## In the Court of Appeals Second Appellate District of Te xas

at F ort Wor th

__ _________________________ 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 Opinio n by Chief Justice Sudderth 

### I N THE 

### I NTEREST OF 

### A.N. AND 

### A.N., C HILDREN2 MEMORANDUM OPINION App ellant O.J . (Mothe r) appe als t h e t ermina tion of her parental rights to her
twin gi rls , A.N. and A.N. (the Twins)

. 1 The trial court found that Mother had violated
four s tatutory predicat e grou nds for termi nation , 2 and a lthough Mother acknowled g es th a t th e evidence support s two of th o se predicate gro unds, she c hallenges the legal
and factual sufficiency of the other two : the two endangerment predicate grounds

. See Tex. Fa m. Code Ann. § 161.001 (b)(1)(D), (E )

. Because we conclude that there is

s ufficient ev

idence that Mother endangered the Twins ’ well

- being thro ugh her cours e of conduct

— her ongoing drug habit , her failure to complete the court

- ordered

treatment programs and service plan , a nd her incons istent visitation

— w e will a ffirm
the t ri al co urt ’ s conduct

- based endangerment fi nding and its termination order

. I
. Standard of R e view
Whe n reviewing th e sufficiency of the evidence to support a termination finding , we ask whether a rea son able f actfinder could have for me d a fi rm belief or

1 The tr ial court also terminated th e p arental rights of th e Twins ’ father, but he does not app eal

.

2 The tria l c ourt f

ound that Mo ther had “ knowingly pl aced or knowingly allowed the [Twins] to r emain in condit ions or surround ings which endanger [ed] the [ir] physical or emoti onal well

- bein g ”; “ engaged in conduct or knowingly placed the [Tw ins] with perso ns who engag ed in co nduct which endanger [ e d] the [ir] ph ysical or emotional well

- being ”; “ constructive ly abandone d the [Twins ] ”; an d “ failed to comply with the provisions of [the ] court order that specifically establis hed the actions
neces sar y for [ Mother] to obtain th e return of the [Twins ]

. ” Se e Te x. Fam. Co de Ann. § 161.0 01 (b)(1) (D), (E), (N), (O)

.3

con v icti on that the find ing wa s true. In re Z.N. , 602 S .W.3 d 541, 545 (Tex. 2020) ; In re A.C. , 56 0 S.W.3d 624, 630

– 31 (Te x. 2018)

. Both legal and factual suf ficiency turn on this quest ion ; the di stinc tion be tween the two suf f iciency anal yses “ lies in the extent
to wh ich dispute d evidence contr ary to [the] fin ding may b e consi dered ” in answerin g the questi on. A.C. , 56 0 S.W.3d at 630

. In our l egal sufficiency anal ysis , we “ look at all the evidence in the light most
fa vora ble to the fin ding , ” as sum ing tha t the factfinder resol ve d dispu ted f acts in fav or of it s find ing if a r easonable fa ctfinder could have don e so and disregard i ng all
evidence th at a re asonable factf inder cou ld have disbe lieved

. Z.N. , 602 S.W.3d at 545 (quoting I n re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002) ) ; A.C

. , 56 0 S.W.3d at 630

– 31

.

“ Fac t ua l sufficiency, in compar ison, r equir es weighing disput ed evidence con tr ary to the f inding agains t all the ev

id ence favo ring the findi ng ” to det ermine i f “ in light o f
the ent i r e reco rd, t he disputed evidence a reasonable fa c tfinder could n ot have
credite d i n favor of a finding is so s ign ifica nt that the factfinder could n ot ha ve formed a firm belief or c onv ic tion t hat the finding was t rue . ” A.C. , 56 0 S.W.3d at
630

– 31 ; see In r

e J.O.A. , 2 8 3 S.W.3d 336, 3 4 5 (Tex . 2009) ( “ When the factual

su fficiency of the ev

idence is challenged, on ly th en is d isputed or conflicting evide nce und er revie w . ” )

. There is overlap between the legal and factual sufficiency determinations ; i f th e

ev ide n c e is fac tuall y s ufficient , it is necessar ily legally su fficie nt
. In re A.O. , No. 02

- 21

- 00376

- CV, 2022 WL 12573 84, a t *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.

— Fo rt W o rth June 16, 2016, no pet.) (mem. o p.)

