Affirmed and Majority and Concurring Opinions filed June 4, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-18-01070-CV

IN THE INTEREST OF P.W., A CHILD 

On Appeal from the 315th District Court 

Harris County, Texas 

Trial Court Cause No. 2017-05035J 

M A J O R I T Y O P I N I O N 

In this accelerated appeal in a termination-of-parental-rights case, we 

consider as an issue of apparent first impression whether a parent may get review 

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

subsections (D) and (E) of Family Code section 161.001(b)(1), even though the 

parent does not challenge either the trial court’s finding under another subsection 

of section 161.001(b)(1) or the trial court’s finding that termination of the parent’s 

parental rights is in the child’s best interest. Based on recent cases from the 

Supreme Court of Texas, we must determine whether the appellant’s challenge to 

the subsection (D) and subsection (E) findings has merit and detail our analysis, 
2

even if another finding that is listed in the final order as a ground for termination 

provides a proper basis for the predicate act required under section 161.001(b)(1) 

and even if the appellant does not challenge the trial court’s best-interest-of-thechild finding. We have the power to grant an appropriate appellate remedy if we 

sustain the appellant’s challenge to the trial court’s findings, and this appellate 

remedy would preclude the Department of Family and Protective Services from 

using the trial court’s termination order as a basis for a subsection (M) finding in a 

future case seeking termination of the appellant’s parental rights as to another 

child. Thus, contrary to the Department’s arguments, the issue of whether the 

evidence suffices to support the trial court’s findings stands ripe for resolution. 

This issue is not moot, and our opinion addressing the issue does not amount to an 

advisory opinion. 

 We conclude that the record contains legally and factually sufficient 

evidence to support the trial court’s finding under subsection (E), so we need not 

address the sufficiency of the evidence to support the trial court’s finding under 

subsection (D). We affirm the trial court’s final order terminating the parent-child 

relationship between the appellant and the child (“Final Order”). 

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant (“Mother”) gave birth to Philip1 in 2017, in Oregon. Mother listed 

John (“Father”) as Philip’s father on the child’s birth certificate. When Father went 

to jail for domestic abuse, Mother and Philip moved to Houston, Texas. 

The Department became involved with the family when Mother and fourmonth-old Philip were admitted to a hospital in Harris County because Mother was 

 

1 We use pseudonyms to refer to the child and the father. See Tex. Fam. Code Ann. § 109.002(d); 

Tex. R. App. P. 9.8.
3

having suicidal ideations and harming herself. Mother blamed these behaviors on 

Father’s threat to leave her. Mother told hospital staff members that she did not 

want to harm Philip. Mother said that she needed help and explained that she could 

not take care of the child. 

Mother told a Department investigator that before she met Father she was 

“doing as many drugs as possible.” Mother confirmed that she had been diagnosed 

with bipolar disorder and major depressive disorder. The domestic-abuse charges 

for which Father had been incarcerated arose out of an incident in which Father 

physically abused Mother when he was intoxicated. In commenting on the abuse, 

Mother reported that Father was under great stress as a result of the couple being 

homeless. 

 Before Mother’s release from the hospital, she agreed to let Casa de 

Esperanza, a children and family services charity, care for Philip until she could 

get her life more settled. Three months later, the Department initiated this suit 

requesting termination of Mother’s parental rights under subsections (C), (D), (E), 

(K), (N), and (O) of section 161.001(b)(1) of the Family Code and asking the trial 

court to name the Department as Philip’s sole managing conservator. In the 

meantime, the trial court named the Department as Philip’s temporary managing 

conservator. At some point, presumably after Father’s release from jail, Mother 

moved back to Oregon to be with Father, without ever having visited Philip. 

 Trial on the Department’s petition seeking termination of the parental rights 

of Mother and Father began fifteen months after Mother left Philip in the care of 

Casa de Esperanza. At trial, the Department’s caseworker, Mitchelle Joseph, 

testified that the Department initiated its investigation when it received allegations 

that Mother had attempted to stab herself in the stomach while she was home with 

Philip. The caseworker testified that she believed it would be in the child’s best 
4

interest to have Mother’s parental rights terminated because Mother had never 

contacted Philip and Mother had failed to provide him with financial support, 

failed to demonstrate the ability to provide him with a stable home, and had not 

addressed Mother’s own mental health and substance-abuse issues. 

The volunteer advocate (sometimes referred to as the “Texas Court 

Appointed Special Advocate” or the “CASA volunteer”2), Samuel Todd, 

recommended termination of Mother’s parental rights because Mother had shown 

no interest in working on her family service plan. According to Todd, Philip was 

thriving in a loving foster home. Todd recommended that Philip remain with his 

foster parents. 

