Endangerment Without Direct Harm: Criminal History, Incarceration, and Termination of Parental Rights Under Texas Family Code § 161.001(b)(1)(E)

I. Introduction

A. Overview of the Case

The Supreme Court of Texas’s per curiam opinion in In the Interest of N.L.S. and E.J.C. a/k/a E.J.C., Children, No. 23‑0965 (Tex. June 13, 2025), addresses the recurring question of how far a parent’s criminal history and repeated incarceration can go toward proving “endangerment” for purposes of involuntary termination of parental rights under Texas Family Code § 161.001(b)(1)(E).

The case arises from the termination of the father’s (“Father’s”) parental rights to his son, N.L.S., after the Department of Family and Protective Services (“the Department”) removed the child from the mother’s home due to neglect. Father had a long and escalating criminal history, with repeated incarcerations that left him largely absent from the child’s life.

The First Court of Appeals reversed the trial court’s termination order as to Father, holding that the Department had failed to prove a sufficient causal link between Father’s criminal conduct and any endangerment to the child. The Supreme Court reversed, holding that the court of appeals’ approach conflicted with its recent authority and that legally sufficient evidence supported an endangerment finding under § 161.001(b)(1)(E). The case was remanded for the court of appeals to consider unaddressed factual-sufficiency and best-interest challenges.

A dissenting opinion by Chief Justice Blacklock (joined by Justices Devine and Sullivan) is noted but not reproduced in the provided text; accordingly, this commentary focuses on the majority’s reasoning and doctrinal developments.

B. Central Legal Issue

The core issue before the Supreme Court was:

Whether legally sufficient evidence supported the trial court’s finding that Father “engaged in conduct . . . which endangers the physical or emotional well-being” of his child under Texas Family Code § 161.001(b)(1)(E).

Embedded within this question are two important sub-issues:

How the statutory term “endanger” in § 161.001(b)(1)(E) should be interpreted in light of the Court’s recent decision in In re R.R.A., 687 S.W.3d 269 (Tex. 2024).
To what extent a parent’s criminal history, repeated incarcerations, and minimal involvement with the child can, without proof of direct harm or a tight causal chain, provide legally sufficient evidence of endangerment.

C. Parties and Procedural Posture

Children:
- N.L.S. – Father’s biological child; subject of this appeal.
- E.J.C. – younger child, not Father’s biological child; her father’s rights were also terminated but not appealed.
Mother: Her parental rights to both children were terminated; that judgment was affirmed by the court of appeals, and she did not seek review in the Supreme Court.
Father: Biological father of N.L.S.; incarcerated at time of trial and appeal; challenges termination of his rights to N.L.S.
Department: Petitioner seeking to uphold termination and appointment as managing conservator.

Procedurally:

The trial court terminated both parents’ rights and appointed the Department as sole managing conservator.
Father appealed; the court of appeals:
- Reversed as to Father, holding legal insufficiency on the endangerment ground under § 161.001(b)(1)(E).
- Did not reach factual sufficiency or best-interest issues as to Father.
- Affirmed termination as to Mother.
The Department petitioned the Texas Supreme Court, challenging the court of appeals’ legal-sufficiency ruling on endangerment.
The Supreme Court reversed the court of appeals on the endangerment issue and remanded for consideration of:
- Factual sufficiency of the endangerment finding; and
- Legal and factual sufficiency of the “best interest” determination.

II. Summary of the Opinion

The Supreme Court held that:

The court of appeals misapplied the standard for “endangerment” and for legal sufficiency by effectively requiring a direct causal link between Father’s criminal conduct and a specific harm to the child.
Consistent with In re R.R.A. and earlier cases, “endangerment” under § 161.001(b)(1)(E) does not require that the parent’s conduct directly harm the child or be directed at the child, nor that the child actually suffer injury.
Instead, a “pattern of parental behavior that presents a substantial risk of harm” to the child can suffice to establish endangerment.
Father’s extensive, escalating criminal history, repeated incarcerations spanning the entirety of the child’s life, absence from the child’s upbringing, and minimal efforts to maintain a relationship or monitor the child’s welfare constituted legally sufficient evidence from which a reasonable factfinder could form a firm belief or conviction that Father engaged in endangering conduct.

