## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00257

- CV

___________________________

On Appeal from the 467th District Court Denton County, Texas Trial Court No. 19

- 7974

- 367 Before Womack, Wallach, and Walker, JJ. Memorandu m Opinion by Justi ce Wallach 

### I N THE 

### I NTEREST OF 

### J.G., T.G. , K.G., AND 

### L.G., M INOR 

### C HILDREN2 ME MORANDUM OPINION Appellant J.G. ( Fath er) a ppeals the trial court ’ s termination of hi s parental rights to his four children , J.G ., T.G ., K.G ., and L.G. 1 In nine issues, he challenges the adjudication of his parentage, the tri a l court ’ s dismiss al of his case f rom the jury docket, and the seven termi n ation grounds found by the trial court. Because we hold that the trial court impliedly adjudicated Father as the children ’ s father and had sufficient evidence to do so; that Father w as not h armed by the denial of a jury trial ; and that sufficient evi dence supports termination, we affirm

. BACKGROUND In August 2019, the Texas Department of Family and Protect ive Services ( Department) filed an original p etition for the protection of a ch i ld , for conservatorship, and f or termination in a su i t affecti ng the parent

– child rela tionship with respect to Father ’ s daughte rs, J .G., T.G., K. G., and L. G. The children were 9, 8, 4, and 3 years old, respectively. In the petition, Father w as named as the alleged father

. The Department stated that the c hildre n h ad b een taken into the Department ’ s

care , and it asked to be named temporary sole managing conservator. The Department requested the trial court to determine wheth e r Father was the children ’ s fa ther; it spe ci fically requested that genetic testi n g be ordered if Father denied parentage but t hat testing be waived if Father admitted parentage

. It requeste d that

1 We use initials to refer to the ch ild re n and the ir family members

. See Tex. Fam. Code An n. § 109.002(d); Tex. R. App. P. 9.8(b)(2).3 Father ’ s rights be terminated if (1) the chi ldren ’ s reunific ation with Father coul d not be achie ved or (2) he had not registered wit h the pat ernity registr y and , after being served , he failed to fil e an admission of paternity or cou nterclaim for pa tern ity

. The Department attached to its petiti o n an aff idavit from the Depart ment ’ s
casewor ker who had investi gated the case initially

. The investigator stated that in July 2019, t he Department received a report of p hy sical n eglec t and neglectful supervision involving the children. The report “ expressed con cerns abou t four childre n living in a hotel room in Denton wh ere various men were going in and out of the hotel r oom and there w [ ere ] concerns about drugs and p ros titu tion. ” The children ’ s mother ( Mother ) initially avoided the i n ve stigat or ’ s attempts to meet w ith her and th e children , but the investigator was eve ntually able to locate her and the children at a community soup k itchen

. The investigator noted that although the chil dren appeared slightly disheveled , they seem e d he a lth y and well

- fed

. Mother agreed to a drug test ; her test was posit iv e for coca ine , and, according to other documents later filed with the trial court , all four children also test ed positive for cocaine

. The trial court s i gned

a n order for protection na ming the Depar tment as temporary sole managing

co ns erv ator and appointed a C ASA a dvocate fo r the children

. The Departme nt ’ s October 2019 status report to the court stated that the Department ’ s primary goal was fa m ily reun i fication

. A February 13, 2020 permanency report to the cour t not ed that Father had been served only recently, in January. It further stated that the Department had done a home study on Father ’ s mother, which4 ruled her out as a po s sible pl aceme nt. T he report noted that Father had bee n ass igned a courtesy ca seworker and, although he had not started on his se rvices

— and a CASA repor t stated that he had not yet received a serv ice plan

— he had begun attending visits with the chi l dren in Decem ber 2019

. According to the CASA repor t, Fathe r reported living with various family members in W ichita Falls. On February 19, 2020, the trial court held an initial permanenc y hearing , and each parent appeared in person w ith thei r re spective court

- appointed attorney . The tri al court then signed its initial permanency order , which stated that Father had not demonstrated adequate and appropri ate complian ce with hi s service plan but was workin g on establ i sh ing se rvices. The court inco rporated and adop ted the parents ’ service plan s as a court order and admonished the parents of the importance of following the plan. Father sig ned the order. An April 2020 per manency r eport to th e c ourt r eiterated that the primary perm an en cy goal was f amily reunification. By this time, a different caseworker had been assigned to work on the case. The caseworker ’ s report noted that Mother had not completed most of her s ervices a nd ha d refu sed requested drug tes ting in O ctober, Nove mber, and December 2019, and that she had been arrested in March and was currently in the Denton County jail. T he repo rt stated that Father had be en court ordered to part icipate in a d rug and alc o hol as se ssment , random d r ug testing, parent ing cla sses, and we ekl y child visitations

. He had had negative drug test results in December and March, and his April resul ts were pending. He had not yet started his5 parenting clas ses and wa s alterna ting between living with h is mother and with his girlfriend