In closing argument, the Department urged the trial court to terminate 

Mother’s parental rights under subsections (N) (constructive abandonment) and 

(O) (failure to complete the court-ordered family service plan) of Family Code 

section 161.001(b)(1). The guardian ad litem agreed with the Department. 

The trial court terminated Mother’s parental rights based on findings that 

Mother had engaged in the conduct described in subsections (D), (E), (N), and (O) 

of Family Code section 161.001(b)(1) and based on the court’s finding that 

terminating Mother’s parental rights would be in Philip’s best interest. The trial 

court terminated Father’s parental rights under Family Code section 161.002 

providing for the termination of the rights of an alleged biological father. 

II. ISSUES AND ANALYSIS

In her appellate brief, Mother concedes the sufficiency of the evidence to 

support the trial court’s findings as to constructive abandonment under subsection 

(N) and that termination of Mother’s parental rights is in Philip’s best interest, but 

 

2

See Tex. Fam. Code Ann. § 107.031 (West, Westlaw through 2017 1st C.S.); In re K.M.L., 443 

S.W.3d 101, 106 n.2 (Tex. 2014). 
5

Mother nonetheless asks this court to review the sufficiency of the evidence to 

support the trial court’s findings under subsections (D) and (E) because of the 

collateral consequences of these findings. Mother relies on a line of cases in which 

this court has concluded that when asked to address findings under subsections (D) 

and (E), this court should do so even if a finding under another subsection supports 

the final termination order because of potential collateral consequences that a 

finding under subsection (D) or (E) might be used to support a finding under 

subsection (M) in a future action to terminate the appellant’s parental rights as to 

another child.3 See In re S.J.N., No. 14-18-00529-CV, 2018 WL 6494256, at *6 

(Tex. App.—Houston [14th Dist.] Dec. 11, 2018, pet. denied) (mem. op.). The 

parties have not cited, and research has not revealed, any case addressing whether 

this review of a (D) or (E) finding is available if the appellant did not challenge 

another finding under Family Code section 161.001(b)(1) and the trial court’s bestinterest-of-the-child finding. Thus, this case presents an issue of apparent first 

impression.

Mother contends the evidence is insufficient to support the termination of 

her parental rights under (D) and (E). In response, the Department argues that 

because Mother has conceded the (N) ground and the trial court’s best-interest 

determination, a review of the (D) or (E) ground would result in an advisory 

 

3

 The court may order termination of the parent-child relationship if the court finds by clear and 

convincing evidence: 

(1) that the parent has: 

. . . .

(M) had his or her parent-child relationship terminated with respect to another 

child based on a finding that the parent's conduct was in violation of Paragraph 

(D) or (E) or substantially equivalent provisions of the law of another state[.] 

Tex. Fam. Code Ann. § 161.001(b)(1) (West, Westlaw through 2017 1st C.S.).
6

opinion. See Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 

2000). Under the Supreme Court of Texas’s interpretation of the Texas 

Constitution, Texas courts have no jurisdiction to issue advisory opinions. See, 

e.g., Cadena Com. USA Corp. v. Texas Alco. Bev. Comm’n, 518 S.W.3d 318, 336 

(Tex. 2017) (citing Tex. Const. art. IV, §§ 1, 22); Valley Baptist Med. Ctr. v. 

Gonzalez, 33 S.W.3d at 822 (citing Tex. Const. art. II, § 1); Morrow v. Corbin, 62 

S.W.2d 641, 645–46 (Tex. 1933) (Tex. Const. art. V, §§ 3, 6). Alternatively, the 

Department argues that the record contains sufficient evidence to support the trial 

court’s findings on the (D) and (E) grounds. 

A. The Effect of the Supreme Court of Texas’s Opinion in In re N.G.

On the heels of oral argument in today’s case, the Supreme Court of Texas 

issued its opinion in In re N.G. See No. 18-0508, —S.W.3d—,—, 2019 WL 

2147263, at *4 (Tex. May 17, 2019) (per curiam). The N.G. court applied the 

factors the Supreme Court of the United States used in Santosky v. Kramer and the 

Supreme Court of Texas used in In re J.F.C. See Santosky v. Kramer, 455 U.S. 

745, 759–68, 102 S. Ct. 1388, 1398–1402, 71 L. Ed. 2d 599 (1982); In re J.F.C., 

96 S.W.3d 256, 273–274 (Tex. 2002); In re N.G., 2019 WL 2147263, at *3–4. 

Balancing these factors, and considering that the risk of error would mean 

significant consequences for future parental rights, the N.G. court concluded that a 

parent’s fundamental liberty interest in the right to parent outweighs the state’s 

interest in deciding only what is necessary for final disposition of the appeal. In re 

N.G., 2019 WL 2147263, at *4. Therefore, the N.G. court decided that allowing 

(D) and (E) findings to go unreviewed on appeal when the parent has presented the 

issue to the appellate court violates the parent’s due-process and due-course-of-law 

rights. See id. 