The Court emphasized:

“Mere imprisonment” alone does not automatically constitute endangering conduct—but criminal behavior leading to recurrent incarceration, combined with abandonment and instability, can support an endangerment finding.
The father’s claimed lack of knowledge about the mother’s neglect did not negate endangerment; that ignorance stemmed from his own criminal conduct and lack of involvement.
The Supreme Court’s jurisdiction does not extend to factual-sufficiency review, so those issues must be addressed by the court of appeals on remand.

Accordingly, the judgment of the court of appeals was reversed in part (as to Father), and the case was remanded for further proceedings on factual sufficiency and best interest.

III. Doctrinal Background and Precedents

A. Statutory Framework

Termination of parental rights in Texas is governed principally by Texas Family Code § 161.001(b), which requires proof, by clear and convincing evidence, of:

At least one statutory “ground” for termination; and
That termination is in the child’s best interest.

The relevant subsections include:

§ 161.001(b)(1)(E) – Ground at issue here. It authorizes termination if the parent has:
“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.”
§ 161.001(b)(1)(P) – Addressed in In re R.R.A. It provides a separate ground when a parent has used a controlled substance “in a manner that endangered the health or safety of the child.”
§ 101.007 – Defines “clear and convincing evidence” as:
“the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”

B. Key Precedents Relied Upon

1. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987)

Boyd is the foundational Texas case construing “endanger” in § 161.001(b)(1)(E). The Court held:

“Endanger” means “to expose to loss or injury; to jeopardize.”
It is “not necessary that the [parent’s] conduct be directed at the child or that the child actually suffers injury.”
However, “mere imprisonment will not, standing alone, constitute engaging in conduct which endangers” a child’s physical or emotional well-being.

Boyd thus established two important constraints:

Endangerment focuses on risk and exposure, not actual harm.
But incarceration alone is not per se endangerment; the inquiry remains fact-specific and contextual.

2. In re J.F.-G., 627 S.W.3d 304 (Tex. 2021)

In J.F.-G., the Court addressed a father with an extensive criminal history and repeated incarcerations. The Court held that the father’s:

“multiple criminal episodes of escalating seriousness” (e.g., drug offenses, robbery),
lengthy incarceration that kept him absent for more than eight of the child’s eleven years,
failure to monitor or inquire into the child’s safety while incarcerated, and
minimal efforts to contact or be involved in the child’s health, education, or welfare,

together provided legally sufficient evidence of endangerment under § 161.001(b)(1)(E).

J.F.-G. is particularly significant here because it:

Explicitly recognizes that criminal history plus resulting absence and indifference can amount to endangerment;
Emphasizes the relevance of “escalating seriousness” of crimes and “duration and consequences” of incarceration;
Rejects the idea that a parent’s claimed ignorance of the child’s precarious situation defeats endangerment when the ignorance itself stems from the parent’s own criminal choices.

3. In re R.R.A., 687 S.W.3d 269 (Tex. 2024)

R.R.A. interpreted the term “endanger” in § 161.001(b)(1)(P) (drug-use endangerment). The Court held that:

“Endangerment does not require a parent's drug use to directly harm the child.”
“A pattern of parental behavior that presents a substantial risk of harm to the child permits a factfinder to reasonably find endangerment.”
When the Legislature uses substantially the same language within the same statutory scheme, those words ordinarily carry the same meaning; thus, the meaning of “endanger” in one subsection informs others.

In N.L.S., the Court imports this reasoning from § 161.001(b)(1)(P) back into (E), essentially harmonizing the concept of “endangerment” across termination grounds.

4. Walker v. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)

Walker is a court of appeals decision the Supreme Court cites for two propositions:

“Abusive and violent criminal conduct by a parent can produce an environment that endangers the well-being of a child.”
“[C]onduct that routinely subjects a child to the probability that the child will be left alone because a parent is jailed endangers both the physical and emotional well-being of the child.”

