Opinion issued October 2 1 , 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 21
- 00233
- CV

——————————— IN THE INTEREST OF L. L . - M. C. AKA L.C. , A CHILD
On Appeal from the 313th District Court

Harris County, Texas Trial Court Ca se No. 2020
- 00757J

MEMORANDUM OPINION
In t his appeal, the father challenges the trial court’s final decre e terminating his parental r ights to his minor child, Leah, bas ed on findings that he endang ered h er and that he failed to comply with pro v isions o f a court order specifying the actions2

necessary to obtain her return

. 1 T EX
. F AM
. C ODE § 161.0 01(b)(1) ( D ) , (E), (O). He chal lenges the s u fficiency of the evidence to support t he predic a te act s finding s. We af firm. Background This case concerns Leah, born in 2019, who came into the care of the Department of Family & P rotective Services ( the “ Department ” ) sh ortly after her first birthday. The Department became involved when it received a report alleging neglectful supervision of Leah by her mother and father

. 2 Police offi cers and a canine unit went to the family ’ s house wh ere they found heroin in a diape r box along with needles and broken meth amphetamine pipes. Th e mother opened the door when the authorities arrived, and the father came to the door c arrying L e ah. He was arrested on a fe lony warrant for possession of dru gs. The mother tested positive for methamphetamines and w as lat er arrested for dru g possession and distribution. Leah was removed from her pare nts ’ home and placed with he r paternal great aunt. After

1 T he trial court terminated the parent al rights of both the mother and the father. This appeal concerns only the fath er. We use the fictiti ous name “ Leah ” to r efer to the minor child , L.C., who is the subject of thi s appeal

. See T EX
. R. A PP
. P. 9.8(a)

.
2 These det ails appea r in the “ additional infor mation ” section of the family services plan

. At trial , both parents ’ attorneys objected to this portion of the family services plan based on hear sa y . The Department responded that the nar ra tive was admissible to explain the reasons the Department filed the case a gainst both parents. The trial court responded that the details would not be considered for the truth of the matter asserted. T he t rial court o verruled the parent s ’ further objection s that the details were more prejudicial than probative. They are l isted here to explain the reasons that the Department began investigating the pa rents.3

about two months, Leah was removed from her aunt ’ s home and placed in a foster home

. The Department was appoint ed temp orary managing conservato r of Leah on April 8, 2020. The court en tered an order requir ing both parents to comply with the requireme nts of the Depar tment ’ s family services plan

. T he family services plan was filed the next month

. T he mother ’ s plan was approved by the court in May 2020. After a hearing attended by the father and his coun sel, t he trial court specifically approved the plan for the father on June 18, 20 20. The case proceeded to tr ial on M arch 31 , 2021. The caseworker testified that Leah was in a foster home , and the Department ’ s goal was adoption by a relative or someone unrelated to her. The caseworker testified that Leah was bro ught into care due to neglectful supervision , specifically that the household had “ drugs in it from the mother and the father and they were active drug users and they were using drugs around the child. ” The casework er testified that t he father h ad b een ord ered to complete parenting classes, maintain stable housing and income, cooperate with the Department, and attend hearings, conferences , and visits. He had also been ordered
to participate in a substance abuse assessment, to submit to random drug sc r eening, and to participate in a psychosocial assessment and follow all recommendations from it. According to the caseworker, the father did n ot co mplete any services except4

for participating in court hearings

. He did not take any drug tests

. H e did not ha v e any visits with Leah because he had not submitted to a drug test. The caseworker t estified that each parent had previous cases where their rights to other children had been terminated. T he cases did not involve Leah. The caseworker specified that with respect to the father, his previous termination case involved termination according to subsection s (D), (E), and (O). 3
The caseworker believed that termination was in the best interest of Leah beca use the parents had not engaged in services required by the family services plan

. Leah was initially placed wit h a paternal aunt for about three months

. Then she was removed from the aunt ’ s care and pl aced with a foster family. Leah was doing well
in her foster care placement.
O n cross exa mination, the caseworker stat ed that she had written the father letters whil e he was in jail in Harris County . He never responded, and the caseworker did not receive proof that the father received the certified mail. She also testified that befor e the father w ent to jail, she ref erred him for services in accordance with his family services plan. The father was scheduled for a substance abuse assessment, bu t he did not go to the appointment. The caseworker confirmed that the father submitt ed to a paternity test and att ended so me co urt hearings . He told the Departm ent that he had stable income from unemployment benefits and that he had