. H e had been ordered to maintain employment but was currently unemployed. In May 2020, the Department filed a “ Child ’ s Plan of S ervice ” for each child and a fami ly service pla n 2 for each parent . The chil dren ’ s se rvi ce plans noted that Fath er had weekly visits and that as of tha t point, Father had attended all scheduled visits and was act ively involved in the case. Father ’ s family plan ev alua tion noted tha t h e had te sted positive for cocaine , still did not have a stab le living en v ironment, and did not have a stable job. Th e plan stated that Father needed to complete a drug and

a lcohol assessment and was requ ired to attend AA or NA m ee tings weekly u nt i l his dr ug and a lcohol assessment was completed , that he needed to su b mit to random drug testing, and that his failu re to comply with testing would be viewed as a positive result

. It further noted that Father had stated that he ha d used marijua na since he was 20 years old , that th e last time he was sober was two yea rs prior when he was still with Mother and their children, and that he smoke d marijuana only when he was bored or with friends

. A CASA report filed around the sa me time noted t h at Fathe r was the children ’ s biolog ical fat her, had tested positive for cocaine in Apri l, worked part

- time

as a mover , and was regular ly attending visitations.

2 T he document was entitled “Family Plan Evaluation, ” but a t trial t he Departm ent identified it as the service plan, and it contained the requir ed conten ts of a ser vice pla n . See Tex. Fam . Code Ann. § 263.1 02.6 In May 2020, the trial cou rt signed a permanency hearing order that in corporated Fat h e r ’ s serv ice plan and made it an ord er of the court

. The co urt also signed a temporary order follo wing an advers ary hearing

. That order required Father
to comply with the D epartments service plans, have suitable employment for at le ast si x m onths d uring th e suit ’ s pendency , establis h appropriate housing, attend AA or NA meetings five times a week , comp lete drug and alcohol assessment and testing as directed by the Department, attend counseling s essions, complete a psychosocial

ev alua tion, complete a parenti ng class, have weekly super vised visits , and pay monthly ch ild support of $100

. Up to that p oint, Father had been participating in the case and his services . However , after May 2020 , Department and CASA r eports indicat e d that Fa ther had all but ceased par ticipating or communicating with the Department , and the trial court ’ s orders all indicated that Fa ther was not making sufficient progress with his services

. I n the Department ’ s August 20 20 permanency rep ort , in which t h e perman ency goal for the children had bee n updated to u nrelated adoption or relative conservatorship rather than family reunification , the Department not ed that Father had not performed his services and t hat he had not visited the children since May;

“ He was conf irming hi s visits with the chil dren and then c ancelling at t he last minute or not showing up. ” The trial court held another per mane ncy hearing on September 2, 2020. Father did no t attend the hearing, but his attorney d i d. The c ourt then sign ed a permanency7 hearing order stating that F ather had not demonstrated adequate and appropriate

com pl iance with the service plan and that Fath er needed to comply with his visitation pl an . In December 20 20, the Departme nt filed another perman ency report with the court, noting ag ain tha t Father had not worked his services or showed for his visitations and that he had not been in contact with the D epartment. A CASA advocate report also noted that Fat h er had n ot attend ed visitation since May 11, 202 0, and that since th at time he ha d stopped contacting CPS and had not asked to s ee his daughters. The trial court ’ s permanency hearing order again found t hat Father had not demonstrated adequate com p liance w ith his s ervice plan. In Janua ry 2021, the case wa s trans ferred from the 367th District Court to the 467th District Court. In March 2021, the Department filed a permanency report stating t hat Father had not been in contact with t he Depar tment and had not worke d his services. An April 202 1 C ASA advocate report stated that Fath er had attended a virtual visit in January 2021 but had not shown up for scheduled visits in March and April

. T hat same month, the t rial co u rt held a permane ncy hearing, w hich Father ’ s
att orney attend ed but , again, Father d id not. The trial court ’ s permanency hearing order found that Father had not demonstrated adequate compliance with his service plan

. In July 2021, Mother and the D ep artmen t signed a med iated settlement agreemen t in which M other agreed to sign an affida vit of voluntary relinquishment for8 her children. In the same mo nth, the trial court signed another permanency heari ng order , again finding that Fat h er had n ot demons tra ted complia nce with the service plan

. 3 The trial cour t tried the case in August 2021 . Father ’ s attorney appeared, but he did not. Although Father had not made a jury trial demand, Moth er had done so prior to executin g her rel inquishme nt affidavit

. On the d ay of the trial, o ver Father ’ s objection, th e trial court granted the Department ’ s motion to remove the case from the jury docket and found that Father had waived his jury demand by no t appearing and participating in the proc eedin g . Th e Dep artment present ed testimony from the Department ’ s caseworker, the in itial investig at ing caseworker, and the CASA advocate . Father did not present a ny witnesses or introduc e any other evid ence. At the conclusion of trial , the tri al court terminated Fat her ’ s parental right s. The trial court the n signed a final order of termination in which the trial court found by clear and convincing evidence that the parent

– child rel ationship between Father and the children sho u l d be te rminate d , that Father had committed the grou nds in Te xas Family Code Section 161.001( b )( 1)(A), (B), (D), (E), (F), ( N), and ( O) , and that termin ation was in each child ’ s best interest.

