in the Interest of J.G., T.G., K.G., and L.G., Minor Children

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00257-CV
___________________________

IN THE INTEREST OF J.G., T.G., K.G., AND L.G., MINOR CHILDREN

On Appeal from the 467th District Court
Denton County, Texas
Trial Court No. 19-7974-367

Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Wallach
 MEMORANDUM OPINION

Appellant J.G. (Father) appeals the trial court’s termination of his parental

rights to his four children, J.G., T.G., K.G., and L.G. 1 In nine issues, he challenges the

adjudication of his parentage, the trial court’s dismissal of his case from the jury

docket, and the seven termination grounds found by the trial court. Because we hold

that the trial court impliedly adjudicated Father as the children’s father and had

sufficient evidence to do so; that Father was not harmed by the denial of a jury trial;

and that sufficient evidence supports termination, we affirm.

BACKGROUND

In August 2019, the Texas Department of Family and Protective Services

(Department) filed an original petition for the protection of a child, for

conservatorship, and for termination in a suit affecting the parent–child relationship

with respect to Father’s daughters, J.G., T.G., K.G., and L.G. The children were 9, 8,

4, and 3 years old, respectively. In the petition, Father was named as the alleged

father. The Department stated that the children had been taken into the Department’s

care, and it asked to be named temporary sole managing conservator. The

Department requested the trial court to determine whether Father was the children’s

father; it specifically requested that genetic testing be ordered if Father denied

parentage but that testing be waived if Father admitted parentage. It requested that

We use initials to refer to the children and their family members. See Tex. Fam.
1

Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).

2
Father’s rights be terminated if (1) the children’s reunification with Father could not

be achieved or (2) he had not registered with the paternity registry and, after being

served, he failed to file an admission of paternity or counterclaim for paternity.

The Department attached to its petition an affidavit from the Department’s

caseworker who had investigated the case initially. The investigator stated that in July

2019, the Department received a report of physical neglect and neglectful supervision

involving the children. The report “expressed concerns about four children living in a

hotel room in Denton where various men were going in and out of the hotel room

and there w[ere] concerns about drugs and prostitution.” The children’s mother

(Mother) initially avoided the investigator’s attempts to meet with her and the

children, but the investigator was eventually able to locate her and the children at a

community soup kitchen. The investigator noted that although the children appeared

slightly disheveled, they seemed healthy and well-fed. Mother agreed to a drug test;

her test was positive for cocaine, and, according to other documents later filed with

the trial court, all four children also tested positive for cocaine. The trial court signed

an order for protection naming the Department as temporary sole managing

conservator and appointed a CASA advocate for the children.

The Department’s October 2019 status report to the court stated that the

Department’s primary goal was family reunification. A February 13, 2020 permanency

report to the court noted that Father had been served only recently, in January. It

further stated that the Department had done a home study on Father’s mother, which

3
ruled her out as a possible placement. The report noted that Father had been assigned

a courtesy caseworker and, although he had not started on his services—and a CASA

report stated that he had not yet received a service plan—he had begun attending

visits with the children in December 2019. According to the CASA report, Father

reported living with various family members in Wichita Falls.

On February 19, 2020, the trial court held an initial permanency hearing, and

each parent appeared in person with their respective court-appointed attorney. The

trial court then signed its initial permanency order, which stated that Father had not

demonstrated adequate and appropriate compliance with his service plan but was

working on establishing services. The court incorporated and adopted the parents’

service plans as a court order and admonished the parents of the importance of

following the plan. Father signed the order.

An April 2020 permanency report to the court reiterated that the primary

permanency goal was family reunification. By this time, a different caseworker had

been assigned to work on the case. The caseworker’s report noted that Mother had

not completed most of her services and had refused requested drug testing in

October, November, and December 2019, and that she had been arrested in March

and was currently in the Denton County jail. The report stated that Father had been

court ordered to participate in a drug and alcohol assessment, random drug testing,

parenting classes, and weekly child visitations. He had had negative drug test results in

December and March, and his April results were pending. He had not yet started his

4
parenting classes and was alternating between living with his mother and with his

girlfriend. He had been ordered to maintain employment but was currently

unemployed.