The Supreme Court uses Walker to reinforce the notion that:

It is not incarceration alone, but the pattern and consequences of criminal conduct, that matter; and
Repeated incarcerations that generate instability and abandonment can themselves constitute endangering conduct.

5. In re J.F.C., 96 S.W.3d 256 (Tex. 2002)

J.F.C. sets the standard for reviewing legal sufficiency under the clear-and-convincing evidence requirement. The reviewing court must:

View the evidence in the light most favorable to the finding;
Indulge reasonable inferences in favor of the finding; and
Reverse only if “no reasonable factfinder could form a firm belief or conviction” that the finding is true.

N.L.S. explicitly invokes this standard to emphasize appellate deference to the trial court’s role as factfinder in termination cases.

6. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003)

Although not a family law case, Golden Eagle is cited to reiterate a jurisdictional limit:

The Texas Supreme Court does not have jurisdiction to conduct a factual-sufficiency review in civil cases; that role lies with the intermediate courts of appeals.

This procedural principle explains why the Supreme Court in N.L.S. confines itself to legal sufficiency and remands factual-sufficiency issues to the First Court of Appeals.

IV. The Court’s Legal Reasoning

A. Clarifying “Endangerment” Under § 161.001(b)(1)(E)

The opinion’s central doctrinal move is to explicitly align the meaning of “endanger” in § 161.001(b)(1)(E) with the interpretation articulated in R.R.A. under § 161.001(b)(1)(P).

The Court reasons as follows:

The Legislature used essentially the same term—“endanger”—in multiple termination grounds within § 161.001(b)(1).
Under ordinary principles of statutory construction, a word used repeatedly in the same statutory scheme is presumed to have the same meaning unless the context clearly indicates otherwise.
In R.R.A., the Court held that endangerment “does not require [the parent's conduct] to directly harm the child” and that a “pattern of parental behavior” presenting a “substantial risk of harm” suffices.
Because § 161.001(b)(1)(E) and (P) share the term “endanger” and address closely related subject matter (parental conduct risking harm to children), the meaning of “endanger” is carried over from (P) to (E).

The Court thus “confirms” that for subsection (E), as for (P):

“Endangerment . . . does not require [the parent's conduct] to directly harm the child. The proper inquiry is thus whether there is evidence that Father exhibited a pattern of behavior presenting a substantial risk of harm to [the child].”

This expressly rejects any notion that a direct causal chain from specific criminal acts to specific physical or emotional harm must be proven for (E).

B. Applying the Endangerment Standard to the Facts

1. Father’s Criminal History and Incarceration

The Court places heavy emphasis on Father’s criminal record and its temporal relationship to the child’s life:

Since 2008, Father has been convicted twelve times, including at least five felonies.
Convictions include:
- Two family-violence convictions;
- Two drug-possession convictions (including methamphetamine);
- Burglary, theft of a firearm, felon in possession of a firearm, possession of a prohibited weapon;
- Evading arrest and credit card abuse.
His most recent conviction (2021) involved five counts—including drug and weapons offenses and assault of a family member—with a five-year sentence.
Father was incarcerated when the child was born and, according to the trial court’s oral findings, was either under felony indictment or in prison for the entire duration of the child’s life.

The Court analogizes this pattern to the father in J.F.-G., highlighting:

The “escalating seriousness” of Father’s offenses;
The persistence of criminal behavior after the child’s birth;
The resulting long-term absence from the child’s life.

This combination is held to support a finding of endangerment because:

“Lengthy incarceration presents a risk of endangerment to the child's well-being,” particularly when it results from a pattern of criminal conduct and causes prolonged absence and instability.

2. Father’s Relationship (or Lack Thereof) with the Child

The Court underscores that Father:

Had limited in-person contact with the child—living with him for only two months in 2018 and last seeing him in 2019 when the child was three years old;
Did not provide financial support;
Did not know basic facts about the child (school grade, favorite color, favorite food, etc.);
Admitted he could not currently provide a safe and stable home.