3 I n the section of t he ord er in dicat ing whether Father appeared for the h eari ng, the trial court checked a box stat ing that Father “agreed to the terms of this order as evidenced by s ignature below. ” However, Father did not personally sign the order, and his attorney signed the order as to f orm only.9 The Department was a ppointed as permanent man a ging c on servator. Father now appeals. STANDARD OF REVIEW For a trial court to ter minate a parent

– child relationship , the Department must prove two elements b y clear and convincing evidence: 1) that the parent ’ s actions

sa tisfy one ground listed i n Famil y Code Section 161 .001(b)(1); and 2) that terminati on is in the child ’ s best inte res t. Tex. Fam. Code Ann. § 161.001(b); I n re E.N.C. , 384 S.W.3d 796, 803 (Tex. 2012); In re J.L. , 163 S.W.3d 79, 84 (Tex. 2005)

. Evidence is c lear and convincing if it “ will pr oduce in the min d of the trier of fact a firm bel ief or conviction as to the tr uth of the allegations sought to be estab lished. ” Tex. Fam. Code Ann. § 101.007 ; E.N.C. , 384 S.W.3d at 802

. To determine whether the evidence is legally sufficient in p arenta l

- termination

case s, we look at all the evidence in the light most favorable to th e challenged finding to determine whether a reasonable factfinder could form a firm belief or conviction tha t the finding is true. In re J.P.B

. , 180 S.W.3d 570, 573 (T e x. 200 5)

. We assume that the factfinder settled any evide ntiary conflicts in favor of it s finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved, an d we consider undisput ed e videnc e even if it i s

co ntrary to the finding. Id. That i s, we consider evidence favorab le to the finding if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See i d.10 In ev a luating the evidence ’ s f a ctual su fficiency to sup port termination , w e must perform “ an exacting review of the ent ir e record

. ” In re A.B. , 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we giv e due deference to the factfinder ’ s finding s and do not supplant t he judgment with our ow n . In r e H.R.M. , 209 S.W. 3d 105, 108 (Tex. 2006). We revie w the whole record to decide wh et her a factfinder could reasonably form a firm conviction or belief t hat the Department proved the termination gr ounds. Tex. Fam. Code Ann. § 161.001(b); I n re C.H. , 8 9 S.W. 3d 17, 28 (Tex . 20 02). If the factfinder reasonably could form such a firm convict io n or belief, then the evidence is fact ually sufficient. C.H. , 89 S.W.3d at 1 8

– 19. DISCUSSION I . Evidence Supports Parentage Adjudication Father di d not contest his parental statu s in the trial cou rt, but i n h is first issue on app eal , Father argues that he has no t been established as the children ’ s parent because he did not sign a paternity acknowledgement, was never married to Mother and was thus not a p resumed fath e r, had n ot be en pre viously adjudi cate d as their father, and did not ad opt the c hildren, a nd that the e v ide nce was insufficient to adjudicate him as the father in this proceeding

. We disagree ; the trial court imp liedly adjudicated Father as the chil dren ’ s father, and the evidence supports that adjudication

. A lthough the termination or der di d no t expressl y ad dress the issue, t he order implie dly adjudicated Father as the chi ldren ’ s father because it referred to him as the11 “ Respondent Father ” a nd termi nated hi s parental rights under Texas Family Cod e Section 1 61. 001, and termination under that sect ion requir es t he existence of a parent

– child re lationship

. See In re M. H. v. Tex . Dep ’ t of F am. & Protective Servs. , No. 03

- 19

- 00525

- CV, 2020 WL 8913 9 , at *3 (Tex. App.

— Austin Jan. 8, 2020, no pet.) (mem. op.)

. Father asserts that there was no parentage ad judication because the t rial court ’ s permanency order s before trial referred to Father as the “ Respondent Alleged Father

. ” 4 Father refer s to t he ord er s ’ identific ation of the part ies and their attorn eys. Not withstanding that language in the pretrial orders , at trial the trial court nevertheless could and , as shown in the termination judgment, impliedly did adjudicate F ather as the children ’ s f ather

. As for the evidence to support the adjudication, “ [i] n suit s to termina te parental rights, pater nity may be s hown by evidence admitted at trial, judicial admissions, and pleadings and other documents in t he c o urt ’ s fi le of which the court may take judicial notice. ” Id. (citing cases)