In May 2020, the Department filed a “Child’s Plan of Service” for each child

and a family service plan2 for each parent. The children’s service plans noted that

Father had weekly visits and that as of that point, Father had attended all scheduled

visits and was actively involved in the case. Father’s family plan evaluation noted that

he had tested positive for cocaine, still did not have a stable living environment, and

did not have a stable job. The plan stated that Father needed to complete a drug and

alcohol assessment and was required to attend AA or NA meetings weekly until his

drug and alcohol assessment was completed, that he needed to submit to random

drug testing, and that his failure to comply with testing would be viewed as a positive

result. It further noted that Father had stated that he had used marijuana since he was

20 years old, that the last time he was sober was two years prior when he was still with

Mother and their children, and that he smoked marijuana only when he was bored or

with friends. A CASA report filed around the same time noted that Father was the

children’s biological father, had tested positive for cocaine in April, worked part-time

as a mover, and was regularly attending visitations.

2
The document was entitled “Family Plan Evaluation,” but at trial the
Department identified it as the service plan, and it contained the required contents of
a service plan. See Tex. Fam. Code Ann. § 263.102.

5
 In May 2020, the trial court signed a permanency hearing order that

incorporated Father’s service plan and made it an order of the court. The court also

signed a temporary order following an adversary hearing. That order required Father

to comply with the Departments service plans, have suitable employment for at least

six months during the suit’s pendency, establish appropriate housing, attend AA or

NA meetings five times a week, complete drug and alcohol assessment and testing as

directed by the Department, attend counseling sessions, complete a psychosocial

evaluation, complete a parenting class, have weekly supervised visits, and pay monthly

child support of $100. Up to that point, Father had been participating in the case and

his services. However, after May 2020, Department and CASA reports indicated that

Father had all but ceased participating or communicating with the Department, and

the trial court’s orders all indicated that Father was not making sufficient progress

with his services.

In the Department’s August 2020 permanency report, in which the permanency

goal for the children had been updated to unrelated adoption or relative

conservatorship rather than family reunification, the Department noted that Father

had not performed his services and that he had not visited the children since May;

“He was confirming his visits with the children and then cancelling at the last minute

or not showing up.”

The trial court held another permanency hearing on September 2, 2020. Father

did not attend the hearing, but his attorney did. The court then signed a permanency

6
hearing order stating that Father had not demonstrated adequate and appropriate

compliance with the service plan and that Father needed to comply with his visitation

plan.

In December 2020, the Department filed another permanency report with the

court, noting again that Father had not worked his services or showed for his

visitations and that he had not been in contact with the Department. A CASA

advocate report also noted that Father had not attended visitation since May 11, 2020,

and that since that time he had stopped contacting CPS and had not asked to see his

daughters. The trial court’s permanency hearing order again found that Father had not

demonstrated adequate compliance with his service plan.

In January 2021, the case was transferred from the 367th District Court to the

467th District Court. In March 2021, the Department filed a permanency report

stating that Father had not been in contact with the Department and had not worked

his services. An April 2021 CASA advocate report stated that Father had attended a

virtual visit in January 2021 but had not shown up for scheduled visits in March and

April. That same month, the trial court held a permanency hearing, which Father’s

attorney attended but, again, Father did not. The trial court’s permanency hearing

order found that Father had not demonstrated adequate compliance with his service

plan.

In July 2021, Mother and the Department signed a mediated settlement

agreement in which Mother agreed to sign an affidavit of voluntary relinquishment for

7
her children. In the same month, the trial court signed another permanency hearing

order, again finding that Father had not demonstrated compliance with the service

plan.3

The trial court tried the case in August 2021. Father’s attorney appeared, but he

did not. Although Father had not made a jury trial demand, Mother had done so prior

to executing her relinquishment affidavit. On the day of the trial, over Father’s

objection, the trial court granted the Department’s motion to remove the case from

the jury docket and found that Father had waived his jury demand by not appearing

and participating in the proceeding.