3 See T EX
. F AM
. C ODE § 161.001

.5

st able housing, but he did not provide proof of either. H e had not completed any other tasks from the plan. The Department ’ s investigato r testified t hat the case began due to a repor t of neglectful supervision, that there were drugs in the home , and that the mo ther w as manufact uring an d selling methamphet amines . During the investigation, the mother tested posit ive for methamphetamines. She was arrested due to her drug use. The inv estigator spoke with the father by phone. He attempted to interview the father in
person wh ile he wa s in jail, but the father re fused to talk to the investiga tor. T h e investigator clarified that both parents were i ncarcerated a t some point during the investigation, and the mother was released. The investigat ion reve aled that both parents had criminal rec ords , and the ir criminal hist ories were listed in the family services plan. The Court App ointed Special Advocate ( “ CASA ” ) test ified that she had been assigned to the case since April 2020. Since that time, she had FaceTime visits with Leah twice a month. She testified that she had never spoken to the father because he

never returned her phone ca lls. He had sent her t ext messages. The C ASA testified that Leah was plac ed with a foster family that consisted of a mother, father, and two sons. She had observed Leah several times over th e months on Facetime. Leah played with the other children an d interacted happily with
t he foster par ents. The C ASA had no con cerns about Le ah ’ s placement with the6

foster family

. T he CASA explained her concerns about two family me mbers as possible placements for Leah. The foster mother testified that Leah was doin g well in her care. Leah had bonded with the foster parent s ’ biological children and enjoyed playing with them. The foster mother expressed a desire to be Leah ’ s long

- ter m caregiver and adopt her if possible. The trial court entered a final judgment te rminating the parents ’ rights b ased

on endan germent , see T EX
. F AM
. C ODE § 161.001( b)(1)(D), (E), and based on failure
to “ c omply with the provisions of a court order that sp ecifically established the actions necessary . . . to obtain return of [the child]

. ” See id. § 161.001(b)(1)(O). T he court also found that ter mination was in Leah ’ s best interest and appointed the Department as sole managing conservator of Leah. Sufficien cy of the Evidence T he father challenges the lega l and factual s ufficiency of the e vidence to support termination under s ubsect ions (D), (E), and (O ). See T EX
. F AM
. C ODE § 161.001( b)(1)(D), (E), (O ). A. Standard of Revie w A court may order t ermination of th e parent

- child relationship when it finds by clear an d convincing evidence that th e parent has committed one or mo re of the
stat utorily enumerated predicate acts or omissions, and that termination is in the7

child ren ’ s best interests. T EX
. F AM
. C ODE § 161.0 01(b)(1), (2). “ Only one predicate finding ” unde r section 161 .001(b)(1) “ is necess ary to support a judgment of
ter mination when there is also a finding that termina tion is in the child ’ s best interest

. ” In re A.V. , 113 S.W.3d 3 5 5, 36 2 ( T ex. 2003) ; see In r e A .H.L. , No. 01

- 16

- 00784

- CV, 2017 WL 11492 2 2, at *3 (Tex. App.

— Houston [1st Dist. ] Mar. 28, 2017, pet. denied) (m em. op.).
T he interest of parents in the car e, cus tody, and control of their children is a fundamental liberty int erest protected by the Cons titution. S e e , e.g. , Troxel v. Granvill e , 53 0 U.S . 57, 65 (2000); Santosky v. Kram e r , 455 U.S. 745, 758

– 59 (1982). But the right s of natural parents are not absolute

. A.V. , 113 S.W.3d at 361

. Protection of the child is paramount, and when the Stat e institu tes proceedings to terminate parental rights, the courts focus on protecting the be st interests of the child.
See id.

“ A strong presumption exists that a child ’ s be st interests are served by maintaining the parent

- child relation ship. ” Walker v. T e x. Dep ’ t of Family &
Protective Servs. , 312 S.W.3d 608, 6 18 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied). We strictly scrutinize te rmination proceedi ngs on appeal becau se “ the evidence i n s upport of termination must be clear and con vincing before a c o urt may involuntarily terminate a parent ’ s rights. ” Holic k v. Smith , 685 S.W.2d 18, 20 ( T ex . 1985) (citing Santosky , 455 U