The N.G. court held that the court of appeals violated the mother’s dueprocess and due-course-of-law rights by failing to review the trial court’s findings 
7

under (D) and (E) when the appellant/mother had presented the issue. Id. The 

N.G. court also concluded that due process and due course of law require an 

appellate court to detail its analysis as to why a parent’s challenge to a finding 

under (D) or (E) lacks merit. See id. at *3–4. In another case the high court 

decided on the same day the court characterized the N.G. opinion as standing for 

the proposition that “due process requires an appellate court to review and detail its 

analysis as to termination of parental rights under [(D) or (E)] when challenged on 

appeal.” In re Z.M.M., No. 18-0734, —S.W.3d—,—, 2019 WL 2147266, at *2 

(Tex. May 17, 2019) (per curiam).

In In re N.G. the trial court terminated the mother’s rights based on its 

findings under subsections (D), (E), and (O) and its best-interest finding. See In re 

N.G., 2019 WL 2147263, at *1. The mother appealed and challenged each of these 

findings, unlike Mother in today’s case, who does not challenge the (N) finding or 

the best-interest finding. See id. The court of appeals in In re N.G. failed to 

address the findings under (D) or (E) because the court of appeals rejected the 

mother’s challenge to the (O) and best-interest findings. See id. The court of 

appeals did not address the various court-of-appeals cases requiring review of 

findings under (D) and (E) on nonconstitutional grounds, nor did the court of 

appeals address whether constitutional due process or due course of law requires 

this review. See In re N.G., No. 05-17-01255-CV, 2018 WL 1835697, at *4 (Tex. 

App.—Dallas Apr. 18, 2018) (mem. op.), rev’d, 2019 WL 2147263, at *6 (Tex. 

May 17, 2019). It appears that the appellant/mother did not raise either of these 

points in the court of appeals. See In re N.G., 2019 WL 2147263, at *1; In re N.G., 

2018 WL 1835697, at *4. In In re N.G. the supreme court did not address whether 

the court of appeals was required to review the sufficiency of the evidence to 

support the trial court’s findings under (D) and (E) based on nonconstitutional 
8

grounds. See In re N.G., 2019 WL 2147263, at *1–4. The mother in In re N.G. 

argued in the supreme court that the Fourteenth Amendment’s Due Process Clause 

and the Texas Constitution’s Due Course of Law provision required the court of 

appeals to review the trial court’s findings under (D) and (E). See id. at *2. In 

today’s case, Mother has not asserted these constitutional arguments. 

Because of these differences between today’s case and In re N.G., today’s 

case does not fall within the scope of the In re N.G. court’s holding. See id. at *1–

4. Nonetheless, the N.G. court made deliberate statements for future guidance in 

the conduct of litigation. Without determining whether nonconstitutional law 

required review of the trial court’s findings under (D) and (E), the N.G. court 

concluded that (1) allowing (D) and (E) findings to go unreviewed on appeal when 

the parent has presented the issue to the appellate court violates the parent’s dueprocess and due-course-of-law rights and (2) due process and due course of law 

require an appellate court to detail its analysis as to why a parent’s challenge to a 

finding under (D) or (E) lacks merit. In re N.G., 2019 WL 2147263, at *3–4. 

Although today’s case does not fall within the scope of the N.G. court’s holding, 

consistency with the high court’s recent pronouncements demands that, without 

first determining whether nonconstitutional law requires review of the trial court’s 

(D) and (E) findings, we determine whether Mother’s challenge to the (D) and (E) 

findings has merit and detail our analysis, even though another finding listed in the 

Final Order as a ground for termination provides a proper basis for the predicate 

act required under section 161.001(b)(1) and even though Mother does not 

challenge the trial court’s best-interest-of-the-child finding. See In re N.G., 2019 

WL 2147263, at *3–4.

B. The Advisory-Opinion Argument 

The Department argues that because Mother has conceded one predicate 

ground and the trial court’s best-interest determination, any review of the (D) or
9

(E) grounds would result in an advisory opinion. The parties’ arguments also raise 

the issue as to whether an appellate remedy exists if the evidence is insufficient to 

support the (D) and (E) findings, given that this court must affirm the termination 

of Mother’s parental rights because she does not challenge the (N) or the bestinterest finding. Neither the N.G. court nor the Z.M.M. court addressed these 

issues. See In re N.G., 2019 WL 2147263, at *1–4; In re Z.M.M., 2019 WL 

2147266, at *1–2. We must do so to dispose of today’s appeal.

