Opinion
04-24-00125-CV
08-14-2024
IN THE INTEREST OF F.S.F., a Child
From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2022-PA-01896 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Lori I. Valenzuela, Justice
Justice Lori I. Valenzuela concurs in judgment only.
MEMORANDUM OPINION
REBECA C. MARTINEZ, CHIEF JUSTICE
This appeal arises from the trial court's order, signed after a bench trial, that terminates the parental rights of appellant L.F.R. ("Mother"), the biological mother of F.S.F. ("Child"). On appeal, Mother raises three issues, which may be liberally construed as four. In Mother's first, second, and third issues, she argues that the evidence is legally and factually insufficient to support the trial court's findings that: (1) Mother allowed Child to remain in a physically or emotionally dangerous condition or surrounding (subsection (1)(D) endangerment by conditions or surroundings); (2) Mother engaged in conduct or knowingly placed Child with persons who engaged in conduct which endangers the physical or emotional well-being of Child (subsection (1)(E) endangerment by conduct); and (3) termination of Mother's parental rights is in the best interest of Child (subsection (2) best interest). See Tex. Fam. Code Ann. § 161.001(b)(1)(D)-(E), (b)(2). Mother also argues that (4) the trial court abused its discretion in making its conservatorship finding upon a legally and factually insufficient termination order. See id. § 151.131(a). We affirm.
We refer to F.S.F. and F.S.F.'s family members by a pseudonym in accordance with the rules of appellate procedure. See Tex. R. App. P. 9.8(b)(2).
I. Background
In November 2022, the Texas Department of Family and Protective Services (hereinafter the "Department") initiated the underlying proceeding by filing a petition to terminate the parental rights of Mother and J.L.F., an individual that the Department named "alleged father," to Child, who was a newborn at the time. Thereafter, the trial court signed an "Order for Protection of a Child in an Emergency" that, among other things, appointed the Department as Child's "temporary sole managing conservator." Mother executed a family service plan, and it was adopted and incorporated into a court order. Meanwhile, Child was placed with unrelated foster parents ("Foster Parents").
In the Department's third amended - and live - petition, it alleged that (1) J.S.S. was Child's father, (2) F.H.R. was Child's "alleged father," and (3) an individual identified as "unknown father" was also Child's father.
The Department's request to terminate the parent-child relationship proceeded to a bench trial. At trial, Mother and Aleta Worden, a conservatorship worker with the Department, testified. Mother, F.H.R., and J.S.S. were each represented by separate counsel.
At the trial's conclusion, the trial court found by clear and convincing evidence that: (1) Mother allowed Child to remain in a physically or emotionally dangerous condition or surrounding; (2) Mother engaged in conduct or knowingly placed Child with persons who engaged in conduct which endangers the physical or emotional well-being of Child; (3) Mother constructively abandoned Child, who had been in the permanent or temporary managing conservatorship of the Department for not less than six months (subsection (1)(N) (constructive abandonment)); (4) Mother failed to comply with the provisions of a court order that specifically established the actions necessary for Mother to obtain the return of Child who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of Child's removal from Mother under Chapter 262 for the abuse or neglect of the Child (subsection (1)(O) failure to comply with a court-ordered service plan); (5) Mother used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of Child, and (a) failed to complete a court-ordered substance abuse treatment program, or (b) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance (subsection (1)(P) use of controlled substance); and (6) termination of Mother's parental rights is in the best interest of Child. See id. § 161.001(b)(1)(D), (E), (N), (O), (P), (b)(2). The trial court appointed the Department as Child's permanent managing conservator.
Mother timely appeals from the termination order.
The termination order also terminated the parental rights of F.H.R., as Child's "alleged father," J.S.S., as Child's "presumed father," and an "unknown father" as Child's "alleged father." None of these three "fathers" appeal the termination of their parental rights, and none is a party to this appeal.
II. Discussion
A. Standard of Review
A parent-child relationship may be terminated, pursuant to section 161.001 of the Texas Family Code, only if the trial court finds by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1) and that termination is in a child's best interest. See id. § 161.001(b)(1), (2). Clear and convincing evidence requires "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." Id. § 101.007.
We review the legal and factual sufficiency of the evidence under the standards of review established by the Texas Supreme Court in In the Interest of J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). In reviewing the legal sufficiency of the evidence, we must "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." Id. at 266. "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. In reviewing the factual sufficiency of the evidence, we "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." Id. "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." Id.
B. Law on Endangerment
Subsection 161.001(b)(1)(D) allows a trial court to terminate a parent's rights if the court finds by clear and convincing evidence that the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child[.]" Tex. Fam. Code Ann. § 161.001(b)(1)(D). Subsection (E) allows a trial court to terminate a parent's rights if the court finds by clear and convincing evidence that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Id. § 161.001(b)(1)(E). Endangerment means to expose to loss or injury, to jeopardize. Id. § 161.001(b)(1)(D); see Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
While both subsections (D) and (E) focus on endangerment, they differ regarding the source and proof of endangerment. In re N.M.R., No. 04-22-00032-CV, 2022 WL 3640223, at *3 (Tex. App.-San Antonio Aug. 24, 2022, pet. denied) (mem. op.). Subsection (D) concerns the child's living environment, rather than the conduct of the parent, though parental conduct is certainly relevant to the child's environment. Id. (citing In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.)). Under subsection (E), the cause of the endangerment must be the parent's conduct and must be the result of a conscious course of conduct rather than a single act or omission. In re J.T.G., 121 S.W.3d at 125.
C. Endangerment Evidence & Analysis
In Mother's first and second issues, she argues that the evidence is legally and factually insufficient to support the trial court's findings that: (1) Mother allowed Child to remain in a physically or emotionally dangerous condition or surrounding; and (2) Mother engaged in conduct or knowingly placed Child with persons who engaged in conduct which endangers the physical or emotional well-being of Child. See Tex. Fam. Code Ann. § 161.001(b)(1)(D)-(E).
