In the Interest of W.J.G.G., a Child v. the State of Texas

• Court: Texas Court of Appeals, 4th District (San Antonio)
• Decided: July 1, 2026
• Docket: 04-26-00110-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-26-00110-CV

IN THE INTEREST OF W.J.G.G., a Child

From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2025-PA-00492 Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Irene Rios, Justice Lori Massey Brissette, Justice H. Todd McCray, Justice

Delivered and Filed: July 1, 2026

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

This case involves the termination of a father’s parental rights to one child, W.J.G.G., who

was less than a year old at the time of trial. 1 Although we find legally insufficient evidence for

termination under Texas Family Code section 161.001(b)(1)(E), Father does not challenge

termination under Texas Family Code section 161.001(b)(1)(N) or (P). Ordinarily, we must affirm

on those grounds not challenged. However, we also find the evidence factually insufficient to

support the trial court’s finding that termination is in the best interest of W.J.G.G. Accordingly,

1 To protect the identity of the minor child, we will refer to the parents as “Mother” and “Father” and to the child by his initials, W.J.G.G. See TEX. FAM. CODE §109.002(d); TEX. R. APP. P. 9.8(b). Mother signed an affidavit relinquishing her parental rights post-trial. 04-26-00110-CV

we affirm on those grounds not challenged, reverse the trial court’s finding that termination is in

the best interest of W.J.G.G., and remand the cause to the trial court for a new trial to determine

whether termination is in W.J.G.G.’s best interest.

BACKGROUND

Mother and Father had one child together, W.J.G.G. Prior to W.J.G.G being conceived,

Father served time in federal prison after being convicted of conspiracy to transport persons who

had entered the country illegally. After serving that sentence and while on parole, Father violated

a condition of his parole by testing positive for methamphetamines. This also occurred before the

child was conceived. After the child was conceived but before he was born, Father was

incarcerated for the parole violation. Upon the child’s birth, Mother requested the child be placed

with her aunt—a woman who also cares for Mother’s other children—and the child was placed

with her.

After a final trial on January 15, 2026, the trial court issued an order terminating Father’s

rights under Texas Family Code section 161.001(b)(1)(E), (N), and (P). TEX. FAM. CODE

§ 161.001(b)(1)(E), (N) & (P). On appeal, Father challenges the findings of termination only on

the section 161.001(b)(1)(E) ground and that termination is in the best interest of the child under

Texas Family Code section 161.001(b)(2).

STANDARD OF REVIEW

A suit involving the potential termination of a parent’s right to a child is of constitutional

import. See In re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied). We

must therefore strictly scrutinize termination proceedings and construe involuntary termination

statutes strictly in the parent’s favor. In re H.S., No. 24-0307, ___ S.W.3d ___, 2026 WL 1614496,

at *6–7 (Tex. June 5, 2026); see, e.g., D.V. v. Tex. Dep’t of Fam. & Protective Servs., 722 S.W.3d

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854, 858 (Tex. 2025); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); Wiley v. Spratlan, 543

S.W.2d 349, 352 (Tex. 1976). But a parent’s rights “are not absolute. Just as it is imperative for

courts to recognize the constitutional underpinnings of the parent-child relationship, it is also

essential that emotional and physical interests of the child not be sacrificed merely to preserve that

right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Striking that balance, a trial court may terminate

a parent-child relationship, pursuant to Texas Family Code section 161.001, only if it finds by

clear and convincing evidence one predicate ground enumerated in subsection (b)(1) and that

termination is in the child’s best interest. TEX. FAM. CODE § 161.001(b)(1)–(2); see, e.g., In re

C.E., 687 S.W.3d 304, 308 (Tex. 2024). Clear and convincing evidence requires proof that will

produce in the factfinder’s mind “a firm belief or conviction as to the truth of the allegations sought

to be established.” TEX. FAM. CODE § 101.007. This heightened standard “guards the constitutional

interests implicated by termination, while retaining the deference an appellate court must have for

the factfinder’s role.” In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.).

