In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-22-00036-CV

___________________________

On Appeal from the 322nd District Court

Tarrant County, Texas

Trial Court No. 322-678457-20

Before Sudderth, C.J.; Wallach and Walker, JJ.

Memorandum Opinion by Chief Justice Sudderth

IN THE INTEREST OF A.N. AND A.N., CHILDREN
2

MEMORANDUM OPINION

Appellant O.J. (Mother) appeals the termination of her parental rights to her 

twin girls, A.N. and A.N. (the Twins).

1

 The trial court found that Mother had violated 

four statutory predicate grounds for termination,

2

and although Mother acknowledges 

that the evidence supports two of those predicate grounds, she challenges the legal 

and factual sufficiency of the other two: the two endangerment predicate grounds. 

See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). Because we conclude that there is 

sufficient evidence that Mother endangered the Twins’ well-being through her course 

of conduct—her ongoing drug habit, her failure to complete the court-ordered

treatment programs and service plan, and her inconsistent visitation—we will affirm

the trial court’s conduct-based endangerment finding and its termination order.

I. Standard of Review

When reviewing the sufficiency of the evidence to support a termination

finding, we ask whether a reasonable factfinder could have formed a firm belief or

1The trial court also terminated the parental rights of the Twins’ father, but he 

does not appeal.

2The trial court found that Mother had “knowingly placed or knowingly 

allowed the [Twins] to remain in conditions or surroundings which endanger[ed]

the[ir] physical or emotional well-being”; “engaged in conduct or knowingly placed 

the [Twins] with persons who engaged in conduct which endanger[ed] the[ir] physical 

or emotional well-being”; “constructively abandoned the [Twins]”; and “failed to 

comply with the provisions of [the] court order that specifically established the actions 

necessary for [Mother] to obtain the return of the [Twins].” See Tex. Fam. Code Ann. 

§ 161.001(b)(1)(D), (E), (N), (O).
3

conviction that the finding was true. In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020); In re

A.C., 560 S.W.3d 624, 630–31 (Tex. 2018). Both legal and factual sufficiency turn on 

this question; the distinction between the two sufficiency analyses “lies in the extent 

to which disputed evidence contrary to [the] finding may be considered” in answering 

the question. A.C., 560 S.W.3d at 630.

In our legal sufficiency analysis, we “look at all the evidence in the light most 

favorable to the finding,” assuming that the factfinder resolved disputed facts in favor 

of its finding if a reasonable factfinder could have done so and disregarding all 

evidence that a reasonable factfinder could have disbelieved. Z.N., 602 S.W.3d at 545

(quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); A.C., 560 S.W.3d at 630–31. 

“Factual sufficiency, in comparison, requires weighing disputed evidence contrary to 

the finding against all the evidence favoring the finding” to determine if “in light of 

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

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

formed a firm belief or conviction that the finding was true.” A.C., 560 S.W.3d at

630–31; see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“When the factual 

sufficiency of the evidence is challenged, only then is disputed or conflicting evidence 

under review.”). 

There is overlap between the legal and factual sufficiency determinations; if the 

evidence is factually sufficient, it is necessarily legally sufficient. In re A.O., No. 02-21-

00376-CV, 2022 WL 1257384, at *8 (Tex. App.—Fort Worth Apr. 28, 2022, no pet. 
4

h.) (mem. op.); In re A.S., No. 02-16-00076-CV, 2016 WL 3364838, at *7 (Tex. 

App.—Fort Worth June 16, 2016, no pet.) (mem. op.). Therefore, and because

Mother challenges both legal and factual sufficiency, we will conduct a consolidated 

review. See A.O., 2022 WL 1257384, at *8 (doing similarly).

II. Discussion

To terminate a parent–child relationship, the Department must offer legally 

and factually sufficient clear and convincing evidence to prove two elements: (1) that 

the parent’s actions satisfy at least one statutory predicate ground listed in Family 

Code Section 161.001(b)(1) and (2) that termination is in the child’s best interest. 