. Therefore, and becaus e Mo ther challen ges both lega l and factu al suffici ency , we will c o nduct a c onsolidated

re view

. See A.O. , 2022 WL 1257384, at *8 ( doing simi larly )

. I I. Discussion
T o termina te a paren t

– c hild r e lationship, t he Department m ust o ffer legally and factually su fficient cle a r a nd convincing evid ence to prove tw o e le men t s : ( 1) that

t h e pare nt ’ s action s satisf y at l eas t o ne statu tory predicate gr ou nd listed in Family
C ode S ection 161.001(b)(1) and ( 2 ) t hat term i nation is in the chi ld ’ s best interes t. Tex. Fam . Co de Ann

. § § 161. 0 01( b ) (1) , (b) (2), .206(a), ( a

– 1) ; I n r e J. F

. - G. , 627 S.W.3d 304, 312 (T ex. 202 1 ) ; I

n re J. L. , 163 S.W.3d 79, 84 ( Tex . 200 5). The trial court found
that Mot her ’ s actions satisfi e d four statutory predicate grounds and that termination

was in the Twins ’ b est interest. See Tex. Fa m. Code Ann. § 161.001(b)(1)(D), ( E) , (M), (O), (b)(2)

. Mo ther challenges two of the four predica te grounds; she does not challenge the other two, nor do e s she challeng e the best interest finding. Generally,

“ [ t] o affirm a termin ation judgment on appeal, a court need uphold only one [predicate] t ermination ground , ” plus the best interest finding

. In re N.G. , 577 S.W.3d
23 0, 23 2 (Tex. 2019)

. The disp osit i on of the appe al is thus not at issu e
— the

te rmination of M other ’ s parental r ights 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 M o ther challenge s involve h er endangerment of the Twins b y their enviro nment and by her conduct in viol ation of Subsection s (D) and (E ) of
Sect ion 161.001(b)(1)

. Tex. Fam. Code Ann

. § 161 .001 (b)(1)( D), (E)

. Because s uch endangerment fi ndings can serve as p redicate groun d s for terminating Mother ’s parental rights to other children , s ee id. § 161.001(b)(1)(M) , and b ecause Mother ’s

“ fundament al li berty inte rest at stake outweighs the [S] tate ’ s interest in deciding only
what is necess ary for fin al disposition o f the appeal , ” N.G. , 577 S.W.3d at 237 , we

mu st addre s s a t least one of the two challenged endangerment findings , even though
th e fin dings may not be dispositive

. In re C.W. , No. 02

- 21

- 00252

- CV, 2 02 2 WL 123221, a t *3 n .5 (Tex . A pp.

— Fort Wo rth Ja n. 13, 20 2 2, no pet. ) (m e m. o p.) ; In re J.B. , No. 02

- 21

- 00 239

- CV, 2 021 WL 6 1440 7 4, at *2 0 (Tex. App.

— Fo rt Worth Dec. 30, 2021, no pet. h. ) (

m em. o p.) (si mil ar)

. Addressing both (D) and (E) is not
necessary, though, unless neither withstand s appellate review . A ffi r ming one rende rs the other moot

. C.W. , 2 02 2 WL 123221, a t *3 n .5 ; I n 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 (T ex. App.

— Fort W orth Dec. 5, 2 019, pet. denied) (mem. op.)

. Here, w e nee d only address one : Subsection (E ) , the conduct

- based endangerment finding , with stand s app ellate review. S ee Tex. Fam. Code Ann. § 161.001(b)(1)(E).6

A
. The L a w on Conduct

- Ba sed Endangerment
Sub s ection ( E ) req uire s a finding that the parent “ e ngaged in conduct or knowingly placed the child with persons who engaged in conduct which endan ger [e d] the physical o r emotional well

- being of the child

. ” Id. To “ ‘ [e ] nda nger ’ means to expose to loss or in j ury, to jeop ar d iz e. ” T e x. D ep ’ t of Human Servs. v. Boyd

, 727 S.W.2d 531, 533 (Tex. 1987) ; A.O. , 2022 WL 1257384 , at *8 ; J.B. , 2021 W L 61 44074, a t * 21

. Conduct

- based endangerment under Subs ection (E) requires more than a

“ s i ngle act or omission ” ; it requ i r es a “ voluntar y, delib erate, and con scious co u r se of
cond uct
. ” J.B. , 2021 WL 61 44074 , at *21 ; In r e R.H. , N o. 02

- 20

- 00396

- C V, 2 021 WL
2006038 , at *1 3 (

Tex. App.