. S . at 747

– 48) ; see In re J.F.C. , 96 S.W.3d 256, 26 3

–8

64 (Tex. 2002). “ ‘ Clear and convinc ing evidence ’ means the mea sure or degree of
p roof tha t will produce in the mind of the trier of fact a firm belief or convi c tion as
to t he truth of the allegations sou ght to be esta blish ed. ” T EX
. F AM
. C ODE § 101.007. In conductin g a legal sufficiency review, we view “ the evidence in the light
most f avorable to the finding, ” which means that we “ must assum e t hat the factfinder resolved dis puted facts in favor of its fin ding if a reas onable f actfinder could do so. ”
J.F.C

. , 96 S.W.3d at 266. A revi ewing court may not disregard undispu ted facts that do n ot suppo rt the finding, but it “ should disregard all evid ence that a reasonable factfinder could hav e disbelieved or found to hav e been incredible. ” Id. Evidence is legally sufficient when it enables a factfinder to “ reasonably form a fi rm belief or convi c tion abo ut the truth of the matter on which the State bea rs the burden of proof. ” Id. ; see T EX
. F AM
. C ODE § 101.007.
In a factual suf

fi ciency review, the reviewing court ag ain determines “ whether the evidence is such that a factfinder c ould reasonab l y form a firm belief or conviction about the truth of the Stat e ’ s allegations. ” J.F.C. , 96 S.W.3 d at 26 6 . But rather than disre garding disput ed evidence t hat the factfind er coul d have disbelieved, we consider whether “ a reasonable factfinde r could not h ave resolved tha t disputed evidence in favor of its finding. ” I d. “ I f, in light of the entire r ec ord, the disputed evidence that a reasonable fa ctfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonabl y ha ve formed a firm belief or9

conviction, then the evidence is factually insuffic ient

. ” Id. ; see In re A.R.R. , N o. 01

- 18

- 00043

- CV , 2018 WL 3233 334, at *3

– 4 (Tex. App.

— Houston [1s t Dist.] July 3, 2018, pet. denied) (mem. op.). The factfinder i s the sole ar biter when asses sing the credibility and demeanor of witnesses. In re H.R.M. , 209 S.W.3d 105, 109 (Tex. 2006).
B. A nalysis 1. Predicate Finding

— Su bsec tion 161.001 (b)(1) ( O) Th ere was l egally and factually suffic ient evidence to support the trial court ’ s finding that the f

ather failed to “ c omply with the provisions of a court order that specifically es tablished the actions necessary for the parent to obta in the return of [the child]

. ” S ee T EX
. F AM
. C ODE § 161. 001 ( b)(1)(O). A n individual ’ s parental rights may be terminated u nder su bsect ion (O) if (1) the Department has been the child ’ s temporary managing cons ervator for at least nine m onths , (2) the Departm ent
to ok custody of the child as a resul t of an emergency removal for child abuse or neglect, (3) a court issued an order establ ishing the actions neces sary for the parent to obtain the return of the child, a nd (4) the parent di d not comply with the court order

. Id. ; In re S.M. R. , 434 S.W.3d 576 , 582 (Tex. 2014).
T he family services plan required the father to complete spec i fic tasks, including main taining stable and safe housing and employment and p roviding proof to the Department ; p articipating in a psyc ho social evaluation and f ollowing all10

r ecommendations ; participating in a substance

- abuse assessment and following all

r e commendations including random drug testing ; participating in a parenting cl ass in

- person ; c ontact ing the Depart ment monthly ; attend ing court hearings and permanency hearings; a nd attend ing visits with Leah. The caseworker testified that while the father submit ted to a paternity test and attended some court hearings, he did not comple t e most of the ta sks in the cou rt

ordered service plan

. She testified that the father mentioned that he had stable housing and in come through unemployment benefits, but he di d not p rovide pr oof
to the D epartment

. Before the father became inc arcerat ed, t he caseworker arranged for a subst ance abuse assessment , and the father did not s how up for the appointment

. The cas eworker testified that she had contacted the father by certi fied mail while he was in the Harris C ounty j ai l . The caseworker never received proof that he had re cei v ed the letters

. The Department ’ s investigator testified that he had spoken wi th the father by phone and attempted t o speak with him in jail . The father refused to speak to the inv estigat or when the investigator visited the jail. On appeal, t he father ar g ues that there is insufficient e vidence to prove that he received and w as aware of the f amily services plan . The record does not support hi s contentions. The father was served w it h a citation and copy of the Department ’ s suit on March 16, 2020. He answ ere d , requesting affirmative relief , in June 2020 . On the same day, he appeared with his attorney at a special statu s hearing with regard to hi s11

family service plan. Th e trial court ’ s order notes his presence and states that the father “ has not re viewe d an d does understand the service plan