A trial court generally must file findings of fact separately rather than recite 

them in the trial court’s judgment. See Tex. R. Civ. P. 299a; In re A.A.M., No. 14-

05-00740-CV, 2007 WL 1558701, at *3, n.3 (Tex. App.—Houston [14th Dist.] 

May 31, 2007, no pet.) (mem. op.). But, Texas Rule of Civil Procedure 306, 

entitled “Recitation of Judgment,” requires that the trial court state in its final 

termination order the specific grounds for termination. See Tex. R. Civ. P. 306. In 

today’s case, the trial court recited in its Final Order that the grounds for 

termination were the trial court’s findings by clear and convincing evidence that 

Mother engaged in the conduct described in subsections (D), (E), (N), and (O) of 

section 161.001(b)(1) and that termination of Mother’s parental rights was in 

Philip’s best interest. See Tex. Fam. Code § 161.001(b); Tex. R. Civ. P. 306. 

Because trial courts must recite the specific grounds for termination in their final 

termination orders, parties properly may assert appellate complaints against these 

grounds, and an appellate court has the power to grant appropriate appellate relief 

if, for example, the appellate court concludes that the trial evidence is legally 

insufficient to support a finding that was a ground for termination of the 

appellant’s parental rights.

4

 See Tex. Fam. Code § 161.001(b); Tex. R. Civ. P. 

 

4

 If the trial evidence is legally insufficient to support all of the findings under section 

161.001(b)(1) or the best-interest finding, the appellate court could reverse the final termination 

order and render judgment denying termination. Tex. R. App. P. 43.2(c). If the trial evidence is 
10

306; In re A.A.M., 2007 WL 1558701, at *3, n.3; In re C.M.C., 554 S.W.3d 164, 

173 (Tex. App.—Beaumont 2018, no pet.). Under this reasoning, in her second 

issue, Mother challenges part of the Final Order — the findings under (D) and (E). 

Because this court has the power to delete these grounds from the trial court’s 

Final Order, the issue of whether the evidence suffices to support these findings is 

not moot but ripe for resolution. Likewise, an opinion addressing this issue would 

not be an advisory opinion. 

C. The Effectiveness of the Available Appellate Remedies in a Future 

Termination Case Based on Subsection (M)

In its opinion in In re N.G. the Supreme Court of Texas necessarily 

concluded that courts of appeals have an appellate remedy if the trial court 

reversibly erred in making findings under subsections (D) and (E) which became 

specific grounds for termination and that this remedy would prevent these findings 

from being used under subsection (M) in a future termination proceeding. See In 

re N.G., 2019 WL 2147263, at *3–4. But, the high court did not explain why this 

is so. One rationale finds roots in statutory construction. 

The Department may prove a predicate act under subsection (M) by showing 

that “the parent has . . . had his or her parent-child relationship terminated with 

respect to another child based on a finding that the parent’s conduct was in 

violation of subsection (D) or (E) or substantially equivalent provisions of the law 

of another state.” Tex. Fam. Code § 161.001(b)(1)(M). One reasonable 

 

factually insufficient to support all of the findings under section 161.001(b)(1) or the bestinterest finding, the court of appeals could reverse the final termination order and remand for a 

new trial. Tex. R. App. P. 43.2(d). If the trial evidence is legally insufficient to support the 

findings under (D) and (E) but is legally sufficient to support a finding under another subsection 

of section 161.001(b)(1) and the best-interest finding, the appellate court could either (1) modify 

the trial court’s final order to delete the (D) and (E) findings and affirm it as modified or (2) 

reverse the trial court’s final order in part and render the judgment that the trial court should have 

rendered. Tex. R. App. P. 43.2(b), (c). 
11

interpretation of this provision is that the Department must prove that a trial court 

signed a final order terminating the parent’s parent-child relationship as to another 

child based on a finding that the parent’s conduct violated (1) subsection (D) or 

subsection (E) or (2) substantially equivalent provisions of the law of another state, 

without any requirement that the Department prove (1) the final termination order 

is final by appeal and (2) no court has deleted the finding or reversed or set aside 

the final order. See In re A.F.G., No. 14-17-00440-CV, 2017 WL 5506026, at *6

(Tex. App.—Houston [14th Dist.] Nov. 16, 2017, pet. denied) (mem. op.); In re 

A.C., 394 S.W.3d 633, 640–41 (Tex. App.—Houston [1st Dist.] 2012, no pet.). 

Another reasonable interpretation of subsection (M)’s text is that the Department 

must prove that a trial court signed a final order terminating the parent’s parentchild relationship as to another child based on a finding that the parent’s conduct 

(1) violated subsection (D) or subsection (E) or (2) substantially equivalent 

provisions of the law of another state, and also that (1) the final termination order 

is final by appeal and (2) no court has deleted the finding or reversed or set aside 

the final order.