. As in M.H

. , t he record here i ndicates tha t through out the proceedi ngs below , Fa ther “ did not deny paternity and instead act ed in a manner that was consistent with him being t he f a ther of the child[ren]. ” Id. In M.H. , the court of appeals concluded that the followin g beha vior by the fa ther was beh avior consistent with his being the fa ther: The Department ’ s origi nal petition for protection of the child requested that if the fath er a p peared a t the initial show

- cause hearing and denied pate rnity, then the district court shoul d order geneti c testing. T he record

4 Vari o us ot her orders in the rec ord ref er to Fath er a s “Respondent Father. ”12 reflects that t he father app eared in person at the initi al show

- cause hearing and announced ready. No genetic testing was o rder e d follow ing the hearing, which supports a finding that t he father di d not deny paterni ty at that time. The father also appeared in person at su bsequent hear ings and announced ready. No thing in the temporary orders following those hearings indicates th at t h e father denied paternity at those hearings. Moreover, f ollowing the initial permanenc y hear ing, the fathe r filed an a ffidavit of indigence and requested co urt

- appointed counsel, which supports a finding that the father wanted to contest the terminati on o f his par ental rights. Id. Si milarly, here, the Department ’ s petition s ought genetic te sti ng and terminatio n if Father denied paternity

. Father appeared at t he initial permanency hearin g , and although we have no record of that hearing, 5 no genetic test ing w as order ed following that hearing, and the trial court did not termi nate Father ’ s righ ts bas ed on a denial of paternit y. 6 Father ’ s attorney app eared at the permanency hearings, and not hing in the orders following those hearings indicate d that Father ’ s att o rney had denied Father ’ s paternity at the hearings

. Father filed no subsequent pleading s or m otions contest ing paternity, and Fa ther filed an af fidavit of indigenc y to obtain an att orney to cont est termination

. Also similar to M. H. , Father ’ s attorney iden t ified hi mself at trial as

5 The record a lso contains no a nswer filed by F a ther or any other pleadi ng or motion denying the Dep artment ’s allegat ions

. 6 Father argues under this issue th a t we must re ve r se the t rial court ’s judgment and render judgment for him denying termination because “ [w] ithout [Father ’s] being a parent, his ‘ parental rights ’ cannot be terminated, for he h as non e. ” Howe ver, an alleged father ’s parental rig h ts may be te rm i nated if , “ after being served with citation, he does not respond by timely filing an admission of paternit y or a counterclaim for paternity

. . . . ” Tex. Fam. Code Ann. § 161.002 (b). Accordi ngly, a fa ilur e to ack nowledge paternity does not p r ev ent a fath er ’ s parent al rights to a child from being terminated, a nd the Department pled for the trial court to terminate Fath er ’s rights if he denied pa ternity

.13 attorney for “ Respondent Father , ” and he objected to the waiv er of a jury trial a nd contested the term ination througho ut the trial

. Further, p rior to trial, Father filed a motion for continuance and ex t ension o f dismissal date referring to himself as the

“ Respondent Father ” rathe r than as the a lleged father and ass erting that he was working his services

. Additionally, t h e children ha d Father ’ s last name, and at trial the ca seworker testified t h at Mothe r provided Father ’ s name as the children ’ s biol ogical father , that she never al leged anyone else to be the children ’ s fa ther , and that F a ther never denied pa ternity to her. The investiga tor also testified that Mother provided Father ’ s name as the children ’ s biological father ; alt hough Father asserts that the investigato r said that Mother n ever identified anyon e as the childre n ’ s father, the testimony to which he cites is the investigator ’ s testimony that initially Mother refused to pr o vide a n ame . Further, Father initiall y attended all of his visitation app ointme nts an d partic ipated in his ser vices by agreeing to a drug test and attending a parenting class, indicating that, at first , Fathe r wanted to be reunited with his c hildren because he was, in fact, their f

ather

. See id. We hold that the evidence is legally and factually sufficient to suppo rt the tr ial court ’ s adju di cation of paternity

. We overrule Father ’ s f irst issue. II . Harmless J ury Trial Denial In Father ’ s seco n d issue, he argues that he was wrongfully denied a jury trial. We assume for p urpo ses of the appeal that Father was entitled to have the ca se

rem ain on the jur y docket. Like mo st judicial errors, the wron gful denial of a j ury trial14 is subject to harmless e rror rev iew

. See Tex. R. App. P. 33.1 ; H a lsell v. Deh oyos , 810 S.W.2d 371, 372 (Tex. 1991). Father makes no harm arguments in his brief , bu t

“ [a] refusal to gr ant a jury trial is harmless error on ly if the record shows tha t no material is sues of fact exis t and an instructed verdict would have been justified. ” H a lsell , 810 S.W.2d at 372

. Accordingly, w e look to see if the record reveals materi al fac t issues that would prevent an instructed verdict 7 on any of the ter minatio n g rou nds. 8

7 T he re appears to b e a split among courts of appeals of how to apply this standard. For exa mple, the San A ntonio C ourt of Appeals held that ha rmful error existed in a terminati on case , not necessaril y becau se of the reco rd, but because in a termination case , t he Department m ust prove a statutory termination ground and best interest, and , thus “ numerous materi a l fac t i ssues exist in a parental termination c ase . . . . ” In re L.J.G. , No. 04

- 17

- 00526

- CV, 2018 WL 340129, a t *5 (Tex. A pp.
— San Antonio Jan. 10, 2018 , n o pet.) (mem. o p .)

