In the Interest of E.K.S., a Child

In the Interest of E.K.S., a Child, 05-25-01726-CV, June 23, 2026.

On appeal from 304th Judicial District Court, Dallas County, Texas

Synopsis

The Dallas Court of Appeals held that a final SAPCR order may validly provide a parent possession and access “at a date, time, and location as arranged and agreed” with the Department, so long as the record supports that structure as serving the child’s best interest and the provision is not arbitrary or unreasonable. The Family Code does not require a fallback schedule of specific dates and times in every final order, even when the parent argues a more definite possession framework would be preferable.

Relevance to Family Law

Although this case arose from a DFPS conservatorship proceeding rather than a divorce, its practical significance extends well beyond child-protection litigation. Texas family law litigators routinely confront disputes over whether possession terms must be fixed and specific, whether supervised access can remain open-ended, and how much discretion a managing conservator or third party may be given in administering visitation. E.K.S. confirms that, in the right record, non-specific access terms can survive appellate review. That matters in modification suits, private custody cases involving safety concerns, orders appointing a nonparent conservator, and even divorce decrees where one parent’s instability, substance abuse, transportation limitations, or geographic complications make rigid scheduling impractical or contrary to the child’s best interest.

Case Summary

Fact Summary

Mother gave birth to E.K.S. after both she and the child tested positive for amphetamines. The Department removed the child almost immediately and filed a SAPCR seeking conservatorship relief, with ICWA implications because the child was believed to be an Indian child affiliated with the Chitimacha Tribe. Mother was appointed temporary possessory conservator, and the Department’s visitation plan required supervised contact.

The record showed longstanding substance-abuse concerns. Mother had previously been through treatment, continued using drugs, and had a history demonstrating that her longest sobriety had occurred during incarceration. She completed some services, including a psychological evaluation, parenting classes, and a drug-and-alcohol assessment, but she failed to complete counseling successfully and stopped drug testing for roughly eleven months before final hearing. The evidence also showed that her visitation had been inconsistent. At one point, visits were arranged weekly on Sundays for two hours, but Mother’s attendance was “spotty,” with transportation issues repeatedly cited.

Placement also became more complicated over time. After an initial local relative placement, other local relatives intervened and sought termination and adoption. Later, the Chitimacha Tribe intervened and urged placement with on-reservation relatives in Louisiana who had already adopted the child’s sibling. At final hearing, the Department recommended permanent managing conservatorship to facilitate interstate placement with those relatives while preserving Mother as possessory conservator. Mother no longer sought reunification and instead wanted the child to remain with local relatives, largely out of concern that Louisiana placement would effectively weaken her ongoing contact.

The trial court ultimately appointed the Department permanent managing conservator, appointed Mother permanent possessory conservator, placed the child with the Tribe-preferred relatives, and ordered Mother’s supervised visitation to occur “at a date, time and location as arranged and agreed” between Mother and DFPS. The order also expressly recited that non-specific visitation was in the child’s best interest and that unsupervised access would endanger the child’s physical health or safety.

Issues Decided

• Whether the trial court abused its discretion by ordering Mother’s possession and access in the final SAPCR order to occur at a date, time, and location “as arranged and agreed” between Mother and the Department.
• Whether the Texas Family Code requires a final SAPCR order to include a fallback schedule of specific visitation terms rather than relying exclusively on an “as arranged and agreed” supervised-access provision.

Rules Applied

The court applied the familiar abuse-of-discretion standard governing conservatorship, possession, and access determinations in SAPCR cases. Under that framework, the dispositive inquiry is not whether the appellate court would have fashioned a different possession schedule, but whether the trial court acted arbitrarily, unreasonably, or without reference to guiding legal principles.

The court’s analysis was grounded in the Family Code’s best-interest-centered approach to possession and access. In substance, the court treated the visitation question as one committed to trial-court discretion so long as the resulting order is supported by the record and protects the child’s welfare. The opinion also reflects the principle that supervised possession may be ordered when unsupervised access would endanger the child’s physical health or emotional welfare.

Just as important, the court rejected the proposition that the Family Code imposes a categorical requirement that every final order include a default schedule of fixed dates and times whenever the court uses “as arranged and agreed” language. The appellate court instead focused on whether the particular provision entered in this case was supported by the evidence and was sufficiently tethered to the child’s best interest.

Application

The Fifth Court treated Mother’s appellate complaint as a narrow one. She did not challenge the conservatorship appointment, the Louisiana placement, the ICWA-related rulings, or the requirement of supervision itself. Her sole complaint was that the final order should have gone further and added a fallback schedule—something like specified virtual or in-person visits—rather than leaving access to arrangements made with the Department.

Against that limited challenge, the court looked to the actual record. The evidence showed unresolved substance-abuse concerns, noncompletion of services, a prolonged failure to submit to testing, and a history of inconsistent visitation. The evidence also showed practical instability: Mother lacked reliable transportation, had not maintained consistent contact with the Department, and was not in a position to demonstrate that a fixed schedule would be realistic or workable. At the same time, the Department affirmatively represented that it remained willing to facilitate supervised visitation while serving as permanent managing conservator.

The trial court also made express best-interest findings in the final order. It stated that non-specific visitation was in the child’s best interest and that unsupervised access would endanger the child. In the absence of requested findings and conclusions beyond those recitations, and given the narrow appellate issue, the court of appeals had little difficulty concluding that the open-ended supervised-access provision was not arbitrary. Put differently, the appellate court did not say that “as arranged and agreed” language is always preferable; it said that this record supported it, and the Family Code did not require the trial court to graft on a more specific fallback possession schedule simply because Mother asked for one on appeal.