The Department presented testimony from the Department’s caseworker, the

initial investigating caseworker, and the CASA advocate. Father did not present any

witnesses or introduce any other evidence. At the conclusion of trial, the trial court

terminated Father’s parental rights. The trial court then signed a final order of

termination in which the trial court found by clear and convincing evidence that the

parent–child relationship between Father and the children should be terminated, that

Father had committed the grounds in Texas Family Code Section 161.001(b)(1)(A),

(B), (D), (E), (F), (N), and (O), and that termination was in each child’s best interest.

In the section of the order indicating whether Father appeared for the hearing,
3

the trial court checked a box stating that Father “agreed to the terms of this order as
evidenced by signature below.” However, Father did not personally sign the order,
and his attorney signed the order as to form only.

8
The Department was appointed as permanent managing conservator. Father now

appeals.

STANDARD OF REVIEW

For a trial court to terminate a parent–child relationship, the Department must

prove two elements by clear and convincing evidence: 1) that the parent’s actions

satisfy one 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); In re

E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

Evidence is clear and convincing if it “will produce in the mind of the trier of fact a

firm belief or conviction as to the truth of the allegations sought to be established.”

Tex. Fam. Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.

To determine whether the evidence is legally sufficient in parental-termination

cases, we look at all the evidence in the light most favorable to the challenged finding

to determine whether a reasonable factfinder could form a firm belief or conviction

that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that

the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable

factfinder could have done so. Id. We disregard all evidence that a reasonable

factfinder could have disbelieved, and we consider undisputed evidence even if it is

contrary to the finding. Id. That is, we consider evidence favorable to the finding if a

reasonable factfinder could, and we disregard contrary evidence unless a reasonable

factfinder could not. See id.

9
 In evaluating the evidence’s factual sufficiency to support termination, we must

perform “an exacting review of the entire record.” In re A.B., 437 S.W.3d 498,

500 (Tex. 2014). Nevertheless, we give due deference to the factfinder’s findings and

do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex.

2006). We review the whole record to decide whether a factfinder could reasonably

form a firm conviction or belief that the Department proved the termination grounds.

Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the

factfinder reasonably could form such a firm conviction or belief, then the evidence is

factually sufficient. C.H., 89 S.W.3d at 18–19.

DISCUSSION

I. Evidence Supports Parentage Adjudication

Father did not contest his parental status in the trial court, but in his first issue

on appeal, Father argues that he has not been established as the children’s parent

because he did not sign a paternity acknowledgement, was never married to Mother

and was thus not a presumed father, had not been previously adjudicated as their

father, and did not adopt the children, and that the evidence was insufficient to

adjudicate him as the father in this proceeding. We disagree; the trial court impliedly

adjudicated Father as the children’s father, and the evidence supports that

adjudication.

Although the termination order did not expressly address the issue, the order

impliedly adjudicated Father as the children’s father because it referred to him as the

10
“Respondent Father” and terminated his parental rights under Texas Family Code

Section 161.001, and termination under that section requires the existence of a

parent–child relationship. See In re M.H. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-

19-00525-CV, 2020 WL 89139, at *3 (Tex. App.—Austin Jan. 8, 2020, no pet.) (mem.

op.). Father asserts that there was no parentage adjudication because the trial court’s

permanency orders before trial referred to Father as the “Respondent Alleged

Father.”4 Father refers to the orders’ identification of the parties and their attorneys.

Notwithstanding that language in the pretrial orders, at trial the trial court

nevertheless could and, as shown in the termination judgment, impliedly did

adjudicate Father as the children’s father.

