenting testing requests.
• Compare the parent’s testimony with objective test results.
• Consider whether expert testimony is necessary to explain the result.
• Avoid overstating what a particular test can establish about timing or impairment.

Establishing or Defending an Unsafe-Caregiver Theory

• Identify every person who provided regular childcare.
• Investigate criminal, Department, substance-abuse, and domestic-violence history where legally available.
• Determine what the parent knew and when the parent knew it.
• Obtain evidence concerning the caregiver’s home and household members.
• Document restrictions imposed by court order, safety plan, or Department agreement.
• Establish whether the parent was present during violations.
• Identify available safer alternatives.
• For the defense, show reasonable vetting, prompt corrective action, and lack of knowledge of concealed risks.
• Address whether the challenged placement was temporary, emergency-driven, or part of an ongoing arrangement.

Demonstrating Rehabilitation for the Parent

• Complete substance-abuse assessment and recommended treatment.
• Maintain a consistent schedule of negative drug tests.
• Avoid missed, diluted, or refused tests.
• Secure stable and verifiable housing.
• Develop a written childcare and supervision plan.
• Use caregivers who can withstand Department and courtroom scrutiny.
• Obtain testimony from treatment providers with personal knowledge.
• Document service-plan participation and completion.
• Explain relapses candidly and provide evidence of responsive treatment.
• Show sustained change over time rather than improvement immediately before trial.

Preserving the Record for Appeal

• Request specific findings on each predicate ground and best interest.
• Object to inadmissible drug-test records and preserve foundational complaints.
• Make offers of proof for excluded rehabilitation evidence.
• Identify contrary evidence bearing on legal and factual sufficiency.
• Preserve challenges to both subsection (D) and subsection (E) findings.
• Brief the distinct temporal and analytical scope of each subsection.
• Address credibility disputes without asking the appellate court to reweigh testimony.
• Analyze the entire record under the clear-and-convincing standard.
• Separately preserve any challenge to the managing-conservatorship appointment.

Citation

In re J.O.S. Jr. & A.M., No. 04-26-00385-CV, slip op. (Tex. App.—San Antonio Oct. 30, 2026) (mem. op.).

Full Opinion

Read the full opinion from the Fourth Court of Appeals

~~52371b69-9a60-406e-bf1e-efaa1124a76a~~