Holding

The court held that the trial court did not abuse its discretion by ordering Mother’s supervised possession and access to occur “at a date, time and location as arranged and agreed” between Mother and DFPS. On this record, the provision was supported by the child’s best interest, the evidence of Mother’s unresolved instability and inconsistent participation, and the Department’s continuing supervisory role.

The court further held that the Family Code does not require a fallback schedule of specific visitation terms in every final SAPCR order using “as arranged and agreed” language. Absent a showing that the provision is arbitrary, unreasonable, or otherwise unsupported by the record, such a non-specific access provision may be affirmed.

Practical Application

For trial lawyers, the lesson is not that non-specific visitation clauses are now universally safe. The lesson is narrower and more useful: if you want to defend one, build a record showing why specificity would be impractical, unworkable, or contrary to the child’s best interest. In E.K.S., the winning record included ongoing substance-abuse concerns, supervision needs, inconsistent visitation, transportation barriers, and a placement structure involving out-of-state relatives and DFPS oversight. That combination gave the trial court a principled basis to prefer flexibility over a rigid schedule.

For the lawyer opposing such a clause, E.K.S. is a warning that generalized appellate complaints about the desirability of a fallback schedule will not do much work. If you want reversal, you need a record showing that the provision effectively delegates possession to the conservator, operates as a denial of meaningful access, or is likely to function arbitrarily in practice. Trial counsel should develop evidence that a specific minimum schedule is feasible, safe, and necessary to preserve the parent-child relationship. Without that factual record, an appellate court can readily defer to the trial court’s best-interest determination.

The case also has implications for private SAPCRs and divorce cases. When one parent seeks supervised access because of addiction, mental-health instability, family violence, or logistical barriers, E.K.S. offers support for a tailored order that does not lock the parties into a standard possession framework. But the converse remains true: where one side wants certainty, enforceability, and protection against gatekeeping, counsel should press for a defined minimum schedule, objective conditions for expansion, and findings explaining why a more specific structure is or is not appropriate.

Strategically, the opinion underscores the importance of preserving the right complaint. If your argument is really that the other side has been given too much unilateral control over access, say so clearly and support it factually. If your argument is that the order is too indefinite to be enforceable, preserve that. If your argument is that the trial court failed to include the least restrictive protective structure, make the record. Appellate courts are unlikely to manufacture those theories from a generalized request for something “ideally” more specific.

Checklists

Building a Record to Support Non-Specific Supervised Visitation

• Establish why supervision is necessary through testimony, records, or admissions.
• Tie the need for flexible scheduling to concrete facts such as transportation problems, treatment participation, geographic distance, placement instability, or the child’s therapeutic needs.
• Offer evidence that the supervising conservator or agency is willing and able to facilitate visitation in good faith.
• Ask the trial court to make express best-interest findings supporting non-specific visitation.
• Ask the court to recite that unsupervised access would endanger the child’s physical health or emotional welfare, if supported by the evidence.
• Show why a rigid fixed schedule may not be workable under the present circumstances.

Challenging an “As Arranged and Agreed” Provision

• Present evidence that a non-specific provision will function as a practical denial of access.
• Show that the other conservator has gatekept, delayed, or manipulated visitation in the past.
• Offer a proposed fallback schedule with specific days, times, duration, supervision terms, and virtual options.
• Demonstrate that the parent can comply with a structured schedule through transportation, sobriety monitoring, housing, or third-party supervision.
• Request findings of fact and conclusions of law addressing why a specific minimum schedule was rejected.
• Preserve objections that the order is indefinite, unenforceable, or an improper delegation of judicial authority.

Drafting Final Orders After E.K.S.

• Decide whether the case truly warrants non-specific visitation or whether a minimum floor should be included.
• If using “as arranged and agreed” language, identify who supervises, where contact may occur, and whether virtual visitation is allowed.
• Include express best-interest findings supporting the chosen structure.
• Consider adding review mechanisms, graduated expansion terms, or benchmarks tied to testing and treatment compliance.
• Avoid vague language that gives one side unchecked power without standards or accountability.
• Ensure the order’s text aligns with the evidence actually admitted at trial.

Preserving Appellate Error for the Parent Seeking Greater Specificity

• File a written proposed order with a concrete fallback possession schedule.
• Object on the record to a purely open-ended access provision.
• Explain specifically why the absence of a minimum schedule harms the parent-child relationship.
• Request findings of fact and conclusions of law.
• If supervision is not contested, clarify that the complaint concerns indefiniteness or over-delegation, not merely the existence of supervision.
• Develop evidence showing that specific, safe visitation terms are presently feasible.

Using E.K.S. in Private Family Litigation

• Cite the case when defending flexible supervised access in cases involving substance abuse or instability.
• Distinguish the case when your client needs enforceable minimum access and the record lacks similar safety concerns.
• Use it to argue that the Family Code does not impose a universal fallback-schedule requirement.
• Do not overread it as approving all discretionary access provisions; emphasize the record-specific nature of the holding.
• Pair the case with detailed best-interest evidence rather than relying on the opinion alone.

Citation

In the Interest of E.K.S., a Child, No. 05-25-01726-CV, 2026 WL ___ (Tex. App.—Dallas June 23, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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