— F or t Worth May 20, 2 021, no pet.) ( me m. op.)

. As a

co urse of condu ct, evidence of enda ngerm e n t unde r Subsec tion (E) “ is not l imit ed to
acti o n s dir ecte d towar ds t h e child , ” J .F.

- G. , 627 S.W .3d at 315 n. 43 (quoting J.O. A. , 283 S.W.3d at 34 5 ) , a nd may include “ a ctions before the child ’ s birth, ac tions w hile
the child is not in the parent ’ s pre sen ce, and actions wh ile the chil d is in th e Department ’ s custod y . ” S e e I n re C.Y. , No. 02

- 21

- 00261

- CV, 2022 WL 500028, at *2 (T ex . Ap p.

— Fort Worth Fe b. 18 , 2022, no pet. ) (m e m. op.)

. “ [S] uch actions may

‘ cre ate an inference that similar con duct could recur an d further jeopa rdize a c hild ’ s well

- being

. ’ ” Id. (q uoting In re M.W. , No. 02

- 21

- 00146

- CV, 20 2 1 W L 367 9247, at *4 (Te x. App.

— Fo rt Wo rth Aug . 19, 202 1, pet. denie d) (mem. op.) )

.7

B
. The Evidence of Mother ’ s C o nduc t - Bas ed Endan germent The Department presente d evidenc e that Mother ’ s c ourse of con duct

— her drug habit , failure to complete her court

- ordered treatment programs and service plan , and f

ailur e to consistently visit the Tw ins

— endangered the Twins ’ well

- being

. 1. Drug Ha bit
Mo ther ’ s drug ha bit was the prim ary component of h er end angering c onduct

. Moth er admitted to the Department that she had a history of coca ine and marijuana

use an d th at becau s e of he r drug us e, the D epartment had already placed Mo ther ’ s four other children with relati ves. Sh e test e d posi tive for marijuana while she was
pregnant w

it h the Twins

. Mother admitted that she had used marijuana during h er
pr egnancy , but she claimed that the marijuana use had occurred before she actually knew that she was pregnant

. 3 “ Illegal drug us e duri n g p regnancy can support a charge
that the mother h as e nga ge d in conduct that end anger s the physical and e motional
welfare of the child. ” In re M.B. , No. 02

- 15

- 00128

- CV, 2015 WL 4380868, a t *12 (Tex

. App.

— Fort Worth July 16, 2015, no pet.) (mem. op.) ; s e e M.W. , 20 21 W L
3679 247, at *5 (affirming Sub section (E) finding based in part on evide nce that
mother had “ admitted to taking c on trolled subs tan ce s wh ile pregnan t ” and that the baby had teste d positi

ve fo r dru gs at birth

)

.

3 T he Twins were born in November 2019 and spen t the first month of their l ives in the NIC U , al though there was no evide nce as to w h y. B y ea rly December, the ho s p it al had referred Mot her ’ s case to the Department

. The Twins were removed from Mother ’ s care in M a rch 2020.8

Mother argues , though, that t he r e is no evidence that she “knowingly ” endangered t he Tw

ins because she told th e Department th at sh e had “sto pped using marijuana when she lea rned she was p regnant
. ” But “ [s] cien ter is not required for an appellant ’ s own acts [to constitu te end an g erment] u nder [S] ection 161.001(b)(1)(E)

. ”
A.O. , 2022 WL 1 257384, at *11 (quoting In r e I.D.G. , 579 S.W.3d 842, 851 (Tex. App.

— El P aso 2019, pet. denied) (op. on reh ’g)) ; see In re M.N.G

. , 147 S.W.3d 5 21, 536 (Te x. App.

— Fort Worth 2004, pet. denied) ( op. on reh ’ g ) (noting that “ scienter
i s . . . requ ire d under [S ] ubsection (E) [only ] when a pa rent places the child with
others who en gag e in an endan gering course of co nduct ”)

. Moreover, th e trial cou rt was not required to believe Mother ’ s sta tement to the D epartmen t that she had stopped using mari ju ana when she lea rned that she was p regnan t. Cf. In re J. P.B. , 180 S.W.3d 570, 57 3

– 74 (Tex. 2005) ( reiterating that the appellate court must def er to the
factfi nder ’ s reasonable determination of credibility issues , and no t ing that the
factfinder could have disbelie v ed 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.

