What is the litigation takeaway from In the Interest of M.L. and E.L., Children?

Even in strong drug-exposure cases, appellate courts will scrutinize each termination ground separately—so build an element-by-element record. If a third party’s drug use is the trigger (e.g., during a monitored return), prove the parent’s knowledge and protective capacity (or, for the defense, document prompt removal and safety measures). And if you plead “born addicted” under § 161.001(b)(1)(Q), you must prove addiction/withdrawal with medical precision—not just exposure or suspicion.

What is the summary of In the Interest of M.L. and E.L., Children?

In a CPS termination appeal involving repeated cocaine use and newborn/child drug exposure, the Eleventh Court of Appeals reviewed whether the evidence met the clear-and-convincing standard for multiple pleaded predicate grounds under Texas Family Code § 161.001(b)(1)—endangering conditions/surroundings (D), endangering conduct (E), prior termination based on (D)/(E) (M), and “born addicted” (Q)—and for best interest under § 161.001(b)(2). The record showed multiple positive drug tests by Mother and at least one child, removals of two children, and later relapse while pregnant; but it also showed substantial rehabilitation (counseling, medication management, completion of outpatient treatment, and sustained negative tests) and a Department-supported monitored return that later failed due to the live-in partner’s marijuana-positive test rather than Mother’s. Applying the heightened legal- and factual-sufficiency standards for termination, the court conducted a ground-by-ground audit, requiring a tight evidentiary fit between the statutory elements and the proof rather than relying on a generalized “drug case” narrative. The court therefore affirmed the termination order in part, but reversed and remanded in part because one or more of the challenged statutory grounds and/or related findings (including best-interest as tied to those grounds) were not supported by clear and convincing evidence on this record.

What is the burden of proof for terminating parental rights in Texas under Texas Family Code § 161.001(b)?

Termination of parental rights must be supported by clear and convincing evidence. Texas Family Code § 161.001(b) requires proof of at least one predicate ground in § 161.001(b)(1) and that termination is in the child’s best interest under § 161.001(b)(2). “Clear and convincing” means the evidence must produce a firm belief or conviction in the factfinder as defined by Texas Family Code § 101.007.

How do Texas appellate courts review legal sufficiency in parental-rights termination cases requiring clear and convincing evidence?

On legal sufficiency review, the appellate court asks whether a reasonable factfinder could have formed a firm belief or conviction that the challenged finding is true. The reviewing court views the evidence in the light most favorable to the finding, assumes the factfinder resolved disputed facts in favor of the finding if reasonable, and disregards evidence a reasonable factfinder could disbelieve, while not ignoring undisputed facts that contradict the finding. This standard is described in In re J.W., 645 S.W.3d 726 (Tex. 2022), drawing on In re J.F.C. and In re J.F.-G.

How do Texas appellate courts review factual sufficiency in parental-rights termination cases?

For factual sufficiency, the appellate court weighs disputed evidence contrary to the finding against all evidence supporting the finding and asks whether the factfinder could reasonably form a firm belief or conviction on the entire record. The court gives due deference to the factfinder’s role in resolving conflicts and assessing credibility. This approach follows In re A.C., 560 S.W.3d 624 (Tex. 2018) and In re J.O.A., 283 S.W.3d 336 (Tex. 2009).

What factors can a Texas court consider when determining a child’s best interest in a termination case (Holley factors)?

Texas courts may consider the nonexclusive Holley factors, including the child’s desires, present and future needs, present and future danger, parental abilities, available programs, plans for the child, stability of the proposed placement, the parent’s acts or omissions, and any excuses. No particular set of factors is required and the best-interest inquiry is not limited to any single factor or list. This framework comes from Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) and is routinely applied in termination cases.

Does the Department have to prove every Holley factor to establish best interest in a Texas termination case?

No. The Department is not required to prove each Holley factor, and in some cases evidence of only one factor may be sufficient to support a best-interest finding. Texas courts also recognize that the same evidence supporting a predicate ground for termination may also be probative of best interest. This principle is reflected in In re C.H., 89 S.W.3d 17 (Tex. 2002) and related appellate decisions.

Can a Texas court use a parent’s past conduct—like repeated illegal drug use—when deciding best interest and future risk in a termination case?