As for the evidence to support the adjudication, “[i]n suits to terminate parental

rights, paternity may be shown by evidence admitted at trial, judicial admissions, and

pleadings and other documents in the court’s file of which the court may take judicial

notice.” Id. (citing cases). As in M.H., the record here indicates that throughout the

proceedings below, Father “did not deny paternity and instead acted in a manner that

was consistent with him being the father of the child[ren].” Id. In M.H., the court of

appeals concluded that the following behavior by the father was behavior consistent

with his being the father:

The Department’s original petition for protection of the child requested
that if the father appeared at the initial show-cause hearing and denied
paternity, then the district court should order genetic testing. The record

Various other orders in the record refer to Father as “Respondent Father.”
4

11
 reflects that the father appeared in person at the initial show-cause
hearing and announced ready. No genetic testing was ordered following
the hearing, which supports a finding that the father did not deny
paternity at that time. The father also appeared in person at subsequent
hearings and announced ready. Nothing in the temporary orders
following those hearings indicates that the father denied paternity at
those hearings. Moreover, following the initial permanency hearing, the
father filed an affidavit of indigence and requested court-appointed
counsel, which supports a finding that the father wanted to contest the
termination of his parental rights.

Id. Similarly, here, the Department’s petition sought genetic testing and termination if

Father denied paternity. Father appeared at the initial permanency hearing, and

although we have no record of that hearing,5 no genetic testing was ordered following

that hearing, and the trial court did not terminate Father’s rights based on a denial of

paternity.6 Father’s attorney appeared at the permanency hearings, and nothing in the

orders following those hearings indicated that Father’s attorney had denied Father’s

paternity at the hearings. Father filed no subsequent pleadings or motions contesting

paternity, and Father filed an affidavit of indigency to obtain an attorney to contest

termination. Also similar to M.H., Father’s attorney identified himself at trial as

The record also contains no answer filed by Father or any other pleading or
5

motion denying the Department’s allegations.
6
Father argues under this issue that we must reverse the trial court’s judgment
and render judgment for him denying termination because “[w]ithout [Father’s] being
a parent, his ‘parental rights’ cannot be terminated, for he has none.” However, an
alleged father’s parental rights may be terminated if, “after being served with citation,
he does not respond by timely filing an admission of paternity or a counterclaim for
paternity. . . .” Tex. Fam. Code Ann. § 161.002(b). Accordingly, a failure to
acknowledge paternity does not prevent a father’s parental rights to a child from being
terminated, and the Department pled for the trial court to terminate Father’s rights if
he denied paternity.

12
attorney for “Respondent Father,” and he objected to the waiver of a jury trial and

contested the termination throughout the trial. Further, prior to trial, Father filed a

motion for continuance and extension of dismissal date referring to himself as the

“Respondent Father” rather than as the alleged father and asserting that he was

working his services.

Additionally, the children had Father’s last name, and at trial the caseworker

testified that Mother provided Father’s name as the children’s biological father, that

she never alleged anyone else to be the children’s father, and that Father never denied

paternity to her. The investigator also testified that Mother provided Father’s name as

the children’s biological father; although Father asserts that the investigator said that

Mother never identified anyone as the children’s father, the testimony to which he

cites is the investigator’s testimony that initially Mother refused to provide a name.

Further, Father initially attended all of his visitation appointments and participated in

his services by agreeing to a drug test and attending a parenting class, indicating that,

at first, Father wanted to be reunited with his children because he was, in fact, their

father. See id. We hold that the evidence is legally and factually sufficient to support

the trial court’s adjudication of paternity. We overrule Father’s first issue.

II. Harmless Jury Trial Denial

In Father’s second issue, he argues that he was wrongfully denied a jury trial.

We assume for purposes of the appeal that Father was entitled to have the case

remain on the jury docket. Like most judicial errors, the wrongful denial of a jury trial

13
is subject to harmless error review. See Tex. R. App. P. 33.1; Halsell v. Dehoyos,

810 S.W.2d 371, 372 (Tex. 1991). Father makes no harm arguments in his brief, but

“[a] refusal to grant a jury trial is harmless error only if the record shows that no

material issues of fact exist and an instructed verdict would have been justified.”