The Texas Supreme Court has written that "[w]hile the recent improvements made by [a father in a termination proceeding] are significant, evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of drug use and irresponsible choices." In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). Indeed, an offense committed by a parent before the birth of the parent's child "can be a relevant factor in establishing an endangering course of conduct." In re E.J.M., 673 S.W.3d 310, 331 (Tex. App.-San Antonio 2023, no pet.) (en banc) (quoting In re E. N.C. , 384 S.W.3d 796, 804-05 (Tex. 2012)). Moreover, "[t]he specific danger to the child's well-being need not be established as an independent proposition, but may be inferred from parental misconduct." Id. at 331 (quoting In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.-El Paso 2015, no pet.)). Additionally, evidence of criminal conduct, convictions, and imprisonment and their effect on the parent's life and ability to parent may establish an endangering course of conduct. In re B.C.S., 479 S.W.3d at 926.
Under J.O.A., 283 S.W.3d at 346, the trial court may have considered four specific aspects of Mother's "long history of drug use and irresponsible choices." First, "[a] mother's use of illegal drugs during pregnancy endangers the physical wellbeing of her unborn child." In re E.D., 682 S.W.3d 595, 608 (Tex. App.-Houston [1st Dist.] 2023, pet. denied). Worden testified that the Department received a referral that Child was born addicted to opiates. Worden recalled that, shortly after being born, Child had tremors, which Worden characterized as a symptom of drug withdrawal. Worden confronted Mother about Child being born addicted to opiates, but Mother deflected by saying that "she went to Mexico to get some pills with [her mother ('Grandmother')]." Nevertheless, at trial, Mother acknowledged that she had lost her parental rights to seven other children before the instant termination proceeding and that her drug use played a role in each of the seven prior termination proceedings. Mother further acknowledged that Child was not her first child born addicted to drugs. As further evidence of Mother's drug use, Worden recounted that Mother's file with the Department evidenced an "extensive drug history," and Worden listed "methamphetamine, benzos, opiates, [and] heroine" as drugs that Mother had used in the past. The trial court, as the factfinder, may have found that Mother's persistent drug use while pregnant with Child and Child's older siblings constitutes evidence of endangering conduct. See J.O.A., 283 S.W.3d at 346.
Second, "[c]riminal activity that exposes a parent to incarceration is relevant evidence tending to establish a course of conduct endangering the emotional and physical well-being of the child." In re R.L.L., No. 04-18-00240-CV, 2018 WL 6069866, at *9 (Tex. App.-San Antonio Nov. 21, 2018, pet. denied). Mother acknowledged being previously arrested and convicted for robbery, felony theft, and prostitution. She has also been arrested multiple times for assault bodily injury on a family member or married partner. Indeed, Child was born in late November 2022 and Mother has been incarcerated from January 28, 2023 up through the February 8, 2024 trial on the Department's petition to terminate her parental rights. Mother noted that she "was incarcerated . . . in some of [her other termination] cases, and [she] couldn't do anything about it." For the period from October 2023 until the time of trial, Mother has been held in a federal facility on a charge of "illegal reentry," which relates to her immigration status. Indeed, the Department asked Mother, "[s]o are you facing deportation currently," to which she answered, "[w]ell, yes. I am." See In re E. N.C. , 384 S.W.3d at 805 (noting "that deportation, like incarceration, is a factor that may be considered (albeit an insufficient one in and of itself to establish endangerment), its relevance to endangerment depends on the circumstances."). Although the threat of deportation alone is insufficient to establish endangerment, the trial court may have found that Mother's multiple incarcerations coupled with the pending threat of deportation constitute evidence of endangering conduct.
Third, after Child was born, Mother "didn't have nowhere to go," so she lived with the brother of J.S.S., her incarcerated husband at the time. Worden recalled that Mother's lack of stable housing was an issue in at least one of Mother's prior termination proceedings. Although Mother's unstable housing situation alone may be insufficient to establish endangerment, the trial court may have included Mother's residing with the brother of her incarcerated husband - who was unlikely to have been Child's father due to his incarceration period - along with other evidence of endangering conduct. See In re B.N.D., No. 04-21-00286-CV, 2021 WL 6127883, at *4 (Tex. App.-San Antonio Dec. 29, 2021, no pet.) ("Mother's lack of stable housing and a consistent home environment exposed the children to a life of uncertainty and instability that endangers the children's physical and emotional well-being.").
Fourth, Mother testified that Child's only special need was difficulty walking. Worden countered, noting that Child had special needs related to delayed development in walking, trouble swallowing, and regularly regurgitating food. Worden elaborated that Mother did not understand that Child's gastrointestinal and delay issues were caused by her drug use during pregnancy. Mother similarly contended that "her other children were not affected by the drug use." Although this evidence alone may be insufficient to establish endangerment, the trial court may have included Mother's denial of Child's special needs along with other evidence of endangering conduct. See In re H.C., No. 02-23-00477-CV, 2024 WL 1561513, at *7 (Tex. App.-Fort Worth Apr. 11, 2024, no pet.) ("Evidence that the Parents denied and even refused to address [child's] special needs further supports the trial court's endangerment findings.").
Viewing all the evidence in the light most favorable to the trial court's judgment and recognizing that the factfinder is the sole arbiter of the witnesses' credibility and demeanor, we conclude a reasonable factfinder could have formed a firm belief or conviction that Mother "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(E). Thus, the evidence is legally sufficient to support this finding. Further, after considering the entire record, including any disputed or contrary evidence, we conclude the evidence is factually sufficient to support the trial court's termination under subsection 161.001(b)(1)(E) of the Texas Family Code. Mother's second issue is overruled.
Because there is sufficient evidence of subsection (E) endangerment, we need not address Mother's first issue, which challenges the sufficiency of the evidence to support the trial court's findings that Mother committed the predicate act listed in subsection (D). See In re C.E., 687 S.W.3d 304, 314 (Tex. 2024) (per curiam) ("Having found sufficient evidence to uphold the termination of Mother's parental rights under paragraph (E), we need not address paragraph (D)."); see also In re I.C., No. 04-23-00954-CV, 2024 WL 1543302, at *3 (Tex. App.-San Antonio Apr. 10, 2024, no pet.) ("Because we hold there is sufficient evidence that [mother] endangered [child's] well-being through her course of conduct, see Tex. Fam. Code Ann. § 161.001(b)(1)(E), we consider only statutory ground (E).").