In interpreting a statute, if one reasonable interpretation raises a serious 

doubt as to the constitutionality of the statute and another reasonable interpretation 

does not, we are to adopt the latter interpretation. See Whitman v. Am. Trucking 

Assocs., 531 U.S. 457, 471, 121 S. Ct. 903, 911, 149 L. Ed. 2d 1 (2001); FSLIC v. 

Glen Ridge I Condominiums, Ltd., 750 S.W.2d 757, 759 (Tex. 1988); Trustees of 

Indep. Sch. Dist. of Cleburne v. Johnson, 52 S.W.2d 71, 72 (Tex. 1932). 

Interpreting subsection (M) to allow the Department to prove a predicate act based 

on a termination finding as to another child when a court has deleted the finding or 

reversed the final order or when a court in a pending appeal might delete the

finding or reverse the final order would raise a serious doubt as to the 
12

constitutionality of subsection (M). Therefore, we interpret subsection (M) to 

require the Department to prove that a trial court had signed a final order 

terminating the parent’s parent-child relationship as to another child based on a 

finding that the parent’s conduct violated (1) subsection (D) or subsection (E) or 

(2) a substantially equivalent provisions of another state’s law, and also that (1) the 

final termination order is final by appeal and (2) no court has deleted the finding or 

reversed or set aside the final order. See Whitman, 531 U.S. at 471, 121 S. Ct. at 

911; Glen Ridge I Condominiums, Ltd., 750 S.W.2d at 759; Trustees of Indep. Sch. 

Dist. of Cleburne, 52 S.W.2d at 72. This interpretation of subsection (M) differs 

from that of courts that have concluded that a certified copy of a prior final 

termination order as to another child based on (D) or (E) is sufficient evidence to 

support an (M) finding. See In re A.F.G., 2017 WL 5506026, at *6; In re A.C., 394

S.W.3d at 640–41. Under today’s interpretation of subsection (M), if this court 

were to find reversible error because the evidence is legally insufficient to support 

the (D) and (E) findings in the Final Order and this court rendered judgment under 

Texas Rule of Appellate Procedure 43.2(b) or (c), our decision would have an 

impact on Mother’s rights because it would prevent the Department from using the 

Final Order to prove a predicate act under subsection (M) in a future termination 

case as to another child of Mother.

The Texas Legislature has mandated that “[a]n appeal in a suit in which 

termination of the parent-child relationship is ordered shall be given precedence 

over other civil cases by the appellate courts, shall be accelerated, and shall follow 

the procedures for an accelerated appeal under the Texas Rules of Appellate 

Procedure.” Tex. Fam. Code Ann. § 109.002(a–1) (West, Westlaw through 2017 

1st C.S.). Appellate courts are to dispose of these appeals “with the least possible 

delay.” Tex. Fam. Code Ann. § 263.405 (West, Westlaw through 2017 1st C.S.). 
13

In most situations, remedies other than a direct appeal from the final termination 

order will not be available for a party complaining that the trial evidence is 

insufficient to support the trial court’s (D) or (E) findings. Notwithstanding Texas 

Rule of Civil Procedure 329, the Texas Legislature requires that in most scenarios5

one whose parental rights have been terminated may not assert a direct or collateral 

attack on the final termination order after the sixth month following the date the 

trial court signed the order. Tex. Fam. Code Ann. § 161.211(a),(b) (West, Westlaw 

through 2017 1st C.S.). A restricted appeal is available only if the one whose 

parental rights were terminated (1) did not participate—either in person or through 

counsel—in the hearing that resulted in the final order and (2) did not timely file a 

postjudgment motion or request for findings of fact and conclusions of law, or a 

notice of appeal within the time permitted by Texas Rule of Appellate Procedure 

26.1(c). See Tex R. App. P. 30. Even if one seeks equitable-bill-of-review relief 

within six months of the final termination order, that relief is available only in 

limited circumstances. See Maree v. Zuniga, No. 14-17-00210-CV, —S.W.3d—, 

—, 2019 WL 2000464, at *3–7 (Tex. App.—Houston [14th Dist.] May 7, 2019, no 

pet. h.). 

A direct appeal from the final termination order under Family Code section 

109.002(a-1) likely presents the only opportunity for review of the trial court’s 

findings under subsections (D) and (E). See In re N.G., 2019 WL 2147263, at *3. 