Halsell, 810 S.W.2d at 372. Accordingly, we look to see if the record reveals material

fact issues that would prevent an instructed verdict7 on any of the termination

grounds.8

7
There appears to be a split among courts of appeals of how to apply this
standard. For example, the San Antonio Court of Appeals held that harmful error
existed in a termination case, not necessarily because of the record, but because in a
termination case, the Department must prove a statutory termination ground and best
interest, and, thus “numerous material fact issues exist in a parental termination
case. . . .” In re L.J.G., No. 04-17-00526-CV, 2018 WL 340129, at *5 (Tex. App.—San
Antonio Jan. 10, 2018, no pet.) (mem. op.). The Tyler Court of Appeals, on the other
hand, has analyzed the record to determine if any conflicting evidence actually existed
to create a fact issue on the termination grounds. In re J.M., No. 12-19-00353-CV,
2020 WL 1528054, at *11 (Tex. App.—Tyler Mar. 31, 2020, no pet.) (mem. op.); see
also In re K.S., No. 06-21-00062-CV, 2021 WL 4848750, at *4 (Tex. App.—Texarkana
Oct. 19, 2021, no pet.) (mem. op.) (holding jury trial denial was harmful in termination
case because of conflicting evidence regarding best interest); In re Jetall Cos., Inc.,
No. 14-20-00690-CV, 2021 WL 1420950, at *5 (Tex. App.—Houston [14th Dist.]
Apr. 15, 2021, orig. proceeding) (holding jury trial denial harmful when trial court had
determined fact issue existed); L. C. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-20-
00481-CV, 2021 WL 1148959, at *6 (Tex. App.—Austin Mar. 26, 2021, pet. denied)
(mem. op.) (holding denial harmful where the record demonstrated material fact
issues regarding best interest and termination grounds). This court has previously
applied the same approach as the Tyler court and considered whether the record
contained conflicting evidence. See In re P.L.G.M., No. 02-13-00181-CV,
2013 WL 5967037, at *5 (Tex. App.—Fort Worth Nov. 7, 2013, no pet.) (per curiam)
(mem. op.). We therefore follow that approach here.
8
Father does not challenge the trial court’s best-interest finding, and we
therefore do not consider the evidence as to that finding.

14
 As we discuss below, the Department’s evidence was sufficient to establish

termination under ground (E). None of its evidence raised a fact issue on that ground,

and Father presented no evidence at all. Father was therefore not harmed by the jury

trial denial, and we overrule Father’s second issue. However, we note that “the record

and facts in this case present a rare situation where harm has not been shown and the

holding in this case should be limited as such.” J.M., 2020 WL 1528054, at *11.

III. Sufficient Termination Ground Evidence

In his remaining issues—issues three through nine—Father challenges the legal

and factual sufficiency of the evidence on each termination ground. Because Father

produced no evidence of his own, we review only the evidence presented during the

Department’s case to determine sufficiency.

A. The Department’s Evidence

At trial, the court admitted into evidence the May 13, 2020 temporary order in

which Father was ordered to submit to a psychosocial evaluation and to follow any

recommendations made from the assessment; to participate in counseling; to

complete a parenting class; to participate in a drug and alcohol assessment and submit

to drug testing as directed by the Department; to attend AA or NA meetings and

provide proof of his attendance to his caseworker; to inform the court if he used any

illegal substances during the suit’s pendency; to establish safe, stable, and appropriate

housing and suitable employment; and to comply with his service plan.

15
 The trial court also admitted the Department’s “Family Plan Evaluation” from

July 2020, which included the service plan and the Department’s notes about Father’s

performance. That document stated that Father had tested positive for cocaine and

admitted to regular marijuana use and that the last time he was sober was over two

years prior; that Father needed to attend AA or NA meetings, participate in a drug

and alcohol assessment, and submit to random drug tests; and that failure to comply

with his drug tests would be viewed as a positive drug test. The plan further stated

that Father did not have a stable living environment and alternated between living

with his mother and his girlfriend; that Father had not had a stable job for a year; that

Father had made little effort to contact his daughters after he and Mother broke up;

and that he needed to be more active in the case.