Tex. Fam. Code Ann. §§ 161.001(b)(1), (b)(2), .206(a), (a–1); In re J.F.-G., 627 S.W.3d 

304, 312 (Tex. 2021); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). The trial court found 

that Mother’s actions satisfied four statutory predicate grounds and that termination 

was in the Twins’ best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (M), 

(O), (b)(2). Mother challenges two of the four predicate grounds; she does not 

challenge the other two, nor does she challenge the best interest finding. Generally,

“[t]o affirm a termination judgment on appeal, a court need uphold only one 

[predicate] termination ground,” plus the best interest finding. In re N.G., 577 S.W.3d 

230, 232 (Tex. 2019). The disposition of the appeal is thus not at issue—the

termination of Mother’s parental rights to the Twins can be upheld on either of the 

unchallenged predicate grounds. 
5

Normally, we would stop there. See Tex. R. App. P. 47.1. But the two 

predicate grounds that Mother challenges involve her endangerment of the Twins by

their environment and by her conduct in violation of Subsections (D) and (E) of

Section 161.001(b)(1). Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). Because such 

endangerment findings can serve as predicate grounds for terminating Mother’s 

parental rights to other children, see id. § 161.001(b)(1)(M), and because Mother’s 

“fundamental liberty interest at stake outweighs the [S]tate’s interest in deciding only 

what is necessary for final disposition of the appeal,” N.G., 577 S.W.3d at 237, we 

must address at least one of the two challenged endangerment findings, even though 

the findings may not be dispositive. In re C.W., No. 02-21-00252-CV, 2022 WL 

123221, at *3 n.5 (Tex. App.—Fort Worth Jan. 13, 2022, no pet.) (mem. op.); In re

J.B., No. 02-21-00239-CV, 2021 WL 6144074, at *20 (Tex. App.—Fort Worth Dec. 

30, 2021, no pet. h.) (mem. op.) (similar). Addressing both (D) and (E) is not 

necessary, though, unless neither withstands appellate review. Affirming one renders 

the other moot. C.W., 2022 WL 123221, at *3 n.5; In re E.C., No. 02-20-00022-CV, 

2020 WL 2071755, at *5 (Tex. App.—Fort Worth Apr. 30, 2020, no pet.) (mem. op.); 

In re T.C., No. 02-19-00291-CV, 2019 WL 6606172, at *1 n.3 (Tex. App.—Fort Worth 

Dec. 5, 2019, pet. denied) (mem. op.). 

Here, we need only address one: Subsection (E), the conduct-based 

endangerment finding, withstands appellate review. See Tex. Fam. Code Ann. 

§ 161.001(b)(1)(E). 
6

A. The Law on Conduct-Based Endangerment

Subsection (E) requires a finding that the parent “engaged in conduct or 

knowingly placed the child with persons who engaged in conduct which endanger[ed]

the physical or emotional well-being of the child.” Id. To “‘[e]ndanger’ means to 

expose to loss or injury, to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 

531, 533 (Tex. 1987); A.O., 2022 WL 1257384, at *8; J.B., 2021 WL 6144074, at *21.

Conduct-based endangerment under Subsection (E) requires more than a 

“single act or omission”; it requires a “voluntary, deliberate, and conscious course of 

conduct.” J.B., 2021 WL 6144074, at *21; 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.). As a 

course of conduct, evidence of endangerment under Subsection (E) “is not limited to 

actions directed towards the child,” J.F.-G., 627 S.W.3d at 315 n.43 (quoting J.O.A., 

283 S.W.3d at 345), and may include “actions before the child’s birth, actions while 

the child is not in the parent’s presence, and actions while the child is in the 

Department’s custody.” See In re C.Y., No. 02-21-00261-CV, 2022 WL 500028, at *2 

(Tex. App.—Fort Worth Feb. 18, 2022, no pet.) (mem. op.). “[S]uch actions may 

‘create an inference that similar conduct could recur and further jeopardize a child’s 

well-being.’” Id. (quoting In re M.W., No. 02-21-00146-CV, 2021 WL 3679247, at *4 

(Tex. App.—Fort Worth Aug. 19, 2021, pet. denied) (mem. op.)).
7

B. The Evidence of Mother’s Conduct-Based Endangerment

The Department presented evidence that Mother’s course of conduct—her 

drug habit, failure to complete her court-ordered treatment programs and service 

plan, and failure to consistently visit the Twins—endangered the Twins’ well-being. 

1. Drug Habit

Mother’s drug habit was the primary component of her endangering conduct. 

Mother admitted to the Department that she had a history of cocaine and marijuana 

use and that because of her drug use, the Department had already placed Mother’s

four other children with relatives. She tested positive for marijuana while she was 

pregnant with the Twins. Mother admitted that she had used marijuana during her 

pregnancy, but she claimed that the marijuana use had occurred before she actually 

knew that she was pregnant.

3 “Illegal drug use during pregnancy can support a charge 

that the mother has engaged in conduct that endangers the physical and emotional 

welfare of the child.” In re M.B., No. 02-15-00128-CV, 2015 WL 4380868, at *12

(Tex. App.—Fort Worth July 16, 2015, no pet.) (mem. op.); see M.W., 2021 WL 

3679247, at *5 (affirming Subsection (E) finding based in part on evidence that

mother had “admitted to taking controlled substances while pregnant” and that the 

baby had tested positive for drugs at birth). 