The guardian ad litem testified that:

The child had no emotional connection with Father.
The child believed that another man (E.J.C.’s father) was his father.
The uncertainty and instability associated with Father’s repeated incarcerations placed the child in a “state of flux,” not knowing whether a caregiver would be “going to jail one day or the next.”

The Court cites this as additional evidence of endangerment—particularly emotional endangerment— stemming from instability, inconsistency, and abandonment rather than from direct physical harm.

3. Conflicting Evidence About Mother’s Parenting and Father’s Knowledge

The court of appeals had focused on Father’s testimony that:

He believed Mother was an attentive parent and kept a clean home when they lived together;
He did not know of her drug use or prior Department involvement;
He thus did not “knowingly” place the child in an endangering environment.

The Supreme Court responds in two ways:

Credibility and Conflicting Testimony. A caseworker testified that Father had previously told her Mother was not a good mother and was rarely home, leaving him to take care of the child when they were together. Father denied making these statements. The Court emphasizes that resolving such conflicts is the trial court’s role as factfinder. Under the legal sufficiency standard, the reviewing court must defer to reasonable credibility determinations.
Ignorance Stemming from Criminal Conduct. Even accepting Father’s claimed lack of knowledge, the Court—relying on J.F.-G.—notes that his ignorance resulted from his own criminal conduct and prolonged incarceration. Just as in J.F.-G., a parent cannot insulate himself from an endangerment finding by pointing to ignorance that is itself a foreseeable consequence of his choices to engage in criminal behavior and remain uninvolved.

The Court thus rejects the court of appeals’ reasoning that Father’s purported lack of knowledge about Mother’s neglect foreclosed an endangerment finding.

C. Rejecting the Court of Appeals’ “Causal Link” Requirement

The First Court of Appeals had framed the problem as the Department’s failure to establish:

“a causal link between [F]ather’s criminal conduct and any alleged endangerment to [the child].”

The Supreme Court finds this formulation inconsistent with:

Boyd (endangerment does not require conduct directed at the child or actual injury);
J.F.-G. (criminal history plus absence and minimal involvement can be enough); and
R.R.A. (endangerment does not require direct harm; a pattern of behavior posing a substantial risk suffices).

In effect, the court of appeals imposed too strict a causation requirement—one that required more than proof of a substantial risk of harm arising from a pattern of conduct. The Supreme Court clarifies that the statutory term “endangers” is inherently risk-focused and does not require the kind of “but-for” or direct-cause nexus the court of appeals appeared to demand.

D. Standard of Review and Deference to the Trial Court

The Court reiterates, following J.F.C. and R.R.A., that in legal-sufficiency review under the clear-and-convincing standard:

The evidence must be viewed in the light most favorable to the challenged finding;
The reviewing court presumes that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so;
The judgment should be reversed only if no reasonable factfinder could form a firm belief or conviction that the disputed fact is true.

Applying that standard, the Court holds that a reasonable factfinder could, based on the record:

Regard Father’s extensive criminal record and repeated incarcerations as an endangering pattern of behavior;
Infer that Father’s absence and minimal involvement created substantial risk to the child’s physical and emotional well-being through instability and abandonment;
Credit the caseworker’s testimony over Father’s contrary statements regarding his knowledge of Mother’s parenting.

Accordingly, legal sufficiency is satisfied, and it was error for the court of appeals to render judgment for Father on that ground.

E. Best Interest and the Limits of the Supreme Court’s Jurisdiction

In a footnote, the Court addresses the Department’s request that it go further and resolve the legal sufficiency of the best-interest finding (and affirm termination outright). The Court declines, citing two reasons:

The Department’s petition for review did not properly present best-interest sufficiency as a separate issue, as required by Texas Rule of Appellate Procedure 53.2(f).
Even if it did decide legal sufficiency on best interest, the Court would still need to remand for factual-sufficiency review, which is beyond its jurisdiction (Golden Eagle).

This underscores:

The Court’s adherence to procedural rules that require issues to be properly framed in the petition.
The institutional division of labor between the Supreme Court and the courts of appeals in Texas regarding factual sufficiency.