When reviewing the evidence in a parental termination case, we apply the well-established

standards associated with both a legal and factual sufficiency review. In re J.M.G., 608 S.W.3d

51, 53 (Tex. App.—San Antonio 2020, pet. denied). First, in a legal sufficiency review, we “view

the facts in a light favorable to the findings of the trial judge, who heard the testimony, evaluated

its credibility, and dealt the closest with the evidence at hand.” In re R.R.A., 687 S.W.3d 269, 276

(Tex. 2024) (quoting In re J.F.-G., 627 S.W.3d 304, 315 (Tex. 2021)) (internal quotation marks

omitted). We will not substitute our own judgment for that of the factfinder. Id. Instead, the

factfinder is the sole judge of evidentiary weight and credibility, including witness testimony. Id.

We will “defer to the [factfinder’s] determinations, at least so long as those determinations are not

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themselves unreasonable.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting Sw. Bell Tel.

Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004)) (internal quotation marks omitted).

In our review, we must 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 256, 266 (Tex. 2002). Although we

will disregard all evidence contrary to a factfinder’s determination if a reasonable factfinder could

have disbelieved or found it to have been incredible, we will not disregard undisputed evidence

even if it does not support the trial court’s finding. Id.; see, e.g., C.E., 687 S.W.3d at 308.

In our factual sufficiency review, we consider the entire record and determine whether the

evidence contrary to the trial court’s ruling “is so significant that a factfinder could not reasonably

have formed a firm belief or conviction” on the challenged finding. J.F.C., 96 S.W.3d at 266.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE PREDICATE GROUNDS FOR THE TRIAL COURT’S TERMINATION OF FATHER’S PARENTAL RIGHTS

Father’s parental rights were terminated pursuant to multiple predicate grounds under

Section 161.001(b)(1), specifically (E), (N), and (P). But Father challenges only the trial court’s

finding that termination is proper under Texas Family Code section 161.001(b)(1)(E). Because

only one predicate violation under section 161.001(b)(1) is necessary to support a termination

order, regardless of the evidentiary support for termination under Subsection (E), we must affirm

the judgment on the other grounds. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re C.U.D.,

No. 14-21-00427-CV, 2022 WL 711104, at *10 (Tex. App.—Houston [14th Dist.] Mar. 10, 2022,

pet. denied) (mem. op.). Even so, we must still consider Father’s issue relating to the sufficiency

of the evidence to support the trial court’s findings under Subsection (E) because termination under

that subsection may serve as the basis for a termination of Father’s parental rights to other children

in the future. See In re R.R.A., 687 S.W.3d 269, 279 (Tex. 2024); In re N.G., 577 S.W.3d 230, 234

(Tex. 2019).

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TERMINATION OF PARENTAL RIGHTS UNDER SUBSECTION (E)

To terminate parental rights under Texas Family Code section 161.001(b)(1)(E), the

Department must show—by clear and convincing evidence—that 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). Under this subsection,

the focus is on the effect of the parent’s conduct, which must be the result of a conscious course

of conduct rather than a single act or omission. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

Fort Worth 2003, no pet.). It is not necessary for a parent’s conduct to be directed at the child or

that the child be injured; a child is endangered if the environment or the parent’s course of conduct

creates a potential for danger the parent is aware of but disregards. In re R.S.-T., 522 S.W.3d 92,

110 (Tex. App.—San Antonio 2017, no pet.); see also In re J.O.A., 283 S.W.3d 336, 345 (Tex.

2009) (“[E]ndangering conduct is not limited to actions directed towards the child.”). In fact, we

may consider conduct that did not occur in the child’s presence. In re A.B.R., No. 04-19-00631-

CV, 2020 WL 1159043, at *3 (Tex. App.—San Antonio Mar. 11, 2020, pet. denied) (mem. op.).

Father testified that he is currently serving a sentence at Three Rivers Federal Detention

Facility for a parole violation involving a positive urinalysis showing methamphetamine usage in

May of 2024, almost a full year before the child was born and before the child was even conceived.