. ” (emphasis in original). The order states t hat father “ will be meeting with the [D] epartment on June 11, 2020 to review th e family plan of service. ” The father argues that there is no evid e nce that the meeting about th e service plan took place. He suggest s that becau se the caseworker did no t testify regarding wh ether the father received the family service plan o r wh ether someone from the Department went over the plan with him, the evidence is insufficient to support the predicate a ct. The father did not, h owever, put on any evidence to su pport the assertion that the meeting did not take place. He did not testify , and he appeared a t trial only through his attorney. T h e record suppor ts a finding th at the f a ther k new abou t the family services plan and understo od the conse quences of failing to complete its requirement s . T h e record also supports a f inding that the fathe r did not complete the tasks required by the plan. To the extent the father a r gues the statutor y defense to termi nation under subsection (O), the evidence doe s not preponderate in favor of the application of the statutory defense. The Texas Family Code es tablishes a single affirmativ e defense
to termination for failure to comply with a court o rder

. A court m ay n ot order termination based on subsect ion (O) if a parent proves by a preponderance of the evidence that the parent was unable to comply with specif ic provisions of the court12

or d er and the par ent mad e a good faith effort to comply and the failu re to com ply is not attributable to any fault of t he parent. T E X
. F AM
. C ODE § 161.001(d). The father has not established the applicability of this defense. At t rial, he did not put on e vide nce that he was unable to comply with the specific provisions of th e
court o rder , that he made a good faith effort to comply with the order, and that his failure to comply with it is not attributable to his fault. We conclude that the evidence is lega lly and factually sufficient to support the trial court’s finding that the fathe r fa iled to comply with court

- ordered ser vices
to obta in the return of his child

. See T EX
. F AM
. C ODE § 16 1.001(b)(1)(O). Accordingly, we overrule the f ather’s challenge to the tria l c ourt ’ s subsection ( O ) finding. Due process requires that when a parent has r a ised the issu e of insufficiency of t he evidence t o support the jury ’ s findings under sub section (D) or (E), an appellate court must address those endangerment findings to ensure a meaningful appeal due to the collateral consequences of a find i ng under tho s e subsections. In re
N.G. , 577 S.W.3 d 230, 237 (Tex. 2019) . Due

- process and due

- course - of

- law requir ements also mandate that an appellate court de tail its analysis for an appeal of termination o f parental rights under subsections (D) or (E). Id. We therefore review the trial c ourt ’ s endanger ment find ings under those sections. See T EX
. F AM
. C ODE § 161.001(b)(1) (D ), (E)

.13

2. P r edicate Finding

— Subsecti ons 161.001( b ) (1 ) (D) & (E) The evidence was also legally and factually sufficient to support the t rial
court ’ s e ndangerment findings under s ub sectio n (D) and (E)

. S e ction
161.001 (b) (1)(D) provides tha t a court may order termination of the parent

- child rel a tionship if it finds by clear and convincing evidence that the parent has

“ knowingly placed or kno wingly allowed th e child to re main in conditions o r surrounding s which endanger the physical or emotional well

- being of the child. ”
T EX
. F AM
. C ODE § 161. 001( b)(1)(D). Section 161.001 (b) (1)(E) provides that a court may order termination of the parent

- child relationship if it finds by clear and convincing e vidence that the parent has “ engaged in conduct or knowingl y placed the child with persons who engaged in c onduct which endangers the physical or emotional well

- being of the child. ” Id. § 161.001(b)(1)(E). The word “ enda nger ” as u sed in s ection 161.001 “ m eans more than a threat of metaphysical injury or the possi ble ill effects of a less

- than

- ideal family

env i ronment

. ” Tex. Dep ’ t of Human Servs. v . Boyd , 727 S.W.2d 531, 533 ( T ex. 1987). In this context, end anger means to e xpos e to loss or i njury or to jeop ardize. Id. ; see Jordan v. Dossey , 325 S.W.3d 700, 723 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied) (e ndangerment includes jeopardizing a child ’ s emotional or physical health); accord In r e A.J.H. , No. 01

- 18

- 00245

- CV, 2019 W L 1900 50, a t

* 7

– 8 (Tex. App

. — Houston [1st Di st.] Jan. 15 , 2019, no pet.) (mem. op.).14

E ndangerment under subsection (D) arises from a child ’ s environment and a parent’s disregard for th e potential for danger created by the environmen t. A.J.H. , 2019 WL 190050, at *7; Jordan , 325 S.W. 3d at 721. Althou gh “ the focus of subsection (D ) is on the c hild ’ s living environment and not on t he pare nt ’ s conduct, parental conduct may prod uce an endangering environment. ” In re M.T.W. , No. 01

- 11

- 00162

- CV, 2011 WL 693 8542, at *12 (Tex. App.