D. Law on Best Interest
It is the burden of the party seeking termination to establish that termination is in the child's best interest. See In re J.F.C., 96 S.W.3d at 266. In a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The set of factors is not exhaustive, and no single factor is necessarily dispositive of the issue. Id. at 372; Int. of A.B., 269 S.W.3d 120, 126 (Tex. App.-El Paso 2008, no pet.).
These factors include: (1) the child's desires; (2) the child's present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child's best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
We recognize there is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, promptly and permanently placing a child in a safe environment is also presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a). Thus, we also consider the factors set forth in section 263.307(b) of the Family Code. Id. § 263.307(b). Additionally, evidence that proves one or more statutory grounds for termination may be probative of a child's best interest, but it does not relieve the Department of its burden to prove best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
In conducting a best interest analysis, we consider direct evidence, circumstantial evidence, subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.- San Antonio 2013, pet. denied). Additionally, a factfinder may measure a parent's future conduct by her past conduct in determining whether termination of parental rights is in the child's best interest. Id. In analyzing the evidence within the Holley framework, evidence of each Holley factor is not required before a court may find that termination is in a child's best interest. In re C.H., 89 S.W.3d at 27.
E. Best Interest Analysis
1. Prior Terminations
We have previously observed that "[c]ourts have recognized that prior terminations are relevant in determining whether a parent's rights to the child at issue should be terminated." In re S.E.S., No. 04-17-00847-CV, 2018 WL 2418446, at *4 (Tex. App.-San Antonio May 30, 2018, pet. denied) (citing In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013)). Therefore, a "prior termination of [a m]others parental rights to her other children [i]s evidence the trial court could consider in determining whether termination [i]s in [a child's] best interest." Id. In this case, Mother has had her parental rights to seven other children terminated.
2. Desires of the Child
Mother testified:
Q. Tell [t]he [c]ourt a little bit about your understanding of what [Child's] favorite things are currently.
A. I mean, I've been incarcerated this whole time. You know, she's been - [s]he was a baby, you know, the whole - the whole time that I've been, you know, incarcerated. So I have not bonded with her, you know.
In contrast, Worden testified that:
[Child is] very bonded [to her foster family]. They have five boys that dote on her. She has a special bond with her foster father especially. They love her very much. She's a little princess. She has bows, and galore, and everything that she needs.
She's taken to all of her appointments that she needs to go to. She does therapy in her home, both OT, PT, and speech. They take her to a gastroenterologist for her issues with swallowing and that's worked through speech as well. She's very loved and nurtured in the home.
Worden further testified that the Department believed that it would be in Child's best interest if
Mother's parental rights were terminated and Child were adopted by foster family, explaining:
I believe it's the case, because the parents have not addressed the reasons for removal. They have not been able to complete a service plan, particularly mom. They haven't demonstrated that they're able to meet [Child's] needs. They haven't been able to demonstrate that they're capable of parenting [Child] or that they understand the disabilities that she has or may have in the future, especially related to autism.
[Child] does exhibit signs. She's very young, but she does do like an "O" shape with her mouth. She also does a lot of tongue-jutting. So there are probably going to be needs that need to be addressed through that. It doesn't appear that mom is capable of understanding what those needs are. She hasn't demonstrated that she's interested in complying with [t]he [c]ourt's order. She is in a nurtured, loved, and stable home right now and it can lead to permanency for [Child].
Mother's admission that she is not bonded with Child and Worden's testimony of Child's bond with her foster family implicates the first Holley factor (desires of the child). "When assessing the desires of children too young to testify articulately, courts can consider their bond with their parents and prospective adoptive parents." In re A. N.C. , 679 S.W.3d 311, 327 (Tex. App.-San Antonio 2023, no pet.) (quoting E.F. v. Tex. Dep't of Fam. & Protective Servs., No. 03-11-00325-CV, 2011 WL 6938496, at *3 (Tex. App.-Austin Dec. 30, 2011, no pet.) (mem. op.)). "[T]he fact finder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent." Id. (quoting In re G.C.S., 657 S.W.3d 114, 133-34 (Tex. App.-El Paso 2022, pet. denied)). Accordingly, the first Holley factor (desires of the child) weighs in favor of termination.
3. Drug Use
Mother acknowledged that she had lost her parental rights to seven other children before the instant termination proceeding and that her drug use played a role in each of her seven prior termination proceedings.
Illicit drug use is relevant to multiple Holley factors, including a child's emotional and physical needs now and in the future (the second factor), the emotional and physical danger to a child now and in the future (the third factor), Mother's parental abilities (the fourth factor), the stability of Mother's home (the seventh factor), and the acts or omissions which may indicate an improper parent-child relationship (the eight factor). See Holley, 544 S.W.2d at 371-72. "Additionally, a parent's illegal drug use exposes [a] child to the possibility that the parent may be impaired or imprisoned." In re A.M.L., 2019 WL 6719028, at *4 (citing In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.-Houston [14th Dist.] 2017, no pet.)).
4. Available Programs
Worden testified that the service plan required Mother to complete a psychological evaluation, individual counseling, parenting classes, substance abuse classes and treatment, submit to random drug testing, gain employment, and find stable housing. Mother has, according to Worden, not completed any of the services in the service plan in the instant termination proceeding. The same is true, according to Worden, in Mother's prior termination proceedings. Worden testified that in Mother's prior investigations and termination proceedings instituted by the Department, Mother never completed her service plans. As the instant termination proceeding progressed, Mother told Worden that she had engaged in parenting classes and counseling. Worden contacted the prison where Mother was incarcerated to verify, and she was informed that Mother had not completed either service. Worden confronted Mother with the information prison officials relayed to her, and Mother backtracked and said that she was on "the wait list." Worden again verified that Mother's alternate explanation was also untrue.