Caseworker Denise Dull testified about Father’s compliance with his service

plan. Father had attended one parenting class and had taken one drug test in May

2020, which was positive for marijuana and cocaine. He had not submitted to drug

testing since that time, and he admitted to another caseworker that he still smokes

marijuana. Further, Father had not completed his drug and alcohol assessment or, to

her knowledge, participated in AA or NA. He had not paid any child or medical

support. He had not participated in a psychosocial evaluation or in individual

counseling. Since May 2020, he had participated in only one five-minute visit with his

children. The caseworker stated that between the children and Father, “there is no

relationship. They don’t know who he is. He is not an active participant in the case.”

16
She further testified, “There’s still alleged drug use by him, and he doesn’t have the

financial means that I have seen to be able to take care of these children or a stable

home environment for them.”

As for providing employment documentation, Father had finally provided the

caseworker with two paystubs in January 2021 but had given her nothing since that

time. He had not provided any documentation, such as a lease contract, to show that

he had stable housing.

The Department’s investigator testified and admitted that she never met

Father. Her testimony focused mostly on the children’s environment with Mother.

She also acknowledged that when she met the children, they looked “healthy, cared

for, [and] fed.” But she also said that based on Mother’s drug test results and her

refusal to do future tests, she had concerns about the children’s safety, and she

believed that the environment in which the children lived with Mother had led them

to have exposure to illegal substances. She also testified that Mother acted belligerent

and aggressively toward the investigator and that throughout her investigation, she

noticed that the children were exposed to Mother’s “dramatic mood swings.” She

believed that the environment with Mother was not safe.

On cross-examination, the investigator acknowledged that Mother appeared to

be attempting to keep the children from Father. However, she further testified that

Mother had told her that Father was not safe. She was not aware of any attempts

made by Father to “come and secure his children from the Department.” Father

17
introduced no evidence that before the children were taken into care, he had made

any effort to locate them or spend time with them.

The CASA advocate testified as well. Asked about his contact with Father, he

replied, “It’s been sporadic, but there were several times over the course of the case.

Now it’s almost two years.” He said that Father had failed to show up for “many”

visits with the children, missing more visits than he made. The advocate had been in

contact with Father’s service providers, and other than the parenting class provider,

none of the providers had notified him that Father had completed his services. To the

advocate’s knowledge, Father had not paid medical or child support or sent any gifts

to the children. Except for one time in the previous year, Father had not reached out

to him to ask how the children were doing, even though Father had his phone

number and email address.

Additionally, we presume that the trial court took judicial notice of its own

records, “including its orders and incorporated findings,” and our scope of review

under both our legal and factual sufficiency analysis is the entirety of the record

evidence. 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.). The trial court’s previous

preliminary hearing orders found that Father had not been adequately performing his

services.

18
 B. Endangerment under Subsection (E)

The trial court granted the termination in part on the grounds listed in

Subsections (D) and (E) of Section 161.001(b)(1). If a trial court’s termination is based

on (D) or (E), an appellate court must review those grounds when raised on appeal—

even if other grounds would support termination—because a termination on either of

those grounds has collateral consequences for the parent’s relationship with other

children the parent may have in the future. In re R.H., No. 02-20-00396-CV,

2021 WL 2006038, at *13 (Tex. App.—Fort Worth May 20, 2021, no pet.) (mem. op.).

Accordingly, we begin with those grounds.

Father’s sixth issue challenges the (E) ground. That ground permits termination

when 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,” when termination is in the child’s best interest. Tex. Fam. Code Ann.