There was no evidence of usage by Father before or after May of 2024. Father also testified that

he is set to be released from incarceration on June 17, 2026 but will then have twelve months of

supervised release after that date. Finally, Father testified that, since the child was born, he has

engaged in classes while incarcerated (parenting class, drug abuse class, cognitive thinking, and

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anger management), was engaged with the child in visits via videoconference as long as the

Department allowed, and even attended the child’s doctor’s visit via videoconference. 2

The first question under Subsection E is whether there is some evidence that Father

“engaged in conduct . . .which endangers the physical or emotional well-being of the child.” TEX.

FAM. CODE § 161.001(b)(1)(E). The Department argues Father’s “drug use and consistent

incarceration show a course of conduct that endangers [the child’s] physical and emotional well-

being.”

But, the only evidence of Father’s “drug use” is a single positive test result that occurred

before W.J.G.G. was even conceived. The Texas Supreme Court has explained, illegal drug use

alone—much less a lone, positive drug test—is insufficient to demonstrate endangerment because

it is not “a pattern of parental behavior that presents a substantial risk of harm to the child.” R.R.A.,

687 S.W.3d at 278; see, e.g., In re K.N., No. 24-0881, ___ S.W.3d ___, 2026 WL 1614378, at *14

(Tex. June 5, 2026) (same, quoting R.R.A.); In re C.V.L., 591 S.W.3d 734, 751–52 (Tex. App.—

Dallas 2019, pet. denied) (providing “finding of endangerment based on drug use alone is not

automatic” and concluding evidence of subsection (E) factually insufficient because it did not rise

to course of conduct where father used methamphetamines on two occasions). Instead, we must

consider additional evidence that a factfinder could reasonably credit that demonstrates that the

illegal drug use presented a risk to the parent’s ability to parent their child. See K.N., 2026 WL

1614378, at *14. This is not a case where the Department alleged Father used drugs in front of the

child, missed multiple drug tests, left the child in the care of drug users, or was ever charged with

2 Normally, in a legal sufficiency review we would begin and end with the evidence supporting the trial court’s judgment, but other than Father’s testimony, there was no evidence offered going to Father’s conduct. Although the trial court, as sole arbiter of the credibility of witnesses and weight to be given the testimony, can certainly choose not to believe Father’s testimony, there is simply nothing else in the record on which the trial court could have relied.

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drug possession. See C.V.L., 591 S.W.3d at 752. 3 Indeed, we have found no caselaw where a

parent’s rights were terminated based on a lone drug test, much less one administered before the

child was even conceived. Accord. In re A.S., 261 S.W.3d 76, 87 n.13 (Tex. App.—Houston [14th

Dist.] 2008, pet. denied) (“We are unaware of any cases in which a single use of marijuana—or

any drug—during pregnancy has, alone, been held sufficient to constitute a “course of conduct” to

support termination under subsection (E).”). This case is more akin to the Austin Court of Appeals’

decision in In re M.G.P., where our sister court found the evidence insufficient to support

termination when a mother’s alleged drug use was limited to the time before she knew that she

was pregnant and the mother quit using drugs when she learned that she was pregnant. See No. 02-

11-00038-CV, 2011 WL 6415168, at *11 (Tex. App.—Fort Worth Dec. 22, 2011, pet. denied)

(mem. op.).

And given the far-reaching implications of a finding of termination under Subsection E,

specifically that it can be used to terminate Father’s rights to other children in the future, it is

particularly troublesome to rely on a single act committed by a person before they became a parent

at all. See TEX. FAM. CODE § 161.001(b)(1)(M). This is not a case where the Department contends

Father chronically used, was addicted, or occasionally used drugs while he was with the children.