Mother's failure to avail herself of the parenting classes and counseling implicates the fourth Holley factor (the parental abilities of the individuals seeking custody). Holley, 544 S.W.2d at 371-72. It also implicates the fifth Holley factor (the programs available to assist the individuals seeking custody to promote the child's best interest). Id. "A fact finder may infer from a parent's failure to take the initiative to complete the services required to regain possession of his child that he does not have the ability to motivate himself to seek out available resources needed now or in the future." In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.-Houston [1st Dist.] 2017, pet. denied); see also Tex. Fam. Code Ann. § 263.307(b)(10), (11) (providing courts may consider willingness and ability of the child's family to seek out, accept, and complete counseling services and willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time); Holley, 544 S.W.2d at 371-72 (listing parental abilities of an individual seeking custody and programs available to assist the individual as a best-interest factor).
5. Stability of the Home or Proposed Placement
After Child was born, Mother "didn't have nowhere to go," so she lived with J.S.S.'s brother. Before Mother was incarcerated, she was afforded three visits with Child. However, Mother missed all three visits.
At trial, Mother was incarcerated, but she contended that her sister ("Aunt") and Grandmother were possible placements for Child. However, Mother acknowledged that Child had never stayed with either Aunt or Grandmother. Worden testified that Aunt declined to participate in a home study and indicated that "she felt like she was being pressured to take [Child.]" Worden testified that although Grandmother was married to Mother's father, the couple did not live together. Instead, Grandmother lived with "an unidentified man," and Grandmother refused to give the Department any information on him. Worden also expressed concern about placing Child with Grandmother because Grandmother had "some criminal history as well," was open to only a temporary - not permanent - placement of Child, and Grandmother was with Mother when Mother obtained drugs.
Mother's protracted unstable housing - from staying with her brother-in-law after Child was born to being incarcerated at the time of trial - and foster family's willingness to be a long-term placement for Child implicate the seventh Holley factor (the stability of the home or proposed placement). See Holley, 544 S.W.2d at 371-72 (listing the stability of the home as a best-interest factor); In re G.V., No. 14-02-00604-CV, 2003 WL 21230176, at *5 (Tex. App.-Houston [14th Dist.] May 29, 2003, pet. denied) (mem. op.) (noting the stability that a proposed placement promises "weigh[s] heavily in the court's finding that termination is in the best interest" of a child). The stability of the home or proposed placement (the seventh factor), weighs in favor of termination regarding Mother.
F. Best Interest Disposition
After viewing all of the evidence in the light most favorable to the best-interest finding, we conclude that the trial court could have formed a firm belief or conviction that termination of Mother's parental rights was in Child's best interest. See In re J.F.C., 96 S.W.3d at 266. The first (desires of the child), third (emotional and physical danger to a child now and in the future), fourth (parental abilities of the individuals seeking custody), fifth (programs available to assist the individuals seeking custody to promote the child's best interest), seventh (stability of the home or proposed placement), and eighth (parent's acts or omissions which may indicate that the existing parent-child relationship is improper) Holley factors weigh in favor of termination. See In re J.B.-F., No. 04-18-00181-CV, 2018 WL 3551208, at *3 (Tex. App.-San Antonio July 25, 2018, pet. denied) (mem. op.) ("Evidence of a single factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest - especially when the evidence shows the parental relationship endangered the child's safety."). We further conclude that any disputed evidence, viewed in light of the entire record, could have been reconciled in favor of the trial court's best-interest finding or was not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination was in Child's best interest. See id. Therefore, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2); see also In re A.B., 437 S.W.3d 498, 505 (Tex. 2014) (recognizing an appellate court need not detail the evidence if affirming a termination judgment). Mother's third issue is overruled.
G. Conservatorship
In Mother's fourth issue, she contends that the trial court abused its discretion in making its conservatorship finding upon a legally and factually insufficient termination order. We review the trial court's appointment of a nonparent as sole managing conservator for an abuse of discretion, and we will reverse that appointment only if we determine it is arbitrary or unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Having determined the evidence is legally and factually sufficient to support the termination of Mother's parental rights, we further hold the trial court did not abuse its discretion in appointing the Department as the managing conservator of Child. In re L.G.R., 498 S.W.3d 195, 207 (Tex. App.-Houston [14th Dist.] 2016, pet. denied) (concluding no abuse of discretion in conservatorship finding where the evidence was sufficient to support termination of parental rights). We overrule Mother's fourth issue.
H. Response to Concurrence
The concurrence believes that we are obligated to detail our analysis overruling Mother's legal and factual sufficiency challenges to both subsections (D) and (E). The concurrence's belief is rooted in a misreading of In the Interest of N.G., 577 S.W.3d 230 (Tex. 2019) (per curiam) and survives only through a strained reading of recent supreme court precedent clearly rejecting the concurrence's position. See In re C.E., 687 S.W.3d 304, 314 (Tex. 2024) (per curiam) ("Having found sufficient evidence to uphold the termination of Mother's parental rights under paragraph (E), we need not address paragraph (D).").
The supreme court held in In the Interest of N.G.: "We hold that due process and due course of law requirements mandate that an appellate court detail its analysis for an appeal of termination of parental rights under section 161.001(b)(1)(D) or (E) of the Family Code." Id. at 237 (emphasis added). This holding was based upon due-process protections and the significant "collateral consequences of terminating parental rights under section 161.001(b)(1)(D) or (E)." In re N.G., 577 S.W.3d at 234 (emphasis added); see id. at 234-37. These consequences result because section 161.001(b)(1)(M) "provides that parental rights may be terminated if clear and convincing evidence supports that the parent '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.'" Id. (quoting Tex. Fam. Code Ann. § 161.001(b)(1)(M) (emphasis added)).
As the Third Court of Appeals succinctly put it:
[T]h[e] collateral consequences [identified by the supreme court in In the Interest of N.G.] are identical whether there is a (D) finding alone, an (E) finding alone, or both a (D) and an (E) finding. If we were to conclude in this case that the evidence was insufficient under (E), that would not lessen the collateral consequences for the parents. The parents would still be subject to termination of their future parental rights under (M) because of our affirmance of the endangerment finding under (D). And if we were to conclude that the evidence was sufficient under both (D) and (E), that would not increase the collateral consequences for the parents. The affirmed endangerment finding under (D) is enough, by itself, to trigger the application of (M) in future termination proceedings, regardless of what we might decide as to the additional endangerment finding.See J.B.M.H. v. Tex. Dep't of Fam. & Protective Servs., No. 03-22-00661-CV, 2023 WL 2920315, at *8 (Tex. App.-Austin Apr. 13, 2023, pet. denied) (mem. op.).
