Opinion filed March 9, 2021

In The

Eleventh Court of Appeals __________

No. 11-20-00209-CV

__________

IN THE INTEREST OF J.P., J.S.P., AND A.P., CHILDREN

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 7971-CX

M E M O R A N D U M O P I N I O N

This is an appeal from an order in which the trial court terminated the parental 

rights of the mother and the father of J.P., J.S.P., and A.P. after previously having 

entered an order denying a petition to terminate the parents’ parental rights. Both 

parents filed a notice of appeal. We affirm the order of termination.

Mother’s Appeal

The mother’s court-appointed counsel has filed a brief in which he 

professionally and conscientiously examines the record and applicable law and 

concludes that the appeal is frivolous and without merit. The brief meets the 

requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a 
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professional evaluation of the record demonstrating why there are no arguable 

grounds to be advanced. See In re Schulman, 252 S.W.3d 403, 406–08 (Tex. Crim. 

App. 2008); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). 

Counsel provided the mother with a copy of the brief and an explanatory letter. 

Counsel informed the mother of her right to review the record and file a pro se

response to counsel’s brief. In compliance with Kelly v. State, 436 S.W.3d 313, 318–

20 (Tex. Crim. App. 2014), counsel provided the mother with a copy of the clerk’s 

record and the reporter’s record. Counsel also notified the mother of her right to 

pursue a petition for review in the Texas Supreme Court. We conclude that the 

mother’s counsel has satisfied his duties under Anders, Schulman, and Kelly. We 

note that the mother has not filed a pro se response to counsel’s Anders brief. 

Following the procedures outlined in Anders and Schulman, we have independently 

reviewed the record in this cause, and we agree that the mother’s appeal is without 

merit. 

Although the mother’s court-appointed counsel did not file a motion to 

withdraw in conjunction with the Anders brief, he requests that this court grant him 

leave to file a motion to withdraw. The Texas Supreme Court has held, however, 

that an Anders motion to withdraw “may be premature” if filed in the court of appeals 

under the circumstances presented in this case. See In re P.M., 520 S.W.3d 24, 27 

(Tex. 2016). The court in P.M. stated that “appointed counsel’s obligations can be 

satisfied by filing a petition for review that satisfies the standards for an Anders

brief.” Id. at 27–28. In light of P.M., we deny counsel’s request for leave to file a 

motion to withdraw in this court.

Father’s Appeal

In a single issue on appeal, the father challenges the legal and factual

sufficiency of the evidence to support the trial court’s findings in support of the 

termination of his parental rights. Termination of parental rights must be supported 
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by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 

2020). To determine on appeal if the evidence is legally sufficient in a parental 

termination case, we review all of the evidence in the light most favorable to the 

finding and determine whether a rational trier of fact could have formed a firm belief 

or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 

2005). To determine if the evidence is factually sufficient, we give due deference to 

the finding and determine whether, on the entire record, a factfinder could 

reasonably form a firm belief or conviction about the truth of the allegations against 

the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). To terminate parental 

rights, it must be shown by clear and convincing evidence that the parent has 

committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that 

termination is in the best interest of the child. FAM. § 161.001(b). 

In this case, the trial court found that the father had committed two of the acts

listed in Section 161.001(b)(1)—those found in subsections (E) and (N). 

Specifically, the trial court found that the father had engaged in conduct or 

knowingly placed the children with persons who engaged in conduct that endangered 

the children’s physical or emotional well-being and that the father had constructively 

abandoned the children. The trial court also found, pursuant to 

Section 161.001(b)(2), that termination of the father’s parental rights would be in 

the best interest of the children. The trial court found further, pursuant to 

Section 161.004, that there had been a material and substantial change in the 

circumstances of the children and the parents since the trial court’s denial of a prior 

petition to terminate. See id. § 161.004(a) (West 2014).