V. Simplifying the Key Legal Concepts

A. “Endangerment” vs. Actual Harm

In everyday language, to “endanger” someone is to put them in danger, even if they are never actually harmed. The Court’s use of that concept in parental-rights cases has three central elements:

Risk-focused: The statute is concerned with exposing the child to a substantial risk of harm, not just proven injury.
Indirect conduct: The parent’s conduct does not have to be aimed at the child (e.g., drug dealing, violent crimes, or serial incarcerations can qualify).
Pattern and context: A single incident may not be enough; a pattern of behavior that creates instability, absence, or danger over time can be sufficient.

B. “Mere Imprisonment” vs. Criminal Pattern

The law draws an important line:

Mere imprisonment alone is not automatic endangerment. A one-time, short-term incarceration, without more, does not automatically justify termination.
But a pattern of criminal conduct—especially serious or violent crimes, often escalating in severity—that repeatedly places the parent in prison and out of the child’s life can constitute endangering conduct.

The key idea is that repeated incarceration often:

Leaves the child without stable caregiving;
Creates emotional uncertainty and anxiety;
Signals that the parent prioritizes criminal behavior over parental responsibilities.

C. Clear and Convincing Evidence

“Clear and convincing” is a higher burden of proof than “preponderance of the evidence” (more likely than not), but lower than “beyond a reasonable doubt” (used in criminal cases).

It requires evidence that would cause the judge (or jury) to form a “firm belief or conviction” about the truth of the allegations. In termination cases, both:

The statutory ground (e.g., endangerment), and
That termination is in the child’s best interest

must be proven to this heightened standard.

D. Legal Sufficiency vs. Factual Sufficiency

These are appellate review standards:

Legal sufficiency: Asks whether any reasonable factfinder could have formed a firm belief or conviction based on the evidence when viewed in the light most favorable to the finding. If no reasonable factfinder could have done so, the evidence is legally insufficient.
Factual sufficiency: Takes a more balanced view of the whole record and asks whether, given all the evidence, a finding is so against the great weight and preponderance of the evidence as to be clearly wrong or unjust, even though some evidence might support it.

In Texas, the Supreme Court may review legal sufficiency but not factual sufficiency in civil cases, which is why N.L.S. is remanded for the latter.

E. “Per Curiam” and Dissent

A per curiam opinion is issued “by the Court” as an institution, without a named author. In this case, the opinion is per curiam but is accompanied by a written dissent by the Chief Justice and two other justices, indicating that the case was not unanimous and that the issues were sufficiently close or significant to warrant disagreement.

VI. Impact and Implications

A. Doctrinal Significance: Harmonizing “Endangerment” Across Subsections

The most consequential doctrinal move in N.L.S. is the explicit alignment of “endangerment” under § 161.001(b)(1)(E) with the interpretation adopted for § 161.001(b)(1)(P) in R.R.A.:

Endangerment does not require direct harm to the child.
A pattern of parental behavior sufficing to create a substantial risk of harm is enough.

This clarification:

Reduces room for intermediate courts of appeals to demand a tight “causal link” between a parent’s specific criminal acts and specific harm to the child;
Encourages a holistic assessment of parental conduct over time, focusing on risk, instability, and abandonment rather than incidents of direct abuse alone;
Consolidates the interpretive framework for “endangerment” across the Family Code’s multiple termination grounds.

B. Strengthening the Role of Criminal History and Incarceration in Endangerment Cases

N.L.S. reinforces and extends the logic of J.F.-G. by:

Confirming that an extensive, escalating criminal history can support an endangerment finding, especially when:
- The crimes involve violence, drugs, or weapons;
- They lead to extended periods of incarceration;
- The incarceration spans large portions of the child’s life.
Emphasizing that the consequences of criminal conduct—persistent absence, failure to develop a relationship, inability to provide a stable home—are highly relevant to endangerment.
Validating reliance on testimony indicating the child’s lack of emotional bond and confusion about parental identity as evidence of emotional endangerment.