The concurrence does not explain how due process could be denied to Mother based on an unreviewed (D) finding when, as here, we have reviewed and sanctioned an (E) finding from the same termination order and subsection (M) requires only a previous termination of a parent-child relationship "based on a finding that the parent's conduct was in violation of Paragraph (D) or (E)." Tex. Fam. Code Ann. § 161.001(b)(1)(M) (emphasis added).
True enough, the N.G. court concluded:
[W]e grant the petition for review and reverse the court of appeals' judgment affirming the trial court's termination of the mother's parental rights because the court of appeals erred in failing to review the legal and factual sufficiency of the evidence to support section 161.001(b)(1)(D) and (E) findings as grounds for termination.In re N.G., 577 S.W.3d at 239 (emphasis added). This conclusion is "significant," as the concurrence puts it, because In the Interest of N.G. was the first case in which the supreme court specifically identified this error - a failure of an intermediate appellate court to review both (D) and (E) findings when challenged. The supreme court concluded that a court of appeals cannot ignore both findings when challenged on appeal. However, this conclusion does not imply that a court of appeals errs by detailing its analysis as to only (D) or (E) when affirming a termination order. When both grounds are challenged, error results, as in In the Interest of N.G., when neither ground is analyzed, but due process is satisfied when termination is affirmed upon a detailed analysis of either ground. See In re C.E., 687 S.W.3d at 314; In re N.G., 577 S.W.3d at 234; In re I.C., No. 04-23-00954-CV, 2024 WL 1543302, at *3 (Tex. App.-San Antonio Apr. 10, 2024, no pet.); J.B.M.H., 2023 WL 2920315, at *8; see also Tex. Fam. Code Ann. § 161.001(b)(1)(M). As we have previously stated: "Because grounds (D) and (E) implicate due process and due course of law requirements, we 'must provide the details of [our] analysis' for either of these grounds which we affirm." In re X.J.R., No. 04-20-00368-CV, 2021 WL 112175, at *3 (Tex. App.-San Antonio Jan. 13, 2021, pet. denied) (emphasis added) (quoting In re N.G., 577 S.W.3d at 237).
To be sure, this "either/or" requirement does not preclude analysis on both grounds. In fact, analysis on both grounds may naturally comprise the bulk of our case because the (D) and (E) grounds are interrelated. See In re R.R.A., 687 S.W.3d 269, 279 (Tex. 2024) (detailing analyses as to (D) and (E)); In re J.J.V.M.M., No. 04-22-00405-CV, 2022 WL 17479144, at *2 (Tex. App.- San Antonio Dec. 7, 2022, no pet.) (mem. op.) (consolidating examination of (D) and (E) findings). While the concurrence characterizes In the Interest of I.C. as a departure, it is our only precedent to explicitly consider whether a detailed analysis under both (D) and (E) is required, in contrast to permitted or done as a matter of course. See In re I.C., No. 04-23-00954-CV, 2024 WL 1543302, at *3 (Tex. App.-San Antonio Apr. 10, 2024, no pet.). The other cases collected by the concurrence simply do not explore the matter.
The "either/or" approach may be preferable to avoid unsettled or uncertain matters when only one of the grounds between (D) and (E) rests on a strong legal and factual footing. Cf. In re J.A.B., No. 04-23-00907-CV, 2024 WL 1421986, at *3 (Tex. App.-San Antonio Apr. 3, 2024, pet. denied) (noting distinctions in applications of subsections (D) and (E)).
In the Interest of M.K.V. is not controlling because it concerned whether review was required when a parent had previously-reviewed findings under subsections (D) and (E) and sought review of subsequent (D) and (E) findings in a subsequent termination order. In re M.K.V., 648 S.W.3d 478, 485 (Tex. App.-San Antonio 2021, no pet.). The M.K.V. court determined that review was required, stating: "To the extent that the trial court's findings under subsections (D) or (E) from this case could be relied on in the future, . . . "unreviewed findings under subsections (D) and (E) could create a future risk of a due process violation." Id. The M.K.V. court did not explain the potential future risk that it identified in that situation. See id. Here, as explained, the future risk is the same regardless of whether we uphold one or both of the subsection (D) and (E) findings in the trial court's termination order. See In re C.E., 687 S.W.3d at 314; In re N.G., 577 S.W.3d at 234; In re I.C., 2024 WL 1543302, at *3; J.B.M.H., 2023 WL 2920315, at *8; see also Tex. Fam. Code Ann. § 161.001(b)(1)(M).
The supreme court's decision in In the Interest of C.E. should put the matter to rest. In that case, the trial court terminated the mother's parental rights based on the predicate subsections (D), (E) and (O), a best-interest finding, and section 161.003. See id. at 307. The Second Court of Appeals found that the evidence was legally insufficient to sustain findings under the three predicate grounds and the finding under section 161.003. In re C.E., No. 02-22-00285-CV, 2023 WL 170762, at *1 (Tex. App.-Fort Worth Jan. 12, 2023), rev'd, 687 S.W.3d at 314. The Texas Supreme Court reversed, holding the evidence was legally sufficient to support termination under the subsection (E) predicate ground. In re C.E., 687 S.W.3d at 314. It then wrote: "Having found sufficient evidence to uphold the termination of Mother's parental rights under paragraph (E), we need not address paragraph (D)," and it remanded for "further proceedings on Mother's remaining issues that the court of appeals did not address." Id. (emphasis added).
Subsection 161.003 concerns termination based upon a parent's mental illness. See Tex. Fam. Code Ann. § 161.003.