Section 161.004(a) provides that, after the rendition of an order that 

previously denied termination of the parent–child relationship, a trial court may 

terminate the parent–child relationship if (1) a subsequent petition seeking to 

terminate parental rights was filed after the date that the order denying the 
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termination was rendered; (2) the circumstances of the child, parent, conservator, or 

other party affected by the order denying termination have materially and 

substantially changed “since the date that the order was rendered”; (3) the parent 

committed an act listed in Section 161.001 “before the date the order denying 

termination was rendered”; and (4) termination of the parent–child relationship is in 

the best interest of the child. Id. § 161.004(a). At a hearing under Section 161.004, 

the trial court may consider evidence presented at a previous hearing on termination. 

Id. § 161.004(b).

When the Department seeks termination after a trial court’s prior denial of 

termination, the Department is not limited to proceeding under Section 161.004. In 

such a situation, the trial court may terminate parental rights (1) under 

Section 161.001, which requires clear and convincing evidence of acts or omissions 

having occurred since the denial, or (2) under Section 161.004, which requires clear 

and convincing evidence of an act or omission under Section 161.001 that occurred 

before the denial and evidence of a material and substantial change since the denial. 

In re A.L.H., 515 S.W.3d 60, 89 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); 

In re K.G., 350 S.W.3d 338, 352 (Tex. App.—Fort Worth 2011, pet. denied). Here, 

the Department sought termination under both sections. 

In his sole issue on appeal, the father challenges the sufficiency of the 

evidence to support the termination of his parental rights under Section 161.004. 

The father does not challenge the sufficiency of the evidence with respect to the trial 

court’s finding that the circumstances of the parents and the children had materially

and substantially changed. See FAM. § 161.004(a)(2). Rather, the father asserts that, 

because the trial court had denied the Department’s prior petition based upon the 

trial court’s finding that the Department had failed to meet its burden of proof in the 

previous trial, the trial court could not later consider—as evidence to support the 

Department’s subsequent request for termination—any conduct committed by the 
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father prior to the date of the previous order denying termination. See id.

§ 161.004(a)(3). Our review of the record reveals that the conduct that would 

support a finding as to the father under Section 161.001(b)(1)(E) occurred prior to 

the trial court’s previous order denying termination. The father asserts that, because 

the trial court could not consider conduct committed by the father prior to the trial 

court’s order denying termination, the evidence was insufficient to support the trial 

court’s findings under Section 161.001(b)(1)(E) and (N). We disagree with the 

premise underlying the father’s contention. 

The father is correct in stating that the trial court denied the Department’s 

previous petition to terminate the father’s parental rights and that, at least with 

respect to J.P. and J.S.P., the basis of that denial was the trial court’s determination 

that the Department had failed to meet its burden of proof. The father is not correct, 

however, in assuming that the trial court found that the Department had failed to 

meet its burden of proof with respect to the father’s conduct: i.e.,

Section 161.001(b)(1). Nothing in the record supports such an assumption. The trial 

court’s denial may well have been based upon the Department’s failure to meet its 

burden of proof with respect to the best interests of the children: i.e., 

Section 161.001(b)(2). 

Moreover, Section 161.004(b) specifically provides that a trial court may 

consider evidence presented at a previous hearing. The language of 

Section 161.004(b) has been interpreted to bar a res judicata complaint about the 

relitigation of issues previously tried in a parental termination case. See K.G., 350 

S.W.3d at 346, 349. Thus, it was proper for the trial court to consider conduct 

committed by the father prior to the trial court’s previous denial of the petition to 

terminate. 

We must next consider whether the evidence was sufficient to support the trial 

court’s finding under Section 161.001(b)(1)(E). See In re N.G., 577 S.W.3d 230, 
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234–35 (Tex. 2019) (addressing due process and due course of law with respect to 

appellate review of grounds (D) and (E) and holding that an appellate court must 

provide a detailed analysis if affirming the termination on either of these grounds). 

Under subsection (E), the relevant inquiry is whether evidence exists that the 

endangerment of the child’s well-being was the direct result of the parent’s conduct, 

including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex. 