3The Twins were born in November 2019 and spent the first month of their 

lives in the NICU, although there was no evidence as to why. By early December, the 

hospital had referred Mother’s case to the Department. The Twins were removed 

from Mother’s care in March 2020. 
8

Mother argues, though, that there is no evidence that she “knowingly” 

endangered the Twins because she told the Department that she had “stopped using 

marijuana when she learned she was pregnant.” But “[s]cienter is not required for an 

appellant’s own acts [to constitute endangerment] under [S]ection 161.001(b)(1)(E).” 

A.O., 2022 WL 1257384, at *11 (quoting In re I.D.G., 579 S.W.3d 842, 851 (Tex. 

App.—El Paso 2019, pet. denied) (op. on reh’g)); see In re M.N.G., 147 S.W.3d 521,

536 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g) (noting that “scienter 

is . . . required under [S]ubsection (E) [only] when a parent places the child with 

others who engage in an endangering course of conduct”). Moreover, the trial court 

was not required to believe Mother’s statement to the Department that she had 

stopped using marijuana when she learned that she was pregnant. Cf. In re J.P.B., 180 

S.W.3d 570, 573–74 (Tex. 2005) (reiterating that the appellate court must defer to the 

factfinder’s reasonable determination of credibility issues, and noting that the 

factfinder could have disbelieved the father’s testimony “that he did not know how 

[his child] was injured”); In re C.W., No. 02-21-00340-CV, 2022 WL 1155908, at *2

n.2 (Tex. App.—Fort Worth Apr. 19, 2022, pet. filed) (mem. op.) (noting that 

determining “[w]hom to believe . . . was the jurors’ prerogative”).

And a reasonable factfinder could have doubted Mother’s alleged abstention 

from marijuana, given that Mother’s continued use of drugs after the Twins’ birth

contributed to their emergency removal. Mother tested positive for marijuana only a 

month after the Twins were born, while they were still in her care. And although 
9

Mother told the Department that she would stop using drugs and submit to drug 

tests, she refused many of the subsequently requested drug tests, and when she finally 

relented, she tested positive for a concoction of marijuana and other drugs: cocaine,

opiates, and oxycodone. At that time, the Twins were approximately three months

old, and Mother was already on a pre-removal Department plan that limited her

contact with the Twins due to her ongoing drug habit. Whether the factfinder viewed 

these post-birth test results as a return to drugs after a brief reprieve during pregnancy

(as Mother claims) or as a demonstration that Mother’s drug habit had never ceased 

(as the trial court was entitled to believe), the tests confirmed that she was on drugs 

when she was or should have been caring for the infant Twins.

4

 See In re C.W., No. 

02-14-00274-CV, 2014 WL 7139645, at *5 (Tex. App.—Fort Worth Dec. 12, 2014, no 

pet.) (mem. op.) (rejecting argument that evidence of Subsection (E) was insufficient

when parent claimed that she had stopped using drugs when she became aware of her 

pregnancy but she tested positive for drugs after child’s birth and admitted using 

drugs after removal). 

Mother acknowledges that there was evidence of her drug use both before and 

after the Twins’ birth, but she contends that there was no evidence connecting her

drug use to any actual danger. Her argument appears to equate Subsection (E)

endangerment with actual injury, though. A course of conduct that “expose[d]” the 

4Although the Twins were at breastfeeding age, there is no evidence as to 

whether Mother breastfed the Twins while she was on drugs. 
10

Twins “to loss or injury” is sufficient to satisfy Subsection (E)—“it is not necessary 

that . . . the child[ren] actually suffer[ed] injury.” Boyd, 727 S.W.2d at 533. Mother’s

“drug use while pregnant endangered [the Twins] because [they] w[ere] exposed to the 

possibility of being born with adverse medical conditions.” In re M.D.V., No. 14-04-

00463-CV, 2005 WL 2787006, at *3 (Tex. App.—Houston [14th Dist.] Oct. 27, 2005, 

no pet.) (mem. op.) (holding similarly when child was born with marijuana in her 

system but parent argued that there was no evidence of a resulting medical condition). 

We are not willing to entertain the premise “that there is some level of drug use while

pregnant that is acceptable or harmless to the child.” C.W., 2014 WL 7139645, at *5

(affirming Subsection (E) finding and rejecting premise). And because “[n]arcotics 

can impair or incapacitate the user’s ability to parent,” In re M.M., No. 02-21-00185-

CV, 2021 WL 5227177, at *6 (Tex. App.—Fort Worth Nov. 10, 2021, no pet.) (mem.

op.), Mother’s “use of a mind-altering, illegal substance while [she was or should have 

been] caring for [the Twins] jeopardized or exposed [them] to loss or injury.” 