— Houston [1 st Dist.] Dec. 29 , 20 11, no pet.) (mem. op.) (citing Jordan , 325 S.W.3d at 721). Inappropriate , abusive,

or unlawful conduct by a parent or other persons who live in the c hild ’ s ho me can create an environm e nt that endange rs the physical an d emotional well

- being of a child as required for termination under subsecti on ( D )

. See In re S.R

. , 452 S.W.3d 351, 360 (Tex . App.

— Houston [14th Dist.] 2014, pet. denied). Endangerment under subsection (E) arises when a pa rent ’ s course of conduct jeopard i zes the child ’ s e motional or phy sical health. See A.J.H. , 2019 WL 190050,

a t *8. This course of conduct includes acts, omiss ions, and failure s to act, but it

“ must be based on more than a single act or omission

— the e viden ce must demonstrat e a voluntary, d eliberate, and con scious course o f con duct by the parent. ”
M.T.W. , 2011 W L 6 938542, at *12 ( citing Jordan , 325 S.W.3d at 723)

. (1) T he evidence was legally and factua lly suff icient to support the trial court ’ s endangerment finding under subsection (D). On appeal , t he fa ther c ontests several of the court ’ s evidentiary decisions. He contends that the only eviden ce supporting the trial court’s f inding under su bsection15

( D ) w as th e remova l allegations themselves

. He argues that the removal allegations

are “ conclusory stat ements off ering nothing more than speculation of harm. ” He
argues that the trial court erred in admitting judgments from cr iminal convi ctions naming the fa ther bec ause there is insufficient informati on on the do cuments to prove that the father is the person named in them

. He a rgues that the casewo rker ’ s testimony that the f

ather had a prior parental termination based o n subsection (D), (E ), and ( O) was erron eously a dmitted hearsay. Finally, he contends that the court admitted erroneous hearsay evi dence when the Depar tment ’ s investigator testified that “it was reported that there w as [sic] drugs in the home. Mom was manufactur ing and selling meth. ” The father first objected based on hearsay a nd then , after the investigator responded , objected tha t his response was nonr esponsive . The court overruled both objections. The f ather ’ s evidentiary arguments are unper suasive. Reversal based on admissibility of evidenc e is not warr an t ed unless the father shows the error amounted to such a denial o f his rights as was reasonably c alculated to cause and probably did cause the rendition of an improper judgment. See State v. Cent

. Expressway Sign
Assocs. , 302 S.W.3d 866, 870 ( T ex. 2009 ); I n re M.T .R

. , 579 S.W.3d 548, 5 69 (Tex. App.

— Houston [14th Dist. ] 2019, pet. denied). “ To put it a nother way, a successful challenge to evidentiary rulings usuall y requires the complaining party to show that the judgment turns on the particul ar evidence exc luded or admitted. ” Texas Dep ’ t of16

Transp. v . Able , 35 S.W.3d 6 08, 617 (Tex. 2000). In making thi s determination, the
court must review the entire record. M .T.R. , 579 S.W.3d at 569. The er roneous exclusion or admission of evidence is likely harmless if the evidenc e was cumulative, or the rest of the evidence was so on e - sided that the error likely mad e no difference in the judgment. Id. The evidence that the father complains about on appea l was admitted elsewhere in the record without objection. When eviden ce identical or similar to the objected

- to evidence is admitted elsewhere without object ion, ther e is no harm. In
re R.H.W. , 5 42 S.W.3d 724, 740 (Tex. App

. — Houston [14th Dist.] 2018, no pet.). Further, the tr i a l co urt is the sole arbi ter when assessing the credibility and demeanor of a wit ness. H.R.M. , 209 S.W.3d at 109

. As to the father ’ s evidentiar y complaint regarding the investigator ’ s testimo ny, the caseworker testified without objection to the same or similar informat ion about t he father ’ s drug us e and the presence of drugs in the home