In addition, if a party does not challenge these findings and waits to see if the 

Department seeks to use these findings against the party in a future termination 

 

5

 This restriction applies to a person whose parental rights have been terminated if (1) the person 

was personally served with citation, (2) the person was served by citation by publication, (3) the 

person executed an affidavit of relinquishment of parental rights, (4) the person executed an 

affidavit of waiver of interest in a child, or (5) the person’s rights have been terminated under 

Family Code section 161.002(b). Tex. Fam. Code Ann. § 161.211(a),(b) (West, Westlaw 

through 2017 1st C.S.). 
14

case as to another child, no remedy likely will be available because, in most 

scenarios, one whose parental rights have been terminated may not assert a direct 

or collateral attack against the final termination order more than six months after 

the date on which the trial court signed the order. Tex. Fam. Code Ann. § 

161.211(a),(b). In those cases, once that period expires, Texas statutes do not 

allow a party to challenge the (D) and (E) findings in the final order in the future if 

the Department seeks to terminate parental rights as to another child under 

subsection (M). 

In this appeal, Mother asks this court to review the sufficiency of the 

evidence to support the trial court’s findings under (D) and (E). If Mother were to 

succeed in this challenge, this court could modify the trial court’s Final Order by 

deleting the grounds for termination based on the (D) and (E) findings, and affirm 

the Final Order as modified. See In re C.M.C., 554 S.W.3d at 173; Tex. R. App. P.

43.2(b). This appellate remedy would preclude the Department from proceeding 

under subsection (M) in a future case seeking termination of Mother’s parental 

rights as to another child.

D. Review of the Subsection (E) Finding

Standards of Review

Due to the severity and permanency of terminating the parental relationship, 

clear and convincing evidence must support such an order. See Tex. Fam. Code 

Ann. § 161.001; In re J.F.C., 96 S.W.3d at 265–66. “Clear and convincing 

evidence” means “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.” Tex. Fam. Code Ann. § 101.007; In re J.F.C., 96 S.W.3d at 264. 

This heightened burden of proof results in a “correspondingly searching standard 

of appellate review.” In re A.C., 560 S.W.3d 624, 630 (Tex. 2018); see In re 
15

C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

In reviewing the legal sufficiency of the evidence in a parental-termination 

case, we must consider all evidence in the light most favorable to the finding to 

determine whether a reasonable factfinder could have formed a firm belief or 

conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 

2009). The factfinder is the sole arbiter of the credibility and demeanor of each 

witness. Id. at 346. We assume that the factfinder resolved disputed facts in favor 

of its finding if a reasonable factfinder could do so, and we disregard all evidence 

that a reasonable factfinder could have disbelieved. Id. at 344. Yet, this does not 

mean that we must disregard all evidence that does not support the finding. Id. 

Because of the heightened standard, we also must be mindful of any undisputed 

evidence contrary to the finding and consider that evidence in our analysis. Id. 

The evidence is legally insufficient to support the challenged finding if, after 

conducting this review of the record evidence, we determine that no reasonable 

factfinder could form a firm belief or conviction that the matter that must be 

proven is true. Id. at 344–45. 

In reviewing the factual sufficiency of the evidence under the clear-andconvincing standard, we consider and weigh disputed evidence contrary to the 

finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d at 

631; see In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the 

disputed evidence that a reasonable factfinder could not have credited in favor of 

the finding is so significant that a factfinder could not reasonably have formed a 

firm belief or conviction, then the evidence is factually insufficient.” In re J.O.A., 

283 S.W.3d at 345. We give due deference to the factfinder’s findings and we 

cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209 

S.W.3d 105, 108 (Tex. 2006). And, in making this determination, we must 
16

undertake “an exacting review of the entire record with a healthy regard for the 

constitutional interests at stake.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) 

(quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)) (internal quotations omitted). 

Nonetheless, our review must not be so rigorous that the only factfindings that 

could withstand review are those established beyond a reasonable doubt. In re 

H.R.M., 209 S.W.3d at 108. 

Sufficiency of the Evidence Supporting the Subsection (E) Finding 

In her second issue, Mother asserts that the evidence is legally and factually 

insufficient to support termination under (D) and (E). We begin by addressing 

Mother’s arguments as to the (E) finding, mindful of the requirement that Mother’s 

appeal be meaningful and the N.G. court’s directive that we detail our analysis6

 of 

the sufficiency of the evidence supporting an (E) finding. See In re N.G., 2019 WL 

2147263, at *3–4.

By making the (E) finding, the trial court found that Mother engaged in 

conduct or knowingly placed Philip with persons who engaged in conduct which 

endangered Philip’s physical or emotional well-being. Tex. Fam. Code Ann. §§ 

161.001(b)(1)(E). A finding of endangerment under (E) requires evidence that the 

endangerment resulted from the parent’s conduct, including acts, omissions, or 

failures to act. In re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.] 