For practitioners, this means that:

Departments and guardians ad litem can more confidently frame detailed criminal histories, patterns of incarceration, and lack of parental involvement as endangering conduct even without evidence that the child witnessed crimes or was physically harmed.
Parents’ counsel must focus strongly on demonstrating rehabilitation, consistent contact, efforts to maintain emotional and financial support, and mitigating the inference that criminal history reflects current or ongoing risk.

C. Limiting the “Ignorance” Defense

The opinion also significantly limits the use of “I didn’t know” as a defense to endangerment. Following J.F.-G., the Court explains that:

A parent cannot avoid responsibility by claiming ignorance of the child’s living conditions where that ignorance is the predictable result of the parent’s own criminal conduct and prolonged incarceration.
A parent’s duty includes affirmatively monitoring the child’s safety and well-being; prolonged indifference or failure to inquire can itself be considered endangering conduct.

As a result, appellate courts are less likely to credit arguments that the parent did not “knowingly” place the child in danger if the parent’s ignorance arises from voluntary withdrawal from the child’s life.

D. Institutional and Procedural Implications

Procedurally, the case highlights:

The importance of properly framing issues for review in petitions to the Supreme Court; failure to raise best-interest sufficiency separately prevented plenary review of that issue here.
The clear division between legal and factual sufficiency:
- The Supreme Court may correct erroneous applications of legal standards, such as the court of appeals’ overly strict causation requirement;
- But factual re-weighing of the evidence remains within the exclusive domain of the intermediate courts of appeals.

On remand, the First Court of Appeals retains power to:

Affirm termination by finding the evidence factually sufficient on both endangerment and best interest; or
Reverse on factual-sufficiency grounds if it concludes the evidence, though legally sufficient, does not produce a firm conviction when all the evidence is weighed neutrally.

E. Practical Consequences for Future Cases

In future Texas termination cases:

Evidence building: The Department will likely place even greater emphasis on documenting:
- Chronologies of criminal histories;
- Durations of incarceration;
- Gaps in contact or support;
- Emotional and developmental impacts on the child.
Defense strategies: Parents facing termination based partly on criminal history will need to:
- Show sustained rehabilitation efforts (education, treatment, parenting courses);
- Document attempts to contact or support the child;
- Present credible plans for future stability post-release.
Appellate review: Courts of appeals will be constrained from requiring proof of a tight causal chain between specific criminal acts and harm; rather, they must evaluate the broader risk landscape created by a parent’s conduct.

VII. Conclusion

In the Interest of N.L.S. and E.J.C. is a significant addition to Texas’s parental termination jurisprudence, clarifying and consolidating the meaning of “endangerment” under Texas Family Code § 161.001(b)(1)(E). Building on Boyd, J.F.-G., and R.R.A., the Court makes clear that:

Endangerment is about substantial risk, not necessarily direct harm or actual injury;
A sustained pattern of serious criminal conduct and resulting incarceration, coupled with indifference to the child’s welfare and a lack of involvement, can constitute endangering conduct;
A parent’s ignorance of the child’s living conditions cannot excuse endangerment when that ignorance is itself caused by the parent’s voluntary choices to engage in criminal behavior and withdraw from the child’s life;
Courts of appeals must adhere to the deferential legal-sufficiency standard and may not impose a heightened causation requirement inconsistent with the statutory and precedential understanding of “endanger.”

At the same time, the opinion respects procedural and institutional boundaries: it leaves factual sufficiency and best-interest determinations to the court of appeals, demonstrating the Supreme Court’s limited but pivotal role in shaping the governing legal standards. In practical terms, the decision will likely strengthen the Department’s ability to obtain and defend terminations based on chronic criminal conduct and incarceration, while challenging parents and their counsel to present more robust evidence of rehabilitation, involvement, and future stability.

Ultimately, N.L.S. confirms that parental rights, though fundamental, are conditioned on conduct that does not expose children to unacceptable risks of physical or emotional harm. In the Court’s view, a pattern of serious criminality and disengagement can cross that threshold—even in the absence of direct, demonstrable injury to the child.