. The investigator testifie d that both parents were incarcera ted durin g the investigation into the neglectf

ul supervision allegation. During the in vestigation , the mother was released. The inv estigator attempted t o meet wi th the father during his inc arceration, but the father re fused to speak w ith him. Without obje ct ion, the caseworker testified that Leah was removed from the house bec ause the mot her and the father were “ active drug users and were us ing17

drugs around the c h ild. ” She added that the household “ had drugs in it from the mother and father

. ” She testified that the father had not taken any drug tests du ring the pe ndency of th e ca se an d because drug testing was a prerequisite to visits, he had not had any visits wit h Leah. The father also complains that the criminal judgments admitted int o evidence

were erron eously admitted because there is insufficient identifying inform ation to show that he is the person named in the judgments. The jud gment s were not the only evide nce of the father ’ s crimin al history. The criminal convictions were admitted without objectio n as part of the family services plan. His cri minal history include d four convictions for theft of property betwee n 2005 and 2014 , an d a recent arrest for possessi on of a controlled substance that l e d to incarceration at the time of the trial. As to the fat her ’ s prior parental terminat ion case, t here was clear a n d convincing evidence t o support t he trial co urt ’ s finding on this predicate act without considering the caseworker ’ s testimony regarding the father ’ s prior te rmination. The ju dgment did not turn on this particular evidence. Abl e , 35 S.W.3d at 617. In reviewing the record, we con clude that any error in the admission of these pieces of evidence was harmle ss and there was factually and legally sufficient evidence to support the trial court ’ s fi nding un der subsection (D). we overru le the father’s challenge to the tria l c ourt ’ s subsection ( D ) f inding.18

(2) The evidence was legally and fact ually sufficient to suppo rt the findi ng of endangerment under subsection (E). W ith regard to subsection (E) the father arg ues that the finding wa s

“ undoubtedly based primarily

— if not exclusively

— on [the father ’ s] alleg ed criminal history

. ” He contends that the Department fail ed to prove that he was the
person named in the judgments of conviction admitted into evidence

. As e xplained above, t he judgments of conviction were no t the sole s ource in the record of the father ’ s cri minal history. T he f ather ’s criminal history and substa nce abuse proble m w ere detailed in the family services plan

. Both the caseworker and the D epartment ’ s investigator testified that there were drugs in the house wit h Leah and that both par ents were using and selling dru gs. The inv estigator testified that the fa t he r was incarcerated during his inves tigation. The caseworker testified about concerns that th e father did not participate in the services required by the family services plan

. A parent ’ s efforts to improve or enhance parenting skills are relevant in dete r mining whether a parent ’ s conduct res ults in endangerment under subsection (E). See S.R. , 452 S.W.3d at 362 ( c iting I n re D.T. , 34 S.W.3d 625, 640 (Tex. App.

— Fort Worth 2000, pet. denied)). Failure to maintain stabili ty endanger s the child ’ s physical and e motional well

- being. See In re A.B. , 412 S.W.3d 588, 599 (Tex. App.

— Fort Worth Aug. 2013, pet. denied) ( parent ’ s conduct that subject s child to life of uncertainty and instability endangers child ’ s emotional and physical he alth) . The record demonstrates t hat the father had been convicted of19

possession of drugs and thefts on multiple o ccasions over the course of 10 years. Leah was removed from his ca re due to his use of drugs, and he was inc ar cerated on drug charges while she was in the Department ’ s care . T he father did not submit to any d rug testing despite being ordered to do so, and he did not att end the substanc e abuse assessment set up for him b y the Department prior to his incarceration. The evidence is lega lly and factually sufficient to demonstrate that the fath er endangered Lea h under subsection ( E )

. T EX
. F AM
. C ODE § 161.001( b ) (1)(E). We

ove rrule the fa the r ’ s i ssue related to this predicate act. 4
C onclusion We affirm the judgment of the trial court.

Peter Kelly Justice Panel consists o f Justices Kelly, Hightower, and Farris

.

4 The father does not challenge the tr ial court ’ s fi nding that termination was in Leah ’ s best interest or the trial court ’ s conservat orship findings. See Fort Bend C ty
. Drainage Dist. v. Sbrusch , 818 S.W.2d 392, 395 (Tex. 1991) ( “ Grounds of error not asserted by points of error or argument in the court of app eals are waived

. ” ).