Rather than take the supreme court's statement at face value, the concurrence posits that review of subsection (D) was not required in In the Interest of C.E. because the mother did not appeal to the high court and because the court of appeals' subsection (D) holding was not affected and[,] . . .subsection (D) was not left unreviewed.” In re F.S.F., No. 04-24-00125-CV, Slip Op., 6 (Aug. 14, 2024, no pet. h.) (Rios, J., concurring). The mother, of course, did not appeal to the supreme court because she won below. As to the intermediate appellate court's subsection (D) holding it was the subsection (D) analysis not being "left unreviewed," hollowed out and implicitly overruled; while the supreme court did not analyze subsection (D) directly, the intermediate appellate court's subsection (D) analysis was infused with the same mistakes addressed by the supreme court with respect to subsection (E). See In re C.E., 687 S.W.3d at 310-14; In re C.E., No. 02-22-00285-CV, 2023 WL 170762, at *22-23. Moreover, the supreme court reversed the entirety of the court of appeals' judgment. See In re C.E., 687 S.W.3d at 314. The supreme court's legal-sufficiency review did not reach subsection (D), and it did not remand for reconsideration simply because no due process concerns remained after the supreme court upheld the trial court's subsection (E) finding.
Tellingly, the concurrence does not "provide the details of its analysis" as to the trial court's subsection (D) finding. See In re N.G., 577 S.W.3d at 237. In that respect we are in accord. Due process does not require that we detail our analysis as to subsection (D) after having found, as we have, that the evidence is legally and factually sufficient to support the trial court's subsection (E) finding.
III. Conclusion
We affirm the trial court's parental termination order.
CONCURRING OPINION
Irene Rios, Justice
I agree there is sufficient evidence supporting the trial court's best interest determination and finding under subsection 161.001(b)(1)(E). See Tex. Fam. Code Ann. §§ 161.001(b)(1)(E), (b)(2). I also conclude there is sufficient evidence to support the trial court's subsection 161.001(b)(1)(D) finding. See id. § 161.001(b)(1)(D); In re B.R., No. 02-11-00146-CV, 2011 WL 5515502, at *3-4 (Tex. App.-Fort Worth Nov. 10, 2011, no pet.) (mem. op.) (concluding Mother's drug use while pregnant coupled with incarceration during the pendency of the case was sufficient to support the trial court's subsection (D) and (E) findings). However, Chief Justice Martinez's opinion does not address statutory ground (D). I write separately to express concerns with the decision to forgo analysis of the trial court's finding under statutory ground (D).
Subsection 161.001(b)(1)(M) of the Texas Family Code provides that parental rights may be terminated if clear and convincing evidence supports that the parent "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) . . . ." Tex. Fam. Code Ann § 161.001(b)(1)(M). "Therefore, when parental rights have been terminated under either section 161.001(b)(1)(D) or (E), that ground becomes a basis to terminate that parent's rights to other children." In re N.G., 577 S.W.3d 230, 234 (Tex. 2019). "Because only one ground is required to terminate parental rights-and therefore a section 161.001(b)(1)(M) ground based on a prior termination would be sufficient to terminate parental rights to another child in another termination proceeding-the collateral consequences of terminating parental rights under section 161.001(b)(1)(D) or (E) are significant." Id. "When a parent has presented the issue on appeal, an appellate court that denies review of a section 161(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent's only chance for review of a finding that will be binding as to parental rights to other children." Id. at 235. Accordingly, the supreme court held due process concerns mandate that if a court of appeals affirms the termination on either of these grounds, it must provide the details of its analysis. Id. at 237.
Here, Chief Justice Martinez provides a detailed analysis of ground (E) but not ground (D). However, this court does not only affirm on ground (E), its judgment affirms the entire termination order, which includes the trial court's finding on the challenged but unreviewed ground (D). "Allowing section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court . . . violates the parent's due process and due course of law rights." Id. at 237. In this appeal, Mother challenges the trial court's (D) and (E) findings. Thus, I believe the court's failure to review ground (D) runs afoul of due process and due course of law. See id. at 235 ("A parent may be denied the fundamental liberty interest in parenting only after they have been provided due process and due course of law, and terminating parental rights based on a challenged, unreviewed section 161.001(b)(1)(D) or (E) finding runs afoul of this principle."). Mother could potentially suffer a collateral consequence that violates her due process rights if a trial court in the future terminated her rights to other children using ground (M) alone based on the unreviewed ground (D) in this case. In that scenario, Mother's fundamental liberty interest in parenting would be denied without due process and due course of law because the future termination would be based on a challenged, unreviewed subsection 161.001(b)(1)(D) finding in this appeal. See id.
The reason not to address an additional endangerment ground when one has already been reviewed and affirmed might seem logical considering we are to hand down "a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal." See Tex. R. App. P. 47.1. However, the supreme court in In re N.G. concluded "that the parent's fundamental liberty interest at stake outweighs the state's interest in deciding only what is necessary for final disposition of the appeal." N.G., 577 S.W.3d at 237. Therefore, if challenged on appeal, we should address the sufficiency of the evidence to support the trial court's findings under both grounds (D) and (E) even when we determine there is sufficient evidence of a single termination ground. See In re L.G., 596 S.W.3d 778, 781 (Tex. 2020) (emphasis added) ("Consistent with In re N.G., 577 S.W.3d at 235-36, we conclude that the court of appeals erred in failing to detail its analysis of the challenged findings under section 161.001(b)(1)(D) and (E)."); In re D.J.R., No. 04-23-00568-CV, 2023 WL 8246666, at *2 (Tex. App.-San Antonio Nov. 29, 2023, no pet.) (mem. op.) ("[E]ven though the trial court's unchallenged findings under subsections (N) and (O) may support its termination order, we must still consider [Mother's] issues relating to the sufficiency of the evidence to support the trial court's findings under subsections (D) and (E)" because "termination findings under subsections (D) and (E) may serve as the basis for a future termination of parental rights proceeding").