. The Tyler Court of Appeals , on the other hand, ha s analyzed the record to determi n e if any conflicting evidence actually existed to create a fact issue on the termination grounds

. In re J.M. , No. 12

- 19

- 00353

- CV, 2020 WL 1528054, at *11 (Te x. App.

— Tyle r Ma r. 31, 2020, no pet.) (m em. op.) ; se e also In re K. S. , No. 06

- 21

- 00062

- CV, 2021 WL 4848750, at *4 (Tex. App.

— Texarkana Oct. 19, 2021, no pet. ) (mem. op .) (holding jury trial de nial wa s harmful in t ermination case b ecause of conflictin g e vidence rega rdi ng best interest) ; In re Jetall Co s . , Inc. , No. 14

- 20

- 00690

- CV, 2021 WL 1420950, at *5 (Tex. App.

— Houston [14th Dist.] Apr. 15, 2021 , orig. proceeding) ( holding j ury trial denial h armful when trial cou rt had determined fact issue existed) ; L . C. v. Tex. De p ’ t of Fam

. & Protective Serv s. , No. 03

- 20

- 00481

- CV, 2021 WL 1148959, at *6 (Tex. A p p.
— Austi n Mar. 26, 2021, pet. denied) (mem. op.) (holding denial harmful where the record de mons trated material f act issues regarding best interest and te rmi nation groun ds)

. This court has previously applied the same approac h as the Tyle r court and consid e r ed whe t her the record contain ed con flicting evidence. See In re P.L.G.M. , No. 02

- 13

- 00181

- C V, 2 013 WL 5967037, a t *5 (Tex. App.

— Fort Worth N ov. 7, 2013, no pet.) (per c uri am) (mem. op.). We therefore follow that approach here

. 8 Fat her does not challenge t he tria l court ’ s best

- interest finding , and we therefore do no t consider the evidence as to that findin g .15 As we discuss below, t h e Depart ment ’ s evidence was sufficient to e stablish termination under ground (E)

. N one of its evidence r aised a fact issue on that ground , and Fat her pr esented no evi dence at all

. Father was therefore no t harmed by the jury trial denial, and w e overrule F a t her ’ s s econd issue. Howev er, we note that “ the record and facts in this case present a r a re situation where harm has not been shown and the holdi ng in t his case shou ld be limited as such. ” J.M. , 2020 WL 1528054, at *11

. II I . Sufficient Termination Grou n d Eviden ce I n his remaini ng issues

— issues three through nine

— F a ther challenges the legal and factual su fficiency of the evidence on each termination ground

. Becau se F at her pro duced n o evidence of his own , we review only the eviden c e prese nted during the Department ’ s ca s e to det ermi ne suffic iency

. A . The Department ’ s Eviden ce At trial, t he court admitted into evi dence the May 13, 2020 temporary order in which Fath e r was ordered to sub mit to a ps ychosocial evaluation and to follow any

recom mendations made from the asses s men t; to participate i n counseling ; to complete a parent ing class; to participate in a drug and alcoho l assessment and submit
to drug test ing as dir e cted b y the Departme nt; to attend AA or NA meetings and p rovide p ro of of his attendance to his caseworker; to infor m the court if he used any illegal substances du ring the suit ’ s pendency ; to establish safe , s table , and appropriate housing and s uitable em p l oymen t ; and to comp ly with his service plan.16 The t rial court also admitted the Depar tment ’ s “ F amily Pl an Evaluation ” from July 2020 , which included the service plan and the Departmen t ’ s notes abou t Fathe r ’ s performance

. Th at document state d that Father had tested positive for cocaine and

a dmitted to regular marijuana use and that the las t time he was sober was over two years prior ; that Father needed to attend AA or NA meetings , participa te in a drug and alcohol assessment, and submit to ra ndom d rug test s ; and that failure to comply with hi s dr ug tests would be viewed as a positiv e drug t e st. The p lan further stated that Father did not have a stable living envir onment and alte rnat ed between living with hi s mothe r and his g irlf ri end ; that Fath er had not had a stable job for a yea r; that Father had made little effort to contact h is d augh ters after he and Mother broke up; and that he needed to be more active in the case

. Caseworker D enise Dull testified a bou t Father ’ s c om pliance with h is service plan

. Father had attended one parenting class and had taken one d r ug test in May 2020 , w hi c h was positive for marijuana and cocaine. He ha d not submitted to drug
test ing since that time, and he admitte d to a not her casewor ker that he still s mokes marijuana. F urther, F ather ha d not c ompleted his dr u g and a l cohol assessment or , to her knowledge, pa rticipated i n AA or NA