See K.N., 2026 WL 1614378, at *14. Accordingly, that one test result, showing conduct before

Father was even aware he would be a father, is not evidence sufficient to produce in the factfinder’s

mind “a firm belief or conviction as to the truth of the allegations sought to be established”—

3 Nor is it a case where Father used illegal drugs both before and after the child’s birth, establishing a course of conduct, or where a mother used illegal drugs during the pregnancy, directly endangering the child’s physical health. See, e.g., In re A.M., No. 02-24-00199-CV, 2024 WL 4157766, at *12 (Tex. App.—Fort Worth Sept. 12, 2024, pet. denied) (drug use during pregnancy); In re J.A.V., 632 S.W.3d 121, 131 (Tex. App.—El Paso 2021, no pet.) (drug abuse both before and after child’s birth).

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specifically that Father engaged in a course of conduct that created a potential for danger which

he was aware of but chose to disregard.

But we may not evaluate Father’s lone, positive drug test in isolation; we must perform a

“holistic” endangerment review and consider the conduct in “aggregate,” i.e., alongside Father’s

incarceration. In re A.V., 697 S.W.3d 657, 659 (Tex. 2024) (per curiam) (citing R.R.A.); R.R.A.,

687 S.W.3d at 278, 281. Allowing imprisonment to constitute sufficient evidence of endangerment

under Subsection (E), without more, would mean “termination of parental rights could become an

additional punishment automatically imposed along with imprisonment for almost any crime.” In

re D.T., 34 S.W.3d 625, 633 (Tex. App.—Fort Worth 2001, pet. denied); see, e.g., K.N., 2026 WL

1614378, at *13 (providing isolated criminal misconduct resulting in incarceration does not

necessarily suffice if it does not, standing alone, demonstrate engaging in conduct which endangers

emotional or physical well-being of child). And again, given the ramifications of a termination

under Subsection E, not just for this child but for any other child Father might have in the future,

such an automatic sanction would certainly raise constitutional concerns.

Instead, a parent’s criminal history—taking into account the nature of the crime, the

duration of incarceration, and whether there is a pattern of escalating, repeated convictions—may

support an endangerment finding. J.F.-G., 627 S.W.3d at 313. Here, Father served a full prison

sentence, prior to the child being conceived, for conspiracy to transport persons who had entered

the country illegally—a crime, the nature of which, does not necessarily involve violence or drug

use. See id.; see also K.N., 2026 WL 1614378, at *13 (holding termination implicates foundational

rights that require government to clear high bar—and not all criminal misconduct “justifies this

most draconian of sanctions”); In re E.N.C., 384 S.W.3d 796, 805 (Tex. 2012) (rejecting

contention that any offense that could lead to imprisonment or confinement would establish

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endangerment). Since then, Father has been convicted of no other crimes. Nor is there any

indication that Father endangered the safety of a child that had not yet been conceived when he

was incarcerated for conspiracy. See J.F.-G., 627 S.W.3d at 313; In re F.M.E.A.F., 572 S.W.3d

716, 733 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). At the time of trial, Father was

incarcerated for a parole violation based on a single positive drug test—the same drug test the

Department cites as support for its contention he was “consistent[ly] incarcerat[ed]” and therefore

subject to termination under (E). But one conviction for a nonviolent, non-drug-related crime,

resulting in incarceration before the child was conceived, followed by incarceration for a lone,

positive drug test parole violation, can hardly support “a pattern of escalating, repeated

convictions” demonstrating a course of conduct that endangers a child. J.F.-G., 627 S.W.3d at 313.

And Father was scheduled to be released in June of 2026. See J.F.-G., 627 S.W.3d at 316 (“Not

all incarceration means that a parent will be absent from a child’s life for a lengthy duration.”). 4

In short, one nonviolent conviction and one drug test resulting in a parole violation—all

before a child was conceived—are not enough. Accordingly, we do not find legally sufficient

evidence to support termination under Texas Family Code section 161.001(b)(1)(E) and, for that

reason, modify the final judgment to delete Subsection (E) as a ground for termination of Father’s

rights. See R.R.A., 687 S.W.3d at 278; A.V., 697 S.W.3d at 659.

LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE TRIAL COURT’S FINDING THAT TERMINATION IS IN THE BEST INTEREST OF THE CHILDREN

Father also argues the evidence was legally and factually insufficient to support the trial

court’s findings that termination of his parental rights is in the best interest of the child. Under

4 Father was the only witness to testify regarding his release date, and no evidence was offered in dispute of his testimony. Thus, the only evidence before the court was that Father would be released from incarceration in June of 2026 and would have twelve months of supervised release after that. Although the trial court may have questioned his testimony, there was no evidence offered to refute it.

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Texas law, “there is a strong presumption that the best interest of a child is served by keeping the

child with a parent.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). Terminating

parental rights “must always be a last resort and never a first impulse.” K.N., 2026 WL 1614378,

at *1. However, a trial court must also presume “the prompt and permanent placement of the child

in a safe environment is . . . in the child’s best interest.” TEX. FAM. CODE § 263.307(a). In making

a best-interest determination, the factfinder looks at the entire record and considers all relevant

circumstances. C.H., 89 S.W.3d at 27–29.

The Texas Legislature codified certain factors to use in determining the best interest of a

child, including: (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and

nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm

to the child; (4) whether the child has been the victim of repeated harm after the initial report and

intervention by the department; (5) whether the child is fearful of living in or returning to the

child’s home; (6) the results of psychiatric, psychological, or developmental evaluations of the

child; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others

who have access to the child’s home; (8) whether there is a history of substance abuse by the

child’s family or others who have access to the child’s home; (9) whether the perpetrator of the

harm to the child is identified; (10) the willingness and ability of the child’s family to seek out,

accept, and complete counseling services and to cooperate with and facilitate an appropriate

agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive

environmental and personal change within a reasonable period of time; (12) whether the child’s

family demonstrates adequate parenting skills, including providing the child and other children

under the family’s care with adequate health and nutritional care, appropriate discipline, a safe

physical home environment, and protection from repeated exposure to violence; (13) and whether

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an adequate social support system is available for the child. TEX. FAM. CODE § 263.307(b); see In

re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018).

Even before the Legislature took action to codify section 263.307(b), the Texas Supreme

Court, in Holley v. Adams, identified factors to determine the best interest of a child, including:

(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future;

(C) the emotional and physical danger to the child now and in the future; (D) the parental abilities

of the individuals seeking custody; (E) the programs available to assist these individuals to

promote the best interest of the child; (F) the plans for the child by these individuals or by the

agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or

omissions of the parent which may indicate that the existing parent-child relationship is not a

proper one; and (I) any excuse for the acts or omissions of the parent. 544 S.W.2d 367, 371–72

(Tex. 1976).

The Department does not have to prove every factor for a trial court to find termination is

in the child’s best interest. C.H., 89 S.W.3d at 27. In our review of the trial court’s best-interest

findings, we must consider “the totality of the circumstances” in light of these factors to determine

whether sufficient evidence supports the challenged finding. In re B.F., No. 02-07-334-CV, 2008

WL 902790, at *11 (Tex. App.—Fort Worth Apr. 3, 2008, no pet.) (mem. op.). Additionally, “[a]

trier of fact may measure a parent’s future conduct by his past conduct and determine whether

termination of parental rights is in the child’s best interest.” In re E.D., 419 S.W.3d 615, 620 (Tex.

App.—San Antonio 2013, pet. denied).

But the Department barely put on any evidence demonstrating W.J.G.G.’s best interest. See

H.S., 2026 WL 1614496, at *13 (“Just as striking as what the record contains is what it does not

contain. . . . When a family’s continued existence is on the line and the department must produce

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clear and convincing evidence, Texas courts may not just presume that supporting evidence exists

in some undisclosed location.”); In re T.J.I.L., No. 01-23-00693-CV, 2024 WL 1169526, at *12