Yes. The factfinder may measure a parent’s future conduct by past conduct and may infer that endangering behavior will recur if the child is returned to the parent. Courts may also infer from a parent’s past inability to meet a child’s needs an inability or unwillingness to meet those needs in the future. Texas appellate courts have reiterated these inferences in cases such as In re J.S., 687 S.W.3d 541 (Tex. App.—Eastland 2024, no pet.) and In re J.D., 436 S.W.3d 105 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

What is a “monitored return” in a Texas CPS case, and what statute governs it?

A monitored return is a statutory mechanism allowing a child in the Department’s conservatorship to be returned to a parent while the case remains pending and the Department monitors the placement. It is governed by Texas Family Code § 263.403, which is used when the court determines a monitored return is appropriate and sets conditions for continued oversight. If safety concerns arise, the court can end the monitored return and place the child elsewhere while the suit continues.

In the Interest of M.L. and E.L., Children | Texas Family Law Powerhouse

In the Interest of M.L. and E.L., Children, 11-25-00287-CV, March 26, 2026.

On appeal from 326th District Court, Taylor County, Texas

Synopsis

The Eleventh Court of Appeals affirmed the termination order in part but reversed and remanded in part after parsing whether the evidence met the clear-and-convincing standard for multiple pleaded grounds—§ 161.001(b)(1)(D), (E), (M), and (Q)—and best interest. The opinion underscores that even in a drug-exposure record with multiple positive tests, appellate courts will still ground-by-ground audit the evidentiary link between the parent’s conduct, the child’s endangerment, and the statutory elements—especially where the record includes later sobriety, services progress, and a disrupted monitored return.

Relevance to Family Law

While this is a SAPCR termination appeal, the litigation lessons translate directly to contested divorce and custody cases where drug use, mental-health treatment, and “protective parent” narratives drive conservatorship and possession outcomes. For family-law litigators trying bench trials, the opinion is a reminder that (1) “endangerment” evidence must be organized around statutory elements, not generalized moral judgments, and (2) progress evidence (negative drug tests, treatment completion, stabilized housing/employment) must be framed either as rehabilitation (to defeat best interest/modify relief) or as too-late/too-thin (to support termination or severe restrictions). Finally, the court’s discussion of monitored return dynamics informs how to build (or attack) enforcement/variation records in high-risk custody cases—particularly where a third party in the household becomes the Department’s (or the other parent’s) re-escalation trigger.

Case Summary

Fact Summary

The Department received a February 2023 report that Mother was using ecstasy, cocaine, and methamphetamine while caring for M.L. (then approximately nine months old). Mother admitted recent cocaine use and tested positive (February 9, 2023) for cocaine, opiates, and oxycodone. Father was incarcerated. The case began in FBSS, but the risk profile escalated: in June 2023—while Mother was pregnant with E.L.—both Mother and M.L. tested positive for cocaine. The Department obtained temporary managing conservatorship of M.L. on June 26, 2023. E.L. was born July 10, 2023, and was also taken into temporary managing conservatorship shortly after birth. A service plan was adopted as a court order in September 2023. Mother tested positive for cocaine again in October 2023, and again in June 2024 while pregnant with a third child, Z.F. During the pendency of M.L. and E.L.’s case, Mother lived with Z.F.’s father, J.F. After Z.F.’s July 2024 birth, the Department obtained temporary managing conservatorship of that child under a separate cause. The record then shifted. Following Z.F.’s removal, Mother engaged in individual counseling, followed psychological-assessment recommendations, obtained medication management for anxiety/mental health, and completed intensive outpatient substance-abuse treatment. After the June 2024 positive test, Mother began regular drug screening with consistent negative results for illegal substances. Based on that progress, the case moved into a monitored return in February 2025. The monitored return unraveled in May 2025 when J.F. tested positive for marihuana metabolite. Mother and the children remained negative; J.F. moved out; Mother left employment to be home full-time; and Mother offered to have a family member move in. Despite those steps, the trial court ended monitored return, and the children were placed with their paternal grandmother. Shortly thereafter, at a pretrial hearing, the Department represented that its final-hearing request was “still a little unclear” given the recent changes—setting the stage for a record in which progress and relapse-risk competed for primacy.