. He had not paid an y ch il d or medical

s uppor t . He had no t particip ated in a psychosocial evaluation or in individual

cou nseling

. Sinc e May 2020 , he had participated in only one five

- minute visi t with his

c hildren. The caseworke r stat ed that betwee n the children and Father, “ there is no relationship. They don ’ t know who he is. He is not an active particip ant in the case. ”17 S h e furthe r testifie d, “ There ’ s still al l eged drug use by him, and he doesn ’ t have the financial means that I have seen to be able to take c a re of these c hildren or a stable home e nvironment for them. ” A s for providing employment documen tation , Father had f inally p rovided the caseworker with two paystubs in January 2021 but had gi ve n her nothing since that time. He h ad not provided any do c umentation , such as a lease contra ct, to show that he had stable housing. The Department ’ s inve stig a tor test ified and admitted that she never met Father. Her te stimo ny focused mostly on the children ’ s environment with Mother. She al so acknowledged that when she met the children, they looked “ healthy, care d for, [and] fed. ” But sh e al s o said t hat based on Mother ’ s drug test results and her refusal to do futur e tests , she had concerns about the children ’ s safety , and she beli eved that the environment in which th e children lived with Mother had led t hem to have exposure to illegal su bsta n ces . She also testified that Moth er acted belligerent and aggr essively toward the investigator and that throu gh out her investigat ion, she noticed that the children we re exposed to Mother ’ s “ d ramatic mood swings

. ” She believed that the env iron m ent with Mother was not safe. On cross

- examination, the inves tigator acknowledged that Mother app eared to be attem pt ing to keep the children from Father . However, sh e f urther testified that Mother had tol d her that Father was not safe

. S he was not aware of any attempts made by Father to “ come and secure hi s children from the Department. ” Fath er18 int ro duced no evi dence that before the children were t aken into care, he had made any effort to locate them or spend time with the m . The CASA advocate t estified as well. Asked about h is contact with Father, he repl ied, “ It ’ s been sporadic, but th ere were sever al times over the course of the case. Now it ’ s almost two year s. ” He s aid that Father had failed to sho w up for “ many ” visits with the children , missing more visits tha n he made

. The a dvocate had been i n
contact with F ather ’ s servic e providers, and other than the paren ting class provider,

no ne of the providers had notified him that Father h ad c ompleted his service s. To the advocate ’ s knowledge , Father had no t paid medical or child support or se nt any gif ts
to the children

. Except for one time in the previous year, Father had not reached out to him to ask how the children wer e do ing , even thou gh Father had his phone number and email address

. Additionally, w e presume that t he trial c ourt t ook judicial n o tice of its own records, “ including its orders and incorpor ated f indings , ” and our scope of review under both ou r legal a nd factua l sufficiency analysis is the entirety of the record evide nce. In re M.W. , No. 02

- 21

- 00146

- CV, 2021 WL 36 79247, at *4 (Tex. A pp.
— Fort Worth Aug. 19, 2021, pet. de nied) (mem. op.)

. The trial court ’ s previous pre liminary hearing orders fou n d that F ather had not been ad equately performing hi s services.19 B . End angerment under Subsection (E ) T he tria l cou r t granted the termination in part on the grounds li sted in Subsections (D) and (E ) of Section 161.001 (b)(1)

. If a trial cour t ’ s termina tion is based

on (D) or (E) , an appella te court m ust review those g rounds when raised on appeal

— even if other groun ds wou ld support ter mination

— because a termination on e it her of those grounds has coll ateral consequences for the par ent ’ s relations h ip with other children the paren t may have in th e future

. In re R.H. , No. 02

- 20

- 00396

- CV, 2021 WL 2006038, at *13 (Tex. App

. — Fort Worth May 20, 2021, no pet.) (mem. op.)

. According ly, we begin with those grounds

. Father ’ s si xth issue chal lenges the (E) gr o und. Tha t ground permits te rmina tion when the parent “ engaged in conduct or knowingly placed the child wit h persons who eng aged i n conduct whic h endan g ers the physical or emotional well

- being of the child , ” when termination is in the child ’ s best interest

. Tex. F am. Code Ann. § 161 .001 ( b)(1) (E)

. “ Endanger ” in this context means “ to expose to loss or injury, t o jeopa rdize. ” In re M. B. , No. 02

- 15

- 00128

- CV , 2015 WL 4380868, at *12 (Te x. App.

— Fort Worth July 16, 2015, no pet.) (mem. op.) (citing Tex. Dep ’ t of Human Se rv s. v. Boyd , 727 S .W.2d 531, 533 (Tex. 1987) a nd In re J.T.G. , 121 S.W.3d 117, 125 (Tex. App.