2014, pet. denied). Termination under (E) must be based on more than a single act 

or omission; the statute requires a voluntary, deliberate, and conscious course of 

conduct by the parent. Id. A court properly may consider actions and inactions 

 

6

 The N.G. court did not abrogate or disapprove of the decision in In re A.B., 437 S.W.3d 498 

(Tex. 2014), nor did the N.G. court conclude that due process and due course of law mandate that 

an appellate court detail all of the relevant evidence as to why a parent’s challenge to a finding 

under (D) or (E) lacks merit. See In re N.G., 2019 WL 2147263, at *3–4; In re A.B., 437 S.W.3d 

at 502–06.
17

occurring both before and after a child’s birth to establish a course of conduct. In 

re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). 

While endangerment often involves physical endangerment, the statute does 

not require that conduct be directed at a child or that the child actually suffer 

injury; rather, the specific danger to the child’s well-being may be inferred from 

the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 

531, 533 (Tex. 1987). A parent’s conduct that subjects a child to a life of 

uncertainty and instability endangers the child’s physical and emotional wellbeing. In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018, 

no pet.). 

Mother was living with Father in Oregon when she gave birth to Philip. 

Within four months, Father physically abused Mother while he was intoxicated. 

Mother informed a Department investigator that Father had been “stressed out” 

because the family was homeless and living in a facility for homeless families. 

After Father’s domestic abuse, Mother fled to Texas with four-month old Philip. 

Mother moved in with her grandparents. That meant Mother would be residing in 

the same home as her older brother, who had sexually molested her as a child. 

Mother told investigators that her brother completely ignored them while she and 

Philip were living in the same home and that Philip was never left alone in the 

brother’s company. 

While Mother and Philip were living at Mother’s grandparents’ home, 

Mother engaged in self-harm. Suicidal ideations plagued Mother, and she may 

have attempted to stab herself. Mother had been prescribed medication to assuage 

the symptoms of her mental-health diagnoses, but failed to take advantage of these 

remedies. Mother admitted to a history of drug abuse. She told investigators that 

she had used cocaine, methamphetamine, marijuana, and ecstasy. Mother said she 
18

stopped using drugs after she met Father because he gave her a reason to live. 

Mother indicated she was willing to take a drug test, but never followed up on her 

scheduled appointment. 

At all times during the investigation, Philip was in good health, and he was 

current on his immunizations. Mother and Philip appeared to be well-bonded. 

During the Department investigator’s conversation with Mother, Mother 

denied attempting to stab herself in the stomach, because, she said, “that would be 

stupid.” She did, however, admit that she had entertained thoughts of suicide 

because she felt overwhelmed. Mother told the investigator that she had never had 

thoughts of harming Philip, that she only wanted the best for him, and that she 

loves him. Mother further stated that she needed help and could not care for Philip 

at that time. 

During the course of the investigation, Mother became emotional when 

speaking to the Department over the telephone about Philip. Yet, Mother told the 

Department’s caseworker that she would not be returning to Houston without 

Father and that she was looking for a job in Oregon. 

The trial court reasonably could have considered Mother’s mental state as 

endangering Philip’s well-being. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—

Houston [14th Dist.] 2003, no pet.) (considering mother’s schizophrenia and 

resulting suicidal thoughts, hospitalizations, and violence). Mother allowed her 

mental-health issues to go unaddressed, so much so that she admitted to no longer 

being able to care for Philip. “When a parent’s mental state allows [the parent] to 

engage in conduct that endangers the physical or emotional well-being of the child, 

that conduct has bearing on the advisability of terminating the parent’s rights.” Id

(quoting In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no writ)). 
19

Moreover, Mother continued to communicate with Father while he was 

incarcerated in Oregon. During that time Father threatened to end his relationship 

with Mother. Mother blames her self-destructive behavior on Father’s threats to 

leave her. Despite the physical abuse and emotionally destabilizing 

communications with Father, Mother insisted on continuing her relationship with 

him and ultimately decided to leave Texas and move back to Oregon to be with 

Father and to leave Philip in the care of Casa de Esperanza. 

Evidence of domestic violence may be considered as evidence of 

endangerment under subsection (E). In re K-A.B.M., 551 S.W.3d 275, 286 (Tex. 

App.—El Paso 2018, no pet.). A parent’s abusive or violent conduct can produce a 

home environment that endangers a child’s well-being. In re J.I.T.P., 99 S.W.3d 

841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Domestic violence, 

want of self-control, and propensity for violence may be considered as evidence of 

endangerment. Id.; see In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 

2007, no pet.) (considering the fact that mother “exposed her children to domestic 

violence,” including incident where mother was “smacked” in front of child, as 

evidence of endangerment under subsection (E)); see also Sylvia M. v. Dallas 

County Welfare Unit, 771 S.W.2d 198, 204 (Tex. App.—Dallas 1989, no writ) 

(considering “volatile and chaotic” marriage altercation during pregnancy and 

mother’s repeated reconciliation with abusive spouse). Violent conduct by a parent 

toward the other parent may produce an environment that endangers the physical 

or emotional well-being of a child. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

Fort Worth 2003, no pet.). 