(Tex. App.—Houston [1st Dist.] Mar. 19, 2024, no pet.) (mem. op.) (“In some cases, undisputed

evidence of only one factor may be sufficient to support a finding that termination is in the child’s

best interest; in other cases, there could be ‘more complex facts in which paltry evidence relevant

to each consideration mentioned in Holley would not suffice’ to support termination.” (quoting

C.H., 89 S.W.3d at 27)). No evidence was offered at trial going to the child’s physical or mental

vulnerabilities other than his age, being just over one year old at the time of trial. The child is

stable, placed with his maternal aunt and siblings. He has not been the subject of harm, and there

has been no psychiatric, psychological, or developmental evaluations done. There was no evidence

of abusive or assaultive conduct. There was evidence that Father tested positive on a drug test

before the child was conceived and that Mother gave up the child knowing she could not care for

the child. Father has been incarcerated, but he has sought out classes for parenting, cognitive

thinking, anger management, and drug abuse, was engaged with the child in videoconference visits

as long as the Department allowed, and even attended the child’s doctor visit via videoconference.

There was no evidence offered regarding Father’s ability to parent, other than the limitations

created by his immediate incarceration, or regarding Father’s social support system. It was noted,

however, that he desired for his mother to be the child’s caretaker while he was incarcerated,

indicating he has family support.

In the context of termination of parental rights, the trial court is not simply determining

whether it is in the best interest of the child to have a conservator other than the parent. Nor is it

merely determining whether a child might have a better life with some other caregiver. See In

Interest of R.S., No. 02-18-00127-CV, 2018 WL 4183117, at *2 (Tex. App.—Fort Worth Aug. 31,

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2018, no pet.) (providing best interest not “met merely with evidence that the child is better off

living elsewhere”). If that is the focus, then the trial court would have more appropriately acted

under Texas Family Code section 263.040(a) which allows the trial court to render a final order

appointing a conservator without terminating the rights of the parent if the court finds

(a) appointment of parent as managing conservator would not be in the best interest of the child

because it would significantly impair the child’s physical health or emotional development; and

(b) it is not in the child’s best interest to appoint a relative of the child or another person as

managing conservator. See generally In re M.A.T.T., No. 04-25-00294-CV, 2025 WL 3542057, at

*11 (Tex. App.—San Antonio Dec. 10, 2025, no pet.) (mem. op.) (noting evidence failed to

support finding that it was not in best interest of child to have relative appointed as conservator).

In other words, the trial court is empowered to protect the child’s placement, allow the child to be

raised with his siblings, and even to extricate the Department from the child’s life by appointing a

relative as conservator—all without terminating Father’s rights as a parent. See TEX. FAM. CODE

§ 263.404(a); M.A.T.T., 2025 WL 3542057, at *11. K.N., 2026 WL 1614378, at *11 (holding

where father showed evidence legally insufficient to establish endangerment under subsection (E),

it may be appropriate for lower courts to reassess appointment of the Department as managing

conservator); H.S., 2026 WL 1614496, at *13 (providing it may well be in child’s best interest to

remain connected with parent even after parent has committed one of actions described in (b)(1)

if parent is on path to rehabilitation and reunification). 5

5 The Texas Child Welfare Law Bench Book specifically sets out the options available upon final trial of a case brought by the Department to protect the child’s best interest. They include: • Enter a final decree of conservatorship that returns the child to the parent or caregiver and dismisses DFPS; • Enter a final decree of conservatorship that gives a relative permanent managing conservatorship, with or without termination of parental rights, and dismisses DFPS; or

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But, in this case, the trial court determined it was in the best interest of the child to terminate

any legal relationship with his parent—to wipe the parent out of the child’s life forever and to

forestall any future ability of the parent to gain access if his circumstances improve. In re J.W.,

645 S.W.3d 726, 751 (Tex. 2022) (providing termination of parental rights is “death penalty of

civil cases” (quoting In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring))).

Although the evidence clearly demonstrates that the child is in an appropriate placement and that

Father is not able to be a conservator at this time, the only other factor that even tends to support

termination is that he is currently incarcerated. But a parent’s incarceration does not automatically

establish termination of their parental rights is in the child’s best interest. In re S.R.L., 243 S.W.3d

232, 236 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (citing C.T.E., 95 S.W.3d at 466).