§ 161.001(b)(1)(E). “Endanger” in this context means “to expose to loss or injury, to

jeopardize.” 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.) (citing Tex. Dep’t of Human Servs. v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987) and In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

Fort Worth 2003, no pet.)).

The relevant inquiry under (E) is “whether evidence exists that the

endangerment of the child’s physical well-being was the direct result of the parent’s

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

19
Termination under Subsection (E) must be based on more than a single act or

omission; a voluntary, deliberate, and conscious course of conduct by the parent is

required. J.T.G., 121 S.W.3d at 125. However, the parent’s conduct need not be

directed at the child or actually cause the child injury; “[t]he specific danger to the

child’s well-being may be inferred from parental misconduct standing alone.” M.B.,

2015 WL 4380868, at *12. Courts may consider a parent’s conduct that occurred

outside the child’s presence or after the child’s removal by the Department. 9 In re

M.S., No. 02-20-00147-CV, 2020 WL 6066400, at *4 (Tex. App.—Fort Worth Oct.

15, 2020, no pet.) (mem. op.); In re R.S., No. 02-15-00137-CV, 2015 WL 5770530, at

*6 (Tex. App.—Fort Worth Oct. 1, 2015, no pet.) (mem. op.). “As a general rule,

conduct that subjects a child to a life of uncertainty and instability endangers the

child’s physical and emotional well-being.” M.B., 2015 WL 4380868, at *12.

A trial court may consider a parent’s failure to complete a service plan as part

of its endangering-conduct analysis. Id. (citing In re R.F., 115 S.W.3d 804, 811 (Tex.

App.—Dallas 2003, no pet.)). Further, “illegal drug use after a child’s removal or

during the pendency of a termination proceeding is conduct that jeopardizes parental

9
To the extent that Father complains about the lack of evidence regarding
endangerment by him before the children were taken into the Department’s care, we
note that “the record is sparse with respect to Father [during that time] because his
complete lack of contact with the children and lack of involvement with their lives
leaves little to record.” See In re B.D.A., 546 S.W.3d 346, 363 (Tex. App.—Houston
[1st Dist.] 2018, pet. denied). Lack of contact with a child can constitute
endangerment. V.P. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-19-00531-CV,
2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no pet.) (mem. op.).

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rights and may be considered as establishing an endangering course of conduct under

subsection (E).” In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet.

denied). Although an endangerment finding based on drug use alone is not automatic,

id., “[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 that

the parent engaged in conduct that endangered the child’s physical or emotional well-

being.” In re J.A.G., No. 02-10-00002-CV, 2010 WL 4539442, at *1 (Tex. App.—Fort

Worth Nov. 10, 2010, no pet.) (mem. op.) (quoting In re J.W., No. 02-08-00211-CV,

2009 WL 806865, at *4 (Tex. App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op.)).

Further, a trial court may consider in its analysis a parent’s failure to visit, which can

endanger the child’s emotional well-being. In re M.K., No. 02-19-00459-CV,

2020 WL 1949629, at *6 (Tex. App.—Fort Worth Apr. 23, 2020, no pet.) (mem. op.);

M.B., 2015 WL 4380868, at *12.

Father tested positive for illegal drugs in his April 2020 drug test, and he

declined to take another test despite being ordered to do so. As noted above, his

failure to test authorized the trial court to presume that if he had tested, the results

would have been positive. See J.W., 2009 WL 806865, at *4. Father failed to complete

most of the services in his service plan, and between May 2020 and the August 16,

2021 trial, he made almost no effort to attend visitations or check on his children’s

well-being. The evidence was thus legally and factually sufficient to support an

endangerment finding under Section 161.001(b)(1)(E). See M.K., 2020 WL 1949629, at

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*6; In re D.C., No. 05-19-01217-CV, 2020 WL 1042692, at *10 (Tex. App.—Dallas

Mar. 4, 2020, pet. denied) (upholding endangerment finding when mother admitted

she used drugs multiple times during the termination case’s pendency and refused to

submit to monthly drug tests); M.B., 2015 WL 4380868, at *12.