M.D.V., 2005 WL 2787006, at *4 (rejecting similar argument that there was “no

evidence of how [the parent’s] drug use while caring for her children endangered 

them”); see In re A.D.A., No. 13-21-00229-CV, 2022 WL 89186, at *7 (Tex. App.—

Corpus Christi–Edinburg Jan. 10, 2022, no pet.) (mem. op.) (recognizing that drug use 

“exposes the child to the possibility that the parent may be impaired or imprisoned” 

(quoting In re D.J.W., 394 S.W.3d 210, 221 (Tex. App.—Houston [1st Dist.] 2012, pet.

denied)); In re M.M., No. 2-08-029-CV, 2008 WL 5195353, at *7 (Tex. App.—Fort
11

Worth Dec. 11, 2008, no pet.) (mem. op.) (affirming Subsection (E) finding based in 

part on evidence that the parent “admitted that she had used drugs . . . and had cared 

for [her child] while she had drugs in her system”). 

Plus, even after the Twins were removed and Mother was ordered by the trial 

court not to use drugs as a condition of the Twins’ return, Mother did not stay clean. 

In May 2020, when the Twins were approximately six months old and Mother’s 

termination case was already pending, Mother tested positive for cocaine and 

marijuana. And when the Department scheduled Mother for additional drug testing

in September 2020, Mother refused to submit to the test, allowing the trial court to

reasonably infer “that [she] was avoiding testing because [she] was using drugs.” C.Y., 

2022 WL 500028, at *4 (quoting In re J.W., No. 2-08-211-CV, 2009 WL 806865, at *4 

(Tex. App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op.), and applying similar 

inference where mother repeatedly refused drug tests). “[A] parent’s decision to 

engage in illegal drug use during the pendency of a termination suit, when the parent 

is at risk of losing a child, supports a finding [of endangering conduct].”

5

 Id. at *3 

(quoting In re J.G., No. 02-21-00257-CV, 2022 WL 187983, at *9 (Tex. App.—Fort 

Worth Jan. 20, 2022, no pet.) (mem. op.)); In re C.S.L.E.H., No. 02-10-00475-CV, 

2011 WL 3795226, at *5 (Tex. App.—Fort Worth Aug. 25, 2011, no pet.) (mem. op.)

5“We do not hold or imply that drug use, standing alone, automatically 

demonstrates endangering conduct.” C.Y., 2022 WL 500028, at *4 n.10 (citing In re

L.C.L., 629 S.W.3d 909, 909–11 (Tex. 2021) (Lehrmann, J., concurring)).
12

(similar); see M.M., 2021 WL 5227177, at *6 (affirming Subsection (E) finding based in 

part on evidence that mother “used illegal drugs even though she knew that her 

parental rights were in jeopardy, and after the . . . agreed orders, she used again”).

2. Failure to Complete Treatment Programs and Service Plan

Mother also failed to complete the court-ordered drug treatment programs that 

could have helped address her habit. She completed a drug assessment and was 

referred to MHMR for drug education, but she attended only “a few classes” before 

stopping. See C.Y., 2022 WL 500028, at *5 (affirming Subsection (E) finding based in 

part on parent’s failure to attend or complete drug treatment programs); M.W., 2021

WL 3679247, at *5 (affirming Subsection (E) finding based in part on evidence that 

the mother “was a longtime drug addict” and “was unable to stay clean”). And 

Mother’s caseworker testified that, apart from the drug assessment, Mother did not 

show completion of any of the other court-ordered services outlined in her service 

plan as conditions for the Twins’ return.

6

 She was required, for example, to attend 

individual counseling, but she did not do so.

6

In March 2020, when the trial court appointed the Department as the 

temporary managing conservator of the Twins, the court issued a temporary order

that required Mother to “comply with each requirement set out in the Department’s

original, or any amended, service plan during the pendency of this suit.” The order 

expressly warned that compliance with the service plan was “necessary to obtain the 

return of the children” and that “failure to fully comply . . . may result in the 

restriction or termination of parental rights.” [Capitalization altered.] Although 

Mother’s service plan was not admitted into evidence at trial, it was part of the trial

court’s file. See In re J.E.H., 384 S.W.3d 864, 869–70 (Tex. App.—San Antonio 2012, 

no pet.) (stating that the trial court cannot take judicial notice of the truth of 
13

Mother does not appear to dispute that she failed to complete her courtordered service plan. In fact, one of the unchallenged predicate grounds supporting

the trial court’s judgment is a finding under Subsection (O) that Mother “failed to 

comply with the provisions of a court order [incorporating the service plan] that 

specifically established the actions necessary for the mother to obtain the return of the

children who have been in the permanent or temporary managing conservatorship of 

the Department.” According to Mother’s caseworker, Mother said that she “didn’t 

have time” to participate in the court-ordered services. The trial court could 

“consider [Mother’s] failure to complete [her] service plan as part of its endangeringconduct analysis.” J.G., 2022 WL 187983, at *9 (affirming Subsection (E) finding

based in part on the father’s “fail[ure] to complete most of the services in his service 

plan”).