And, despite his incarceration, it is undisputed that he has actively sought to prepare

himself to be a good parent upon his release, has sought to have his mother involved in the child’s

life, and has demonstrated an active desire to be part of the child’s life. See S.R.L., 243 S.W.3d at

236 (concluding evidence insufficient to support best interest finding where imprisoned parent

with violent and unstable past, presented substantial and uncontradicted evidence he turned life

around, took anger management classes, complied with all portions of service plan possible in

prison, developed job skills, has home and family support structure in place to help upon release,

and judge found he had never “done anything bad” to children). C.T.E., 95 S.W.3d at 467–69

(holding evidence insufficient to support best interest finding when, among other things,

• Enter a final decree of conservatorship that names DFPS as the permanent managing conservator, with or without termination of parental rights. SUPREME COURT OF TEXAS PERMANENT JUDICIAL COMMISSION FOR CHILDREN, YOUTH AND FAMILIES, TEXAS CHILD WELFARE LAW BENCH BOOK http://benchbook.texaschildrenscommission.gov/library_item/gov.texaschildrenscommission.benchbook/104 (last visited June 1, 2026) (“Statutory: Final Hearing”)

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incarcerated father had prepared to be reunited with family by taking parenting and anger

management classes, and job training). And although the trial court appeared to impliedly reject

Father’s testimony regarding the timing of his release, that evidence was not disputed, and there

was no evidence offered to prove that he would be incarcerated more than two years post filing

date. See TEX. FAM. CODE § 161.001(b)(1)(P) (providing termination on ground that parent

knowingly engaged in criminal conduct that has resulted in the parent’s conviction, confinement,

and inability to care for the child for not less than two years from date of filing petition);

F.M.E.A.F., 572 S.W.3d at 733 (finding evidence legally insufficient where, among other things,

mother was expected to be released from jail only a few months after the final hearing). None of

the remaining factors set forth in section 263.307(b) or in Holley weigh in favor of termination of

Father’s parental rights as being in W.J.G.G.’s best interest.

Mindful of our standard of review, we recognize the trial court reasonably could have

determined that the maternal aunt has provided a safe and stable home for W.J.G.G., that Father

was incarcerated and could not do so, and that there was minimal evidence in the record of past,

sustained periods of parenting by Father. We therefore hold that the evidence is legally sufficient

that termination of Father’s parental rights is in W.J.G.G.’s best interest. However, weighing all

the evidence and considering the section 263.307(b) and Holley factors, considering the disputed

and undisputed evidence presented at trial, and giving deference to the trial court’s role as

factfinder and judge of witness credibility, we conclude the evidence that a reasonable factfinder

could not have credited in favor of the best-interest finding is so significant that a factfinder could

not reasonably have formed a firm belief or conviction that termination of Father’s parental rights

was in W.J.G.G.’s best interest. See J.F.C., 96 S.W.3d at 266. As a result, we hold the evidence is

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factually insufficient to support that termination of Father’s parental rights is in W.J.G.G.’s best

interest.

CONCLUSION

We affirm the trial court’s February 11, 2026 order of termination on the grounds of Texas

Family Code section 161.001(b)(1)(N) and (P), modify the order to delete its finding on Texas

Family Code section 161.001(b)(1)(E), reverse the trial court’s finding that termination is in the

best interest of W.J.G.G., and remand the cause for a new trial on best interest. See J.O.A., 283

S.W.3d at 345; K. L. v. C.P., No. 03-22-00704-CV, 2023 WL 3853624, at *9 (Tex. App.—Austin

June 7, 2023, no pet.) (mem. op.) (remanding case for new trial solely on issue of best interest); In

re K.D., 471 S.W.3d 147, 178 (Tex. App.—Texarkana 2015, no pet.) (same).

Lori Massey Brissette, Justice

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