— For t Worth 2003, no pet.) )

. The relev an t inquiry un der (E) is “ whether evide nce exists that the

en dangerment of the child ’ s physical well

- being was the direct r esult of the par ent ’ s

con duct, including acts, omissions, or failures to act. ” M.B. , 2015 WL 4380868, at * 12

.20 T ermi nation under Su b sect ion (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of co n duct by the pa rent is required. J .T. G. , 121 S.W.3d at 125

. However, t he parent ’ s conduct need not be directed at the child or act ually ca use th e child injury ; “ [t] he specific dange r to the child ’ s well

- being may be inferre d from parental misconduct standi n g alone. ” M.B. , 2015 WL 4380868, at * 12

. Courts may consider a parent ’ s conduct that occu rred outside the child ’ s presence or a ft er the child ’ s removal by the Depar tment. 9 In re M. S. , No. 02

- 20

- 00147

- CV, 2020 WL 6066400, at *4 (Tex. App.

— Fort Worth O ct. 1 5 , 2020, no pet.) (mem. op.); In r e R.S. , No. 02

- 15

- 00137

- CV, 2015 WL 5770530, at *6 (Tex. App.

— Fort Worth Oct. 1, 2015, no pet. ) (mem. op.). “ A s a general rule,

con duct that subjec ts a child to a life of uncertainty and ins tability endangers the chil d ’ s p h ysical a nd emotional well

- being. ” M.B. , 2015 WL 4380868, at *12

. A trial court may consid e r a parent ’ s failure to complete a se rv ice plan as pa rt of it s endangering

- conduct analysi s . Id. (ci ting In re R.F. , 115 S.W.3d 804, 811 (Tex. App.

— Dallas 2003, no p e t.) )

. Fu rther, “ illegal drug use after a child ’ s removal or during the pendency of a term i nation proceeding is conduct that jeo pa rdizes parenta l

9 To the extent that Father complains about the lack of ev idence regarding endang e rment b y him before the children were taken into the Department ’s care, we note tha t “ t he r e cord is spa rse with r espe ct to Father [during that time] becau se his complete lac k of contact with the children and lack of involvement with their lives leaves lit t le to r e cord. ” See In re B.D.A. , 546 S.W.3d 346, 363 (Tex. App.

— Houston [1s t Dist.] 2018, p e t. d enied)

. Lack of c onta ct with a child can constitute endang erm ent. V.P. v. Tex . Dep ’ t of Fam

. & Protective Serv s . , No. 03

- 19

- 00531

- CV, 20 20 WL 544797, at *4 (Te x . App.

— A ust in Feb. 4, 2020, no pet.) (mem. op.).21 rights and may be c onsidered as est ablishing an endangering course of conduct under subsection (E)

. ” In r e C.V

. L. , 591 S.W.3d 734, 751 (Tex. App

. — Dallas 2019, pet. denied)

. Although an endangerment fi nding based on drug use alone is n ot a ut omatic , id. , “ [a] parent ’ s decision to engage in il legal dr u g use du ring the pendency of a
te rmination suit, when the parent is at risk of losing a c hild, supports a finding that the pare nt engaged in co nduct that endangered the child ’ s phy sical or emotional well

being. ” In re J.A.G. , No. 02

- 10

- 00002

- CV, 2 010 WL 4 5 39442, a t *1 ( Tex. App.

— Fort Wort h Nov. 10, 2010 , no pet.) (mem. op.) (quoting In re J.W. , No. 02

- 08

- 00211

- CV, 2009 WL 8068 65, at *4 ( Tex. App.

— Fort Worth Mar. 26, 2009 , no pet.) ( mem. op.))

. Further, a trial court may consider in its analysis a parent ’ s f ailure t o visit, which can endang er the child ’ s emotional well

- being

. In re M.K. , No. 02

- 19

- 00459

- CV, 2020 WL 1949629, at * 6 (Tex . App.

— Fort Wo rth Apr. 23, 2020, no p et.) (mem. op. ) ; M.B. , 2015 WL 4380868, at *12

. Father tested positive for illegal drugs in his A pril 2020 drug tes t , and h e declined to take another test despite being ordered to do so

. A s n oted above, his failure to test authori zed t he trial court to presume that if he had tested, the results would have been positive. See J.W. , 200 9 WL 8068 6 5, at *4

. Father failed to co m plet e most of the services in hi s service plan, and between May 2020 and the August 1 6, 2 021 tri al , he made alm ost n o effort to attend visitations o r che ck on his children ’ s well

- being. The evidence was thus legally and factu a lly suff icient to support an endan germent finding under Sectio n 161.001(b)(1 )(E). See M.K. , 2020 WL 1949629, at22 *6 ; In re D.C. , No. 05

- 19

- 012 17

- CV , 2020 WL 1042692, at *10 (Tex. App.