— F ort Worth Apr. 19, 2022 , pet. filed ) (mem . op.) (

noting that
d etermining “[w] ho m to believe

. . . was the jurors ’ pr erogative ”)

. And a reasonable fa ctfin der could have doubted Mother ’s alleged abs tention
from ma rijuana , given that Mother ’ s continued use of drugs after the Twins ’ birth
contributed to their emergency r emoval

. Mother test ed positive f or marijuana only a month after the Twin s were born , while they were still in her care

. And although9

Mot her told the Department that she would s t op u sin g drugs and submit to drug

tests , she refused many of the subsequentl y requested drug t ests, and when she finally
relent ed , s he tes ted pos itive for a co ncoction of marijuana and other drugs : cocaine, opiates, and oxyc odone

. At t hat time, the Twins were appro ximately three months
old , and Mother was alrea dy on a pre

- remova l Department plan that limited her

contact with the Twins due to her ongoing drug habit

. Whether the factfinder viewed
these post

- bi rth test re sults as a return to dru gs after a brief repri e ve during pregnan cy (as Mother claims) or as a demonstration that Mother ’ s drug habit had never ceased (as the trial cou rt was entitled to believe), the tests confirmed tha t she was on drugs
when she was or shou ld have been carin g for the infant Twins

. 4 See In re C.W. , No.
02

- 14

- 00274

- CV, 2014 WL 7139645, at *5 (Tex. A p p.

— Fort Worth Dec. 12, 2014, no pet.) (mem. op.) (

rejecting argument that evidence of S ubsec tion (E) was insuffici ent when parent claimed that she had stopped usi n g dru gs when she became aw are of her
preg nancy but she tested positive for drugs after child ’ s birth and admitted using drugs after removal).
Mother acknowledge s that there was evidence of her drug use both befor e and
after the Twins ’ birth , but she contends that there was n o evidence connect ing her
d rug use to any actu al danger

. Her argument a ppears to equate Subsection (E) endangerment with actual injury , though

. A cou rse of conduct tha t “ ex pose[ d ] ” the

4 Although the Tw

ins were at breastfeeding age, there is no evidenc e as t o wheth er Moth er breastfed the Tw ins w hil e she was on drugs.10

Twins “ to loss or injury ” is suf ficient to sa tisfy Subsection (E)

— “ i t is no t necessary that

. . . the child [ren] actually suffer [ ed ] inj ury . ” B oyd

, 727 S.W.2d at 533

. M other ’ s

“ drug u se while pregnant endangered [the Twins] because [they] w [ere ] exp osed to the possibility of being born wit h adverse m edical conditions. ” In re M.D.V. , No. 14

- 04

- 00463

- C V, 2005 WL 2 787006, at *3 (Tex. App.

— Hous to n [14th D ist.] Oct. 27, 2005, no pet.) (mem . op.) (

holding similarly whe n child was born with marijuana in h er system but parent argued that there wa s no evidenc e of a resulting medical condition)

. We are not wi llin g to entertain the premise “ that there is some level of drug use while
pregnant th at is acceptable or harml ess t o the child

. ” C.W. , 2014 WL 71 39645 , at *5 ( affirming S u bsection (E) finding and rejecti ng premise )

. And because “ [n] arc otics
can im pair o r incapacitate the user ’ s ability to paren t , ” 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 s ubsta n c e while [she was or should have been] caring f

or [the Twi ns] jeopardi zed or exposed [them ] t o loss or injury. ”
M.D.V. , 2005 WL 2787006, at *4 (rejecting similar argument that ther e was “no
evi dence of how [the parent ’s] drug use wh ile caring for her children en dangered
them ”) ; s ee In re A.D.A. , No. 1 3

- 2 1

- 00229

- CV, 2022 WL 8 9186, at *7 (Tex. A pp.

— Corpus Chris ti

– Edin burg Jan. 10, 2022, no pet. ) (me m . op.) ( recognizi ng that drug us e

“ e xposes t he c hil d to the poss ibility that the parent may be impaired or imp risoned ” ( quoting In re D.J.W. , 394 S.W.3d 2 10, 221 (Te x. App.

— Houst on [1st Dist.] 2012, p et. denied) ) ; In re M

.M. , No. 2

- 08

- 029

- CV, 2008 WL 5195353, at *7 (Tex. App.