Because we consider Father’s failure to complete his services as part of our

ground (E) analysis, we address here Father’s arguments under his ninth issue

challenging the termination on the (O) ground, which allows termination when a

parent failed to perform the court-ordered actions that were “necessary for the parent

to obtain the return of the child who has been in the permanent or temporary

managing conservatorship of the Department of Family and Protective Services. . . .”

See Tex. Fam. Code Ann. § 161.001(b)(1)(O).

Father does not dispute that he received the service plan, and Father did not

testify or put on any evidence explaining his failure to perform his services. See id.

§ 161.001(d). However, Father contends that the evidence is insufficient to show that

he failed to perform almost all of his services because the Department presented no

testimony from service provider representatives about Father’s efforts toward

completing his services and produced no records from service providers. Father

asserts that the caseworker testified that she “can’t say” whether Father completed his

services and that her testimony that “to [her] knowledge” certain services had not

been completed was too weak to justify termination. Father’s arguments are

unpersuasive.

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 The Department had to present competent evidence that Father did not

perform his services in order to establish ground (O) or to rely on his failure to

complete services as part of the endangerment ground. See id. § 161.001(b)(1)(O).

However, Father cites no authority for the proposition that to do so, the Department

was required to produce testimony or other evidence directly from the service

providers. Here, the CASA advocate testified that he had been in communication with

Father’s service providers and that Father had not completed his services, and, as we

discuss next, the caseworker testified about matters within her knowledge regarding

Father’s participation in his services.

A witness may only testify to matters of which the witness has personal

knowledge, see Tex. R. Evid. 602, and the context of the caseworker’s testimony

demonstrated that it was based on matters that were within her knowledge as the

caseworker. For example, the trial court had ordered that Father’s weekly visitations

with his children be supervised by the Department. The caseworker testified that since

May of the previous year, Father had attended only one Department-supervised visit

with the children. The caseworker’s testimony was supported by the CASA advocate’s

testimony, who stated that Father participated in a virtual visit in January of the

current year and had failed to show up for his other visits.

The caseworker further testified that Father had failed to submit to drug

testing. The trial court’s previous order provided that the results of those tests “will be

reported to the Department,” and thus Father’s failure to test would be within the

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caseworker’s knowledge because the Department would have received his test results

had there been any. Father presented no evidence that he had participated in drug

testing and that the results had somehow not been communicated to the Department.

Also, some of Father’s services required him to provide the information to the

Department himself; for example, the trial court’s order required Father to provide

the caseworker with proof that he had attended NA or AA. Accordingly, the

caseworker’s testimony that he had never done so was within her personal knowledge.

Further, we presume that the trial court took judicial notice of its prior permanency

hearing orders in which it found that Father had not demonstrated adequate

compliance with his services.

As for the caseworker’s testimony that she “can’t say” about Father’s services

compliance, that statement was specifically in response to a question of whether she

believed that after Father’s parenting class—the only service he completed—he had

“demonstrated that he learned anything regarding parenting from that class.” The

caseworker answered that she could not say because she had not been able to observe

Father as a parent, and she then testified about his failure to show up for his visits.

Based on the testimony of the caseworkers and the CASA advocate, the

Department’s trial exhibits, and the trial court’s knowledge of its previous orders, the

evidence is legally and factually sufficient to show that Father failed to comply with

the services ordered by the trial court. Accordingly, the trial court could consider

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Father’s failure to perform his services as evidence supporting the endangerment

finding under (E). We overrule Father’s sixth issue.

Because we have affirmed the sufficiency of the evidence to support the (E)

ground, we need not address the (D) ground. See 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.).

We therefore do not address Father’s fifth issue.

CONCLUSION

Having overruled Father’s first, second, and sixth issues, which are dispositive,

we affirm the trial court’s judgment.

/s/ Mike Wallach
Mike Wallach
Justice

Delivered: January 20, 2022

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