— Dallas Mar. 4, 2020, pet. denied) (upholding endangerment finding when m o ther adm itt ed she used drugs multi ple times during the termina tion case ’ s pend ency and refused to

su bmit to m on thly drug tests ) ; M.B

. , 2015 W L 438 0868, at *12

. Because we consid er Fa ther ’s failure to complete his services as part of our ground (E ) analys i s, we ad dress here Father ’s argumen ts under his ni nth issue challeng i ng the termination on the (O) ground , which allows termination w hen a parent fa iled to perform the court

- ordered action s tha t were “ necessary for the parent to obtain the return of the c h ild who has been in the permanent o r temporary managing conservatorship o f the Department of Family and Protective Services

. . . . ” See T ex. Fa m. Code A nn. § 161.001(b)(1)(O). Father does n ot di spute that he received the service plan , and Father did not
t e stify or put on any evidence explai ning his failure to perform his servic es. See id

. § 161.001 (d) . However, F ather co ntends that the evid ence i s insu ffi cient to show that he failed to perform al most all of his services because the Depa rtment presente d no
t estimony from service provider repr esentatives about F ather ’ s efforts toward completing his services and produced no records from serv ice provi d ers. Father asserts that the case wor ker testified that she “ can ’ t say ” whether Father complete d his

ser vices and that her testimony that “ to [her] knowledge ” certain services had not been completed was too we a k to justify termination. Father ’ s arguments are unpersuasive.23 The Depar tme nt had to present compete nt evidence that Father d i d not pe rfo rm his services in o rder to establish ground ( O) or to re ly on his fa ilure to complete services as part of the endangerment ground

. See id

. § 161.001( b )( 1)( O)

. However , Father cites no author ity fo r the proposit ion that to do so , the Department

was re qu ired to produce testimony or other evidence directly from th e service providers

. Here, t he CASA advocate testified that he had been in communication with Fathe r ’ s service pr oviders and that Father had not compl ete d his services , and, as w e discuss next, th e casework er testified about matters within her knowledge re garding Father ’ s participation in his services

. A witness may only testif y to mat te rs of which the witness has personal knowledge , se e Tex. R. Evid . 602 , and t he context of the caseworker ’ s testim ony demonstrated that it was based on matte rs that were with in her kno wledge as the

casewo rker

. For exa mple, t he trial court ha d o rdered that Father ’ s week ly visitations with his chil dren be sup ervised by the Department

. Th e caseworker t e stified that since May o f the p revious year , Father had attended only one Depa rtment

- su pervis ed visit with the children. T h e case wo rker ’ s testimony was support ed by the CASA advocate ’ s testimony, who stated that Fa t her part icipated in a virtual vis it in January of the
current ye ar and had failed to show u p for his other visi ts. The cas eworker further te stified that Father had f ailed to submit to drug testing. The trial court ’ s previous order pro v ided tha t the results of those tests “ will be reported to the Dep artment, ” a nd thus F ather ’ s fail ure to test wo uld be within the24 caseworker ’ s knowle dge because the Department w ould have received hi s test results had there bee n any . Father presen t ed no ev idence that he had participate d in drug testing and that the results had somehow no t been commun icated to the Department. Also, some of Fath er ’ s services required him to provide th e information to the Department himself ; for example, the trial cou r t ’ s orde r required Father to provide the cas eworker with proof t hat he had att ended NA or A A . Acc ordingly, t he

ca seworker ’ s testimony that he had ne ve r done so was within her personal knowledge

. Further, we pr esume that the trial court took judi c ial noti ce of its prior permanency hearing orders in which it fo und that Father had not dem onstra ted adequate

c om pliance with his services. As for the caseworke r ’ s testimony that she “ can ’ t say ” about Father ’ s serv ices compliance , that stat e ment was specifically in response to a question of whether she b elieved that after Father ’ s paren ting class

— the o nly service he completed

— he had

“ de mon strated that he learned anything regarding parentin g from that clas s. ” The caseworker answe r ed that she could not say because she had not been able to obser v e Father as a parent , and she th en testified a bout hi s failure to show up for his v isi t s. Based on the testimony of the cas eworkers and the CASA advocat e , the Dep artment ’ s trial e x hibits, and the trial court ’ s k nowledge of its previous orders, the evidence is legally and factu ally sufficien t to show t hat Father f ailed to compl y w ith the services order ed by the trial court. Acc ording ly, the trial court could con side r25 Father ’ s failur e to perf orm his services as evidence supporting the endange rment fin ding under (E). We over rule F ather ’ s sixth issue. Because we have affirmed the s uff icien cy of the evidence to support the (E) groun d, we need not address the (D) ground

. S ee In re E.C. , N o . 02

- 20

- 000 22

- CV , 2020 WL 2071755, at *5 (Tex. App.

— Fort Worth Apr. 30, 2020, no pet.) (mem . op.)

. We therefore do not address Father ’ s fifth issue. CONCLUSION Having overruled Father ’ s first, second , and sixth issues , which are dispositive ,
we affirm t h e trial court ’ s ju dgment.

/s/ Mike Wallach Mike Wa llach Justice Delivered: J anu ary 20, 2022