— Fort11

Worth Dec. 11, 2008, no pe t.) (mem. op.) (affirming Subsection (E) finding based in
part on evidence that the parent “ admitted that she had used drugs

. . . and had cared
for [h er child

] while she had drugs in her system ”)

. Plus, e ven after the T

wins we re removed and M o ther was order ed by the trial
court not to use d r ugs as a condition of t h e Twins ’ return , Mother did not sta y clean

. In May 2020 , when the T wins were appro xi mat ely six months old and Mother ’ s termination case was already pending , Mother t ested positive for cocaine a nd
mari juana

. A nd when the Department scheduled Moth er for additional dr ug testing
in S e ptember 2020 , Mother refused to submit to the test , allowi ng t he trial court to reasonably infer “ that [she] was avoiding tes ting becaus e [ 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 a ppl ying similar
inference where m other repeatedly refused drug tests ). “ [ A ] parent ’ s decis ion to

en gage in i llegal drug use during the pende ncy of a termination suit, when the p arent is at risk of losing a c hil d, support s a findi ng [of endan gering 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 r e C.S.L.E.H. , No. 0 2

- 10

- 00475

- CV,
2011 WL 3 79522 6, at *5 (Tex. App.

— Fort Worth Aug. 25, 2011, no pet.) (m e m. op.)

5 “ We d o not hold or imp ly that dru g 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, 9 09

– 11 (Tex. 20 21) ( Le hrmann , J., concu rring

) ).12

( si milar ) ; 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 ord ers, she used again ”)

. 2
. F a ilure to Compl ete Treatment Programs and Service Plan
M o ther also f

ail ed to complete the court

- ordered drug treat ment progra ms that
could have helped address her habit. S he c ompleted a d rug assessment and was

r eferred to MHMR fo r d rug e d ucatio n, but s h e a ttended only “ a few classes ” be fore

s topping

. See C.Y. , 2 022 WL 500028, at * 5 ( affirming Subsection (E) fin ding based in
part on parent ’s f

ail ure to attend or complet e drug treatment programs ) ; M.W. , 2 0 21
WL 3679 247, at *5 (affirming Subsection (E) fin din g based in part on evidence that
the mother “ was a longtim e drug a ddict ” and “ was u nable to stay clean ” )

. A nd
Mo ther ’s caseworker testified that , apart from the drug assessment , Mother did n ot show co m pl et

ion of any of t he other court

- ordered services out li ned in her service plan as conditions for the Twins ’ return
. 6 She was required, for ex ample, to a ttend individual counseling, but she did not do so.

6 In Marc h 202 0, wh en the trial court appointed the Department as the temporar y managing con servator of the Twins, the court issued a temporary order that require d Mother to “ comply with each requirement set out in the Department ’ s original, or any amend ed, service plan duri ng the pendency of this suit. ” The or der expressly warned that compliance with the service plan was “ necessary to obtain the return of the children ” and that “ failure to fully compl y . . . may result in the restriction or termination of pa ren tal rights

. ” [Capitalization a ltered.] A l though Mother ’ s service plan was not admitte d into evidence at t rial, it wa s part of the trial court ’ s file. See In re J.E.H. , 384 S.W.3d 864, 8 69

– 7 0 (Tex. App.

— San Antonio 2012, no pet.) (stat

ing that th e trial court cannot take judicial noti ce of the truth of13

Mother d oes n ot appear to dispute that she failed to complete her court

ordered service plan

. In fac t, o ne of the unchallenged predicate grou nds supporting
the trial court ’s judgment is a finding under Subsection (O) that Mother “ failed to comply with the provisions of a court orde r [ incorporating the s er

vice plan] that specifically established the actio ns necessary for the mother to obtai n the retu rn of the
children who have been in the permanent or temporary managing conservators hip of the Department

. ” According to Mother ’ s caseworker , Mother s aid tha t she “ did n ’ t have tim e ” to participate in th e court

- or dered services

. Th e tri al court could

“ consider [Mother ’ s] failure to complete [her ] service plan as part of its endangering

conduct analysis. ” J.G. , 2022 WL 187983, at *9 ( affirming S u bsection (E) f inding based in part on the father ’ s “ f ail [ u r e] to c omp lete most of the se rvice s in his service plan ” )

. 3
. F a ilure to Att end Visitation
Mother ’s lapses extended to her visitations as well