Mother’s untreated mental-health issues gave way to behavior that presented 

specific danger to Philip’s physical and emotional well-being. Mother’s choice to 

continue her relationship with a man who had physically assaulted her and caused 
20

her extreme emotional disturbance subjects Philip to a life of uncertainty and 

instability that further endangers his physical and emotional well-being. 

Considering all the evidence in the light most favorable to the (E) finding, 

assuming the factfinder resolved disputed facts in favor of its finding if a 

reasonable factfinder could do so, disregarding all evidence that a reasonable 

factfinder could have disbelieved, being mindful of any undisputed evidence 

contrary to the finding, and considering that evidence in our analysis, we conclude 

that a reasonable factfinder could form a firm belief or conviction that Mother 

engaged in conduct or knowingly placed Philip with persons who engaged in 

conduct that endangered Philip’s physical or emotional well-being. See Tex. Fam. 

Code Ann. §§ 161.001(b)(1)(E); In re J.I.T.P. 99 S.W.3d at 845 (concluding that a 

mother’s mental state in addition to domestic violence between the parents 

supported a finding of endangerment). 

As noted above, in reviewing the factual sufficiency of the evidence we 

consider and weigh disputed evidence contrary to the finding against all the 

evidence favoring the finding. In re A.C., 560 S.W.3d at 631. Evidence at trial 

showed that Mother acted protectively towards Philip by admitting she needed help 

and relinquishing his care to Casa de Esperanza. Mother also cried on the 

telephone when asking about Philip and steadfastly maintained that she loves him 

and wants the best for him. Additionally, Mother disputed the narrative that she 

attempted to stab herself in the stomach in front of Philip. Philip was in good 

health and current on his immunizations when he and Mother arrived at the 

hospital before the Department became involved. While this evidence may weigh 

against a finding under (E), substantial evidence weighs in favor of an (E) finding. 

That evidence includes proof of Mother’s decision to move Philip into a home with 

someone who molested her as a child, Mother’s failure to address her known 
21

mental-health problems, Mother’s continued interactions with Father when she 

knew encounters with him exacerbated her already precarious mental-health status, 

Mother’s disputed self-harming behavior, and Mother’s decision to remain in a 

relationship in which there was a history of domestic abuse. 

Considering and weighing the disputed evidence contrary to the finding 

against all the evidence favoring the finding, giving due deference to the trial 

court’s findings, and after an exacting review of the entire record with a healthy 

regard for the constitutional interests at stake, we conclude that in light of the 

entire record, the disputed evidence that a reasonable factfinder could not have 

credited in favor of the finding is not so significant that a factfinder could not 

reasonably have formed a firm belief or conviction that Mother engaged in the 

conduct described in subsection (E). See In re A.B., 437 S.W.3d at 503; In re 

J.O.A., 283 S.W.3d at 345. Thus, the trial evidence stands factually sufficient to 

support the trial court’s (E) finding. 

Because we conclude the evidence is legally and factually sufficient to 

support the trial court’s finding under section 161.001(b)(1)(E), we do not address 

Mother’s arguments that the evidence is legally and factually insufficient to 

support the trial court’s finding under subsection (D). See In re T.M.T., No. 14-18-

00442-CV, 2018 WL 6053667, at *11 (Tex. App.—Houston [14th Dist.] Nov. 20, 

2018, no pet.) (mem. op.). 

III. CONCLUSION

We overrule Mother’s second issue to the extent she asserts the evidence is 

legally and factually insufficient to support the subsection (E) finding, and we need 

not address the remainder of this issue in which she asserts the evidence is legally 
22

and factually insufficient to support the subsection (D) finding.7

 

We affirm the trial court’s Final Order. 

 /s/ Kem Thompson Frost

 Chief Justice 

Panel consists of Chief Justice Frost and Justices Spain and Poissant (Frost, C.J., 

concurring).

 

7

 Mother has requested on appeal that we review her challenge to the (D) and (E) findings even 

though Mother has not challenged the (N) and best-interest findings. Thus, in today’s case, we 

do not address whether the In re N.G. opinion or the In re Z.M.M. opinion requires appellate 

courts to review (D) and (E) findings when the appellant does not ask the court to review these 

findings because of the collateral consequences and even if another finding provides a proper 

basis for the predicate act required under section 161.001(b)(1). Nor do we address whether a 

failure to challenge (D) and (E) findings on appeal results in a waiver of the review provided in

In re N.G. or whether this review only can be affirmatively waived.