3. Failure to Attend Visitation

Mother’s lapses extended to her visitations as well. She was offered weekly 

visitations with the Twins, and although she participated in Zoom visitations in May 

2020, her participation fell off when the Department returned to in-person visitations

in June. After that, she stopped attending or even scheduling visits for months at a 

allegations but can “take judicial notice that it signed an order adopting the family 

service plan and what the plan listed as the necessary requirements” for the parent to 

regain custody, and if record is silent, “the trial court may be presumed to have taken 

judicial notice of the records in the court’s file without any request being made and 

without an announcement in the record that it has done so”).
14

time. Mother saw the Twins in person in June 2020, but she did not see them again 

until a virtual visitation three months later in September 2020. Then she allowed 

another six months to elapse before attending a visitation in March 2021. By the time 

of Mother’s termination trial in October 2021, the Twins were less than three years 

old, and Mother had not visited them for the preceding ten months of their lives.

A parent’s inconsistent visitation “can be very damaging” to a child, and “can 

emotionally endanger a child’s well-being, supporting termination under [S]ubsection

(E).” D.L.G. v. Tex. Dep’t of Fam. & Protective Servs., Nos. 03-20-00314-CV, 03-20-

00315-CV, 2020 WL 6789208, at *5 (Tex. App.—Austin Nov. 19, 2020, no pet.)

(mem. op.); In re S.I.H., No. 02-11-00489-CV, 2012 WL 858643, at *6 (Tex. App.—

Fort Worth Mar. 15, 2012, no pet.) (mem. op.) (affirming Subsection (E) finding and 

quoting expert testimony regarding the impact of a parent’s lack of consistent contact 

with the child). “Mother’s inconsistent attendance at her scheduled visitations with 

[the Twins thus] lends further support to the trial court’s finding of endangering 

conduct.” C.Y., 2022 WL 500028, at *6 (affirming Subsection (E) finding based in 

part on mother’s inconsistent attendance at visitations); see J.G., 2022 WL 187983, at 

*9 (affirming Subsection (E) finding based in part on the father’s failure “to attend 

visitations or check on his children’s well-being”).

III. Conclusion

Whether we view the record in a light most favorable to the Subsection (E) 

finding or weigh the disputed evidence for and against the finding, see A.C., 560 
15

S.W.3d at 630–31, a reasonable factfinder could have concluded that Mother had

engaged in a course of conduct that had endangered the Twins’ physical or emotional 

well-being.7 See Tex. Fam. Code Ann. § 161.001(b)(1)(E). The Department presented 

evidence that Mother had used drugs before, during, and after her pregnancy with the 

Twins, that she had failed to complete her court-ordered treatment programs and

service plan, and that she had failed to consistently visit the Twins for a significant

portion of their lives. Cf. C.W., 2014 WL 7139645, at *6 (affirming Subsection (E) 

finding based in part on evidence “that [the m]other used drugs while pregnant with 

[the child], continued to use drugs after his removal, failed to use the formal recovery

programs offered to her, and denied that she needed help addressing her drug use”). 

Accordingly, we hold the evidence is legally and factually sufficient to support

the trial court’s Subsection (E) finding, and we affirm the trial court’s order 

terminating Mother’s parental rights to the Twins. Tex. R. App. P. 43.2(a); see Tex. 

Fam. Code Ann. § 161.001(b)(1)(E).

7Mother also challenges aspects of the evidence related to the Twins’ abusive

father. Mother claims that the evidence of such abuse was “largely conclusory” and 

that there was no evidence as to the frequency of the violence. But Mother’s 

caseworker testified that Mother admitted having been assaulted by the Twins’ father

on at least one occasion, and Mother does not cite any case law to support her implied 

contention that domestic violence exposes children to harm only if the violence

occurs at a certain frequency. Regardless, even without the evidence of domestic

violence, there was sufficient evidence to support the trial court’s Subsection (E)

finding.
16

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Delivered: June 9, 2022