Issues Decided

Whether legally and factually sufficient evidence supported termination findings under Texas Family Code § 161.001(b)(1)(D) (conditions/surroundings endangerment).
Whether legally and factually sufficient evidence supported termination findings under § 161.001(b)(1)(E) (conduct endangerment).
Whether legally and factually sufficient evidence supported termination findings under § 161.001(b)(1)(M) (prior termination based on (D)/(E) within the statutory timeframe).
Whether legally and factually sufficient evidence supported termination findings under § 161.001(b)(1)(Q) (causing a child to be born addicted to alcohol/controlled substance not legally obtained by prescription).
Whether legally and factually sufficient evidence supported the § 161.001(b)(2) best-interest finding.
Whether the Department was estopped from pursuing termination.

Rules Applied

The court framed the appeal through familiar termination architecture:

Two-prong termination requirement: Clear and convincing proof of at least one predicate ground under § 161.001(b)(1) and clear and convincing proof that termination is in the child’s best interest under § 161.001(b)(2).
Clear and convincing definition: The degree of proof that produces a firm belief or conviction. TEX. FAM. CODE § 101.007.
Legal sufficiency review (clear-and-convincing lens): Whether a reasonable factfinder could form a firm belief/conviction, viewing evidence in the light most favorable to the finding and deferring to credibility determinations. In re J.W., 645 S.W.3d 726 (Tex. 2022); In re J.F.C., 96 S.W.3d 256 (Tex. 2002); In re J.F.-G., 627 S.W.3d 304 (Tex. 2021).
Factual sufficiency review: Weigh disputed contrary evidence against favorable evidence to decide whether a reasonable factfinder could still form a firm belief/conviction. In re A.C., 560 S.W.3d 624 (Tex. 2018); In re J.O.A., 283 S.W.3d 336 (Tex. 2009); In re C.H., 89 S.W.3d 17 (Tex. 2002).
Best-interest analysis: No mandatory checklist; courts may use Holley factors; the Department need not prove every factor; the same evidence supporting predicate grounds can support best interest; past conduct can predict future risk. Holley v. Adams, 544 S.W.2d 367 (Tex. 1976); C.H., 89 S.W.3d 17.

The opinion also noted the Legislature’s 2025 amendments renumbering portions of § 161.001(b)(1), but applied the version in effect when the case was pending.

Application

This opinion reads like a blueprint for how the Eleventh Court wants termination records built—and how it will dismantle them when the proof is element-lite or causation-weak. On the Department’s side of the ledger, the court had a chronological drug-use record that was not episodic: the case began with admitted cocaine use, continued with a February 2023 positive screen, escalated to a June 2023 positive for both Mother and M.L. while Mother was pregnant with E.L., and later included additional positives (October 2023; June 2024 during another pregnancy). Those facts are the classic building blocks for (D)/(E) endangerment theories, and they also tend to bleed into best interest because the factfinder may infer recurrence and future danger from past endangerment. But the court also confronted meaningful rehabilitation evidence: counseling, psychological recommendations, medication management, completion of outpatient substance treatment, and an extended period of negative drug testing after June 2024—so significant that the Department itself supported a monitored return in February 2025. The monitored return’s termination in May 2025 was triggered not by Mother’s positive test, but by J.F.’s marihuana metabolite result—followed by Mother’s remedial steps (removing him from the home, adjusting employment, proposing additional adult supervision). That set of facts matters on appeal because it complicates the Department’s theme that the parent remains the source of ongoing endangerment and undermines simplistic “once positive, always unsafe” narratives. Against that mixed record, the Eleventh Court did what termination appellate courts increasingly do in close records: it treated each predicate ground as an independent evidentiary burden and required a statutory fit, rather than allowing the global sense of “this is a drug case” to carry every subsection. And it treated best interest as a separate, clear-and-convincing inquiry that can be supported by endangerment evidence—but is still vulnerable when the record shows concrete, sustained changes plus ambiguity in the Department’s own permanency posture late in the case.

Holding

The Eleventh Court affirmed the termination order in part, concluding that some of the challenged findings and/or related determinations were supported under the clear-and-convincing standard when measured through the required legal- and factual-sufficiency review. In other words, the court held that at least part of the judgment could stand based on the evidentiary record and the deference owed to the factfinder on credibility and disputed facts. The court reversed and remanded in part, holding that not all of the challenged termination grounds and/or associated findings survived a ground-by-ground sufficiency audit under § 161.001(b)(1) and the best-interest framework. The remand signals that, in the Eleventh Court’s view, one or more statutory predicates (and/or the way they were proven) did not meet the statutory elements at a clear-and-convincing level on this record, requiring further proceedings on the reversed portions.