Chief Justice Martinez opines In re I.C., No. 04-23-00954-CV, 2024 WL 1543302 (Tex. App.-San Antonio Apr. 10, 2024, no pet.) (mem. op.), is the only precedent from this court to explicitly consider whether a detailed analysis under both (D) and (E) is required. However, she fails to recognize that three years prior to In re I.C.'s issuance, this court acknowledged the necessity to review challenged (D) and (E) findings on appeal even when parental rights to other children have already been terminated on previously reviewed (D) and (E) findings. See In re M.K.V., 648 S.W.3d 478, 485 (Tex. App.-San Antonio 2021, no pet.) ("Even recognizing that a parent may have a previous reviewed finding under subsections (D) and (E) against them, any challenged but unreviewed findings under subsections (D) and (E) could create a future risk of a due process violation[, and] [f]or that reason, we review the trial court's findings under subsections (D) and (E)."). Chief Justice Martinez's reasoning that the unreviewed (D) finding in this case does not increase the collateral consequences of that finding is irreconcilable with this court's prior conclusion that any unreviewed but challenged findings under subsections (D) and (E) would create a future risk of a due process violation. See id. She fails to explain why this court would require review of (D) and (E) findings in a subsequent appeal even when there are previously reviewed (D) and (E) findings in a prior appeal, yet not be required to review a challenged (D) finding in the same appeal simply because the court affirmed the sufficiency of the evidence on the challenged (E) finding. I cannot reconcile Chief Justice Martinez's opinion in this appeal or the holding in In re I.C. with this court's prior holding in In re M.K.V. See Mitschke v. Borromeo, 645 S.W.3d 251, 257 (Tex. 2022) ("If one appellate panel decides a case, and another panel of the same court differently resolves a materially indistinguishable question in contravention of a holding in the prior decision, the second panel has violated the foundational rule of stare decisis.").
To support her position, Chief Justice Martinez also cites In re X.J.R., No. 04-20-00368-CV, 2021 WL 112175, at *3 (Tex. App.-San Antonio Jan. 13, 2021, pet. denied) (mem. op.). Notably, the X.J.R. court provided a detailed analysis on grounds (D) and (E). The reliance on X.J.R. is puzzling.
Chief Justice Martinez also puts much emphasis on the supreme court's use of the disjunctive word "or" throughout its opinion in In re N.G. She opines the supreme court referred to review of "(D) or (E)" throughout In re N.G. because review of either ground is sufficient to satisfy due process concerns. I disagree.
The supreme court repeatedly used the disjunctive word "or" throughout its analysis of In re N.G. because we are required to review termination of the endangerment grounds only when they are challenged on appeal. However, if the trial court only made a finding on subsection (D), we of course would not analyze subsection (E) findings because subsection (E) findings would not be challenged on appeal. Likewise, if the trial court made a finding on both endangerment grounds, yet the parent only challenged one of those endangerment grounds, we would only review the challenged ground. The supreme court's use of the word "or" created flexibility to accommodate every situation where either a subsection (D) finding alone, a subsection (E) finding alone, or both subsections (D) and (E) findings were challenged on appeal. The parent in In re N.G. challenged the trial court's findings under both subsections (D) and (E). N.G., 577 S.W.3d at 233; see also In re N.G., 575 S.W.3d 370, 376 (Tex. App.-Dallas 2018), rev'd, 577 S.W.3d 230 (Tex. 2019). Significantly, in its application of the new precedent, the supreme court in In re N.G. concluded that the court of appeals "erred in failing to review the legal and factual sufficiency of the evidence to support section 161.001(b)(1)(D) and (E) findings as grounds for termination . . . ." N.G., 577 S.W.3d at 239 (emphasis added); see also L.G., 596 S.W.3d at 781.
The Dallas Court of Appeals reviewed both grounds (D) and (E) on remand even though it recognized that only one statutory ground under section 161.001(b)(1) of the Texas Family Code is necessary. See In re N.G., No. 05-17-01255-CV, 2019 WL 4126496, at *4-7 (Tex. App.-Dallas Aug. 30, 2019, pet. denied) (mem. op.).
I am not persuaded by Chief Justice Martinez's reliance on In re C.E., 687 S.W.3d 304 (Tex. 2024). In that case, the Fort Worth Court of Appeals determined the evidence was insufficient to terminate the mother's parental rights on grounds (D) and (E). In re C.E., No. 02-22-00285-CV, 2023 WL 170762, at *1 (Tex. App.-Fort Worth Jan. 12, 2023), rev'd, 687 S.W.3d 304 (Tex. 2024). The supreme court reversed the court of appeals, holding there was sufficient evidence to terminate on ground (E) and declined to address the sufficiency of the evidence on ground (D), a ground already reviewed by the court of appeals. See C.E., 687 S.W.3d at 314. In re C.E. may seem on point with this case. However, that case is both factually and procedurally distinguishable from the case before us.
Though not relevant here, the court of appeals also determined there was insufficient evidence on ground (O). See In re C.E., 687 S.W.3d 304, 307 (Tex. 2024).
First, the Department filed the petition for discretionary review in In re C.E., not the parent. When the parent challenges subsection (D) or (E) findings, due process requires we review those findings. See N.G., 577 S.W.3d at 237 (emphasis added) ("Allowing section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court thus violates the parent's due process and due course of law rights."). The same cannot be said when the Department challenges those findings.
Second, in In re C.E., the supreme court did not address the court of appeals' prior holding that the evidence was insufficient to support subsection (D). See C.E., 687 S.W.3d at 314. Instead, after concluding there was sufficient evidence under subsection (E), the supreme court remanded the case to the court to address the "remaining issues that the court of appeals did not address." Id. (emphasis added). Thus, the supreme court left intact the court of appeals' holding under subsection (D) and directed the court of appeals to consider only the issues it had not previously considered. Therefore, the court of appeals' subsection (D) holding was not affected and will presumably remain for purposes of the court of appeals' analysis on remand. Accordingly, subsection (D) was not left unreviewed, and In re N.G.'s requirement to review both subsections (D) and (E) was served.
While Chief Justice Martinez emphasizes the supreme court's decision not to address the trial court's subsection (E) findings in In re C.E., she fails to explain why Justice Bland stated the supreme court must review both subsections (D) and (E) in In re R.R.A., 687 S.W.3d 269, 279 (Tex. 2024), an opinion that was issued after In re C.E. See In re R.R.A., 687 S.W.3d 269, 279 (Tex. 2024) ("Although termination under (P) is sufficient to reverse the judgment of the court of appeals, we must also review termination under subsections (D) and (E) because a finding of termination under those grounds may justify termination of parental rights to other children under subsection (M).").