App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must 

be based on more than a single act or omission; a voluntary, deliberate, and conscious 

course of conduct by the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex. 

App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex. 

App.—Eastland 1999, no pet.). The offending conduct need not be directed at the 

child, nor does the child actually have to suffer an injury. In re J.O.A., 283 S.W.3d 

336, 345 (Tex. 2009). Drug use may constitute evidence of endangerment. Id. A 

parent’s drug addiction and its effect on the parent’s life and ability to parent a child 

may establish an endangering course of conduct. In re J.T.G., 121 S.W.3d 117, 125–

26 (Tex. App.—Fort Worth 2003, no pet.) (citing Dupree v. Tex. Dep’t of Protective 

& Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ)). 

Further, domestic violence may also constitute evidence of endangerment. C.J.O., 

325 S.W.3d at 265. 

The record shows that J.P., J.S.P., and A.P. had been removed from the care of 

their parents in January 2015. At the time of removal, the Department had received 

two separate intakes involving the family. The intakes related to the use of drugs by 

the parents, the living conditions to which the children were exposed, neglectful 

supervision of the children, physical abuse, and domestic violence. When J.P. and 

J.S.P. were finally located, they were in a motel room with two other children and 

four adults, including adults with an extensive criminal history. The parents were 

not present in the room at that time and had left J.P. and J.S.P. with inappropriate 
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caregivers. The room had been “trashed,” and the motel staff reported that they had 

heard “screaming, yelling, and things of that nature” coming from the room. The 

manager reported having seen the father with bruises and blood on his face multiple 

times. The record reflects that the father has an extensive criminal history, that 

domestic violence occurred in the presence of the children, and that drug use 

occurred in the presence of the children.

The children were removed from the parents, and the Department 

subsequently filed a petition to terminate the parents’ parental rights as to J.P. and 

J.S.P. The Department filed another petition to terminate, with respect to A.P., after 

she was born. The two causes were subsequently consolidated.

Although the father seemed to be concerned about his children and their best 

interest while the proceedings were pending below, he has not seen his children in 

years. Other than a few phone calls early in the case, the father did not call or visit 

the children while this case was pending—not even when he was out of jail—and he 

did not answer his phone when the foster parents called him for the scheduled phone 

visitation that had been ordered by the trial court.

The Department’s goal for the children was termination of the parents’ rights 

and adoption by the foster parents with whom the children had been placed for 

approximately five years. By all accounts, the children had bonded with the foster 

parents, were happy with them, and had a wonderful relationship with them. The 

eldest child, J.P., was adamant that he did not want to be returned to the parents and 

that he wanted to be adopted by the foster parents. The foster mother testified that 

she and her husband intended to adopt all three children if they became available for 

adoption.

Here, based upon evidence of domestic violence committed by the father

against the mother while the children were in their care, the father’s extensive 

criminal history, and the use of drugs in the children’s presence, the trial court could 
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have reasonably found by clear and convincing evidence that the father had engaged 

in a course of conduct that endangered his children or that he had knowingly placed 

the children with persons who engaged in conduct that endangered the children’s 

physical or emotional well-being. Therefore, we hold that the evidence is legally 

and factually sufficient to uphold the trial court’s finding as to the father under 

subsection (E). 

The record contains clear and convincing evidence to support the trial court’s 

findings under Section 161.001(b)(1)(E) and Section 161.004. The evidence was 

uncontroverted that, prior to the previous order denying termination, the father had 

engaged in conduct that endangered his children’s physical or emotional well-being. 

Because only one statutory ground is necessary to support termination and because 

we have upheld the trial court’s finding as to subsection (E), we need not address the 

father’s contention regarding the sufficiency of the evidence under subsection (N). 

See FAM. § 161.001(b)(1); N.G., 577 S.W.3d at 234–35; see also TEX. R.

APP. P. 47.1. Accordingly, we overrule the father’s sole issue. 

This Court’s Ruling

We affirm the trial court’s order of termination. 

W. BRUCE WILLIAMS

JUSTICE

March 9, 2021

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.