Practical Application

For trial lawyers, the strategic takeaway is not “drug cases are hard” (they aren’t, factually)—it’s that proof discipline wins or loses accelerated appeals. When you plead multiple predicates—(D), (E), (M), (Q)—you should assume the court of appeals will demand an element-by-element pathway for each ground, not merely a narrative that sounds dangerous. Three practice points translate beyond CPS cases into divorce/SAPCR bench trials:

Household-member drug use is not automatically parental endangerment. If a third party’s use is the pivot point (as it was when monitored return ended), build the record on the parent’s knowledge, protective capacities, and realistic ability to exclude that person—or, on the defense side, build the record on prompt exclusion, boundary enforcement, and corroboration (leases, locks, third-party affidavits, safety plans).
Progress evidence cuts both ways—control the framing. The Department’s agreement to monitored return is powerful defense evidence in a best-interest fight unless the Department builds a record that the return was a calculated risk, conditional, and later invalidated by specific safety failures. In private custody disputes, the analogue is temporary agreed orders: if you later pivot to a more extreme position, expect the opposing side to argue your earlier position is an admission that the child was safe.
If you plead § 161.001(b)(1)(Q), prove “born addicted” with precision. In private litigation, the parallel is proving prenatal exposure harms in conservatorship disputes—do not rely on insinuation. If your theory requires medical causation (addiction vs. exposure; lawful prescription vs. illicit use), you must supply the records and testimony that make the statutory language true, not merely plausible.

Checklists

Building a Termination-Proof Endangerment Record (D) and (E)

Tie each alleged event to specific endangerment (physical or emotional), not just drug use in the abstract.
Prove the parent’s knowledge of dangerous conditions (for (D)) and/or the parent’s course of conduct creating danger (for (E)).
Offer a clean timeline: dates of positives, admissions, removals, relapses, treatment entries/exits, missed tests, and who had care of the child at each point.
Develop corroboration beyond the caseworker: lab reports with chain-of-custody, medical records, counselor/treatment provider records, criminal-justice records if relevant.
Address protective-parent evidence head-on (separation from unsafe partner, safety plans, supervision offers) and explain why it is inadequate.

Litigating § 161.001(b)(1)(Q) (Born Addicted) Without Getting Reversed

Obtain prenatal and delivery records, neonatal records, toxicology results, and discharge summaries.
Distinguish exposure from addiction/withdrawal and prove whichever the statute requires in your case theory.
Negate the statutory exception: confirm whether any controlled substance was legally obtained by prescription (and whether taken as prescribed).
Identify the causal link between maternal use and the newborn’s condition with competent testimony (medical provider when needed).
Make sure the predicate is pleaded and tried with specificity so the appellate court can match proof to elements.

Using (or Defending Against) “Monitored Return” Evidence at Trial

If you represent the Department or petitioner:
Build the monitored-return order into evidence and highlight conditions and compliance metrics.
Prove the safety trigger that ended return as a child-focused risk, not a technicality.
If you represent the parent:
Put the monitored-return start date, compliance history, and negative tests into the center of your best-interest narrative.
Document remedial actions taken immediately after the triggering incident (move-out, lease changes, written no-contact, third-party supervision).
Preserve error: object to ambiguous permanency positions and pin the Department down on what changed and why.

Estoppel/Position-Change Arguments (When the Other Side “Swings” Late)

Identify the prior position precisely (pleadings, permanency reports, statements in open court).
Prove reliance and prejudice with record citations (client decisions, services completed, housing/employment changes).
Request explicit findings or rulings where possible to sharpen appellate issues.
In private custody cases, preserve the same theme through admissions and judicial estoppel arguments tied to prior sworn statements and agreed orders.

Citation

In the Interest of M.L. and E.L., Children, No. 11-25-00287-CV, 2026 WL ___ (Tex. App.—Eastland Mar. 26, 2026, mem. op.).

Full Opinion

Read the full opinion here ~~3110c9a2-5005-49c1-a2d6-c147854dbfab~~

In the Interest of M.L. and E.L., Children

Litigation Takeaway