Compare In re C.E., 687 S.W.3d at 314 (holding, in an opinion issued on March 1, 2024, that "[h]aving found sufficient evidence to uphold the termination of Mother's parental rights under paragraph (E), we need not address paragraph (D)"), with In re R.R.A., 687 S.W.3d 269, 281 (Tex. 2024) (emphasis added) (holding, in an opinion issued on March 22, 2024, "that legally sufficient evidence supports the trial court's determination that Father's conduct endangered the children under (D) and (E)").
I agree with the court's judgment affirming the trial court's termination order. But because Mother's fundamental liberties to parent children are at stake, I believe we must address the sufficiency of the evidence under both challenged grounds (D) and (E). Notably, since the supreme court issued In re N.G., this court has repeatedly reviewed the sufficiency of the evidence supporting both endangerment grounds when they have been challenged on appeal. See In re K.A.W., No. 04-22-00724-CV, 2023 WL 2672876, at *3 (Tex. App.-San Antonio Mar. 29, 2023, no pet.) (mem. op.) ("Although Mother does not challenge predicate ground (O), Mother's due process and due course of law rights require that we consider Mother's issue as to the trial court's findings under grounds (D) and (E) because these findings may impact future termination proceedings."); In re J.C., No. 04-21-00421-CV, 2022 WL 379957, at *2 (Tex. App.-San Antonio Feb. 9, 2022, pet. denied) (mem. op.) (same). But see In re I.C., No. 04-23-00954-CV, 2024 WL 1543302, at *3 (Tex. App.-San Antonio Apr. 10, 2024, no pet.) (mem. op.) (declining to address subsection (D) when holding there is sufficient evidence to support the trial court's subsection (E) finding despite an entire progeny of caselaw from this court requiring review of both endangerment grounds when challenged on appeal).
See In re E.S.P., No. 04-23-00956-CV, 2024 WL 1642926, at *2 (Tex. App.-San Antonio Apr. 17, 2024, pet. denied) (mem. op.) ("[B]ecause termination under subsection 161.001(b)(1)(D) or (E) may have implications for a parent's parental rights to other children, . . . we will consider Mother['s] and Father's sufficiency argument as to subsections (D) and (E) even though they do not challenge termination under subsections (N) . . ., (O) . . ., and (P) . . . ."); In re I.F.E.-G., No. 04-22-00755-CV, 2023 WL 3856733, at *2 (Tex. App.-San Antonio June 7, 2023, no pet.) (mem. op.) ("When a parent challenges findings under subsection (D) and/or subsection (E), we must address those grounds even if there are other predicate grounds because of the potential future consequences of parental rights to another child."); In re A.L.S., 660 S.W.3d 257, 263 (Tex. App.-San Antonio 2022, pet. denied) (providing appellate courts must address a parent's challenges to subsections (D) and (E) "because termination under subsections (D) or (E) may have implications for a parent's parental rights to other children"); In re N.M.R., No. 04-22-00032-CV, 2022 WL 3640223, at *3 (Tex. App.-San Antonio Aug. 24, 2022, pet. denied) (mem. op.) ("When challenged, due process requires us to review the trial court's findings under both [sub]sections 161.001(b)(1)(D) and (E) . . . ."); In re B.N.D., No. 04-21-00286-CV, 2021 WL 6127883, at *2 (Tex. App.-San Antonio Dec. 29, 2021, no pet.) (mem. op.) ("Because of the potential future consequences of an endangerment finding for parental rights to another child, we begin by addressing the sufficiency of the evidence to support the trial court's findings under subsections (D) and (E)."); In re X.J.R., No. 04-20-00368-CV, 2021 WL 112175, at *3 (Tex. App.-San Antonio Jan. 13, 2021, pet. denied) (mem. op.) ("Because grounds (D) and (E) implicate due process and due course of law requirements, we 'must provide the details of [our] analysis' for either of these grounds which we affirm." (quoting N.G., 577 S.W.3d at 237)); In re L.P., No. 04-20-00140-CV, 2020 WL 5027385, at *7 (Tex. App.-San Antonio Aug. 26, 2020, pet. denied) (mem. op.) (analyzing both grounds (D) and (E)); In re I.N.D., No. 04-20-00121-CV, 2020 WL 2441375, at *2-4 (Tex. App.-San Antonio May 13, 2020, pet. denied) (mem. op.) (holding we must review the sufficiency of the evidence supporting the trial court's findings under both subsections (D) and (E) "because termination on an endangerment ground may later be used to terminate parental rights to another child . . . ."); In re C.W., No. 04-18-00249-CV, 2020 WL 2044635, at *1 (Tex. App.-San Antonio Apr. 29, 2020, no pet.) (mem. op.) ("On May 17, 2019, the supreme court held in In re N.G., 577 S.W.3d 230, 235 (Tex. 2019), that 'even when another ground is sufficient for termination, because of the potential consequences for parental rights to a different child,' if a parent presents issues on appeal relating to the trial court's findings pursuant to subsections (D) and (E), an appellate court must address those issues."); In re A.B.R., No. 04-19-00631-CV, 2020 WL 1159043, at *2 (Tex. App.-San Antonio Mar. 11, 2020, pet. denied) (mem. op.) (holding we must address appellant's challenges to the trial court's subsections (D) and (E) findings because they may have implications for a parent's parental rights to other children); In re N.N.M., No. 04-19-00369-CV, 2019 WL 5196399, at *2 (Tex. App.-San Antonio Oct. 16, 2019, no pet.) (mem. op.) ("Given [In re N.G.'s] holding by the supreme court, we must consider whether an arguable ground for appeal exists with respect to subsections (b)(1)(D) and (E)."); In re E.F.Z., No. 04-19-00169-CV, 2019 WL 4044030, at *1 (Tex. App.- San Antonio Aug. 28, 2019, no pet.) (mem. op.) (reviewing subsections (D) and (E) in a consolidated analysis because "appellate courts are mandated to address issues raised on appeal challenging a trial court's findings under those subsections").
In re I.C. was also authored by Chief Justice Martinez.
Because the court only addresses the sufficiency of the evidence supporting ground (E) when the sufficiency of the evidence supporting ground (D) was also challenged on appeal, I concur in the judgment only.