. She was o ffered weekly
visitation s with the Twins , and alt hough s he participated in Zoom visitations in May 2020, her pa rticipat

i on fe ll off when the Department re turned to in

- person visitat ions in June

. Af

ter that, she stopped attending or even schedul ing visit s for months at a

allegations but can “ take judicial notic e that it signed an order adopting the family service plan and what the plan listed as the necessary r equirements ” for the parent to regain custody , and if re cord is silen t, “ the trial court may be presumed to have taken judicia l notice of the records in the court ’ s file without any request being made and without an announcement in the record that it has d one so ” )

.14

t ime. Mother saw the Twins in person in June 2020, but she did not see them again
until a v i rt ua l visitation three months later in September 2020 . T hen she allowed
another six mo nth s to elapse before attending a visitation in March 20 21. By the time
of Mother ’ s termination trial in O ctob er 20 21 , the Twins we re less than three y ears old, and Mo th e r had not visit ed them for the pre ced ing ten months of their lives

. A par ent ’s inconsisten t visitation “ can be very damaging ” to a child , and “ can emotionally endanger a child ’ s wel l

- being, sup porting t ermination under [S] ubse ction (E)

. ” D. L. G. v. Te

x. De p ’ t of F a m. & Pr otective Servs

. , No s . 03

- 20

- 003 14

- CV, 03

- 20

- 003 1 5

- CV , 2020 WL 6789208, at *5 (T ex. App.

— Aus tin Nov. 19, 2020, no pet.) (mem. op.) ; In re S. I.H. , No. 02

- 11

- 00 489

- C V, 2012 WL 858643, a t *6 (Tex. App.

— Fort Worth Mar. 15, 2012, no pet.) (mem

. o p.) ( affirming Subsection (E) f in ding and quoting expert testimony regarding the impa ct of a pare nt ’s lack of consistent contact with the child)

. “ Mother ’ s inconsistent attendance at her scheduled visitations with [th e Twins thus] lends further support to the trial court ’ s finding of end angeri ng conduct

. ” C.Y. , 2022 WL 500028, at *6 ( affirming Subsection (E) f in ding based in
part on mother ’ s inconsisten t att endance at visitations ) ; see J .G. , 2022 WL 187983, at
*9 ( aff irming Subsection (E) f

in ding ba se d in part on the father ’ s failure “ to a ttend
visitation s or check on his children ’ s well

- being ” )

. I I I. Co nclusion
W hether we view the record in a light mo st favor ab le to the Subsection (E) finding or weigh the disputed ev idence for and against the fin ding , se e A.C. , 56 015

S.W.3d at 630

– 31 , a r easonab le factfinder c ould have concluded that Mother had

en gaged in a course of conduct that had endanger ed the Twins ’ physical or em ot ional
well

- be ing. 7 See T e x. Fam. Code Ann. § 161

. 001(b)(1)(E). The Depar tment pres ent ed
evidence that Mother had u sed drugs before, during , and after her pregnancy with the
T wins , that she had failed to complete her court

- ordered treatment programs and

se rvice plan , and that she had failed to consisten tly visit th e Tw ins f or a significa nt 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 c hild] , continued to use drugs after his remo val, failed to use the formal recov ery programs offered to her, and den ied that she needed help addressing her drug use ”)

. Accordingly, w e h old the evidence is legall y and factually sufficient to support
the trial court ’s Subsection (E) finding , and we a ffirm the trial court ’ s order
termi nat i ng Mo ther ’s parental right s to t he Twins

. Tex. R. Ap p. P. 43.2(a) ; see Tex.
Fam. Code Ann

. § 161.001(b)(1)(E)

.

7 Mother al so challenges aspects of the evid en ce related to t he Twi ns ’ ab usive father

. Mot her claims that the evidence of such a buse was “ largely conclusory ” and that there was no evi dence as to th e frequency of the vio lence

. B u t Mother ’ s ca seworker testified that Mother admitted havi ng been assault ed by the T wins ’ fath er on a t least one occasion , and Mother does not ci te any case law to s upport her i mplied conte ntion t hat domestic violence exposes children to harm only if th e violence occurs at a certain frequ ency. Regar dle ss , even without the evid ence of domestic viol ence , there was su fficient evidence t o support the trial court ’ s Subsec tion (E) finding

.16 /s/ Bonnie Sudderth
Bonnie Sudderth Chief Ju stice

De livered: June 9, 2022