in the Interest of P.W., a Child v. Texas Department of Family and Protective Services ( 2019 )


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  • Affirmed and Majority and Concurring Opinions filed June 4, 2019.
    In The
    Fourteenth Court of Appeals
    NO. 14-18-01070-CV
    IN THE INTEREST OF P.W., A CHILD
    On Appeal from the 315th District Court
    Harris County, Texas
    Trial Court Cause No. 2017-05035J
    MAJORITY OPINION
    In this accelerated appeal in a termination-of-parental-rights case, we
    consider as an issue of apparent first impression whether a parent may get review
    of the sufficiency of the evidence to support the trial court’s findings under
    subsections (D) and (E) of Family Code section 161.001(b)(1), even though the
    parent does not challenge either the trial court’s finding under another subsection
    of section 161.001(b)(1) or the trial court’s finding that termination of the parent’s
    parental rights is in the child’s best interest. Based on recent cases from the
    Supreme Court of Texas, we must determine whether the appellant’s challenge to
    the subsection (D) and subsection (E) findings has merit and detail our analysis,
    even if another finding that is listed in the final order as a ground for termination
    provides a proper basis for the predicate act required under section 161.001(b)(1)
    and even if the appellant does not challenge the trial court’s best-interest-of-the-
    child finding. We have the power to grant an appropriate appellate remedy if we
    sustain the appellant’s challenge to the trial court’s findings, and this appellate
    remedy would preclude the Department of Family and Protective Services from
    using the trial court’s termination order as a basis for a subsection (M) finding in a
    future case seeking termination of the appellant’s parental rights as to another
    child. Thus, contrary to the Department’s arguments, the issue of whether the
    evidence suffices to support the trial court’s findings stands ripe for resolution.
    This issue is not moot, and our opinion addressing the issue does not amount to an
    advisory opinion.
    We conclude that the record contains legally and factually sufficient
    evidence to support the trial court’s finding under subsection (E), so we need not
    address the sufficiency of the evidence to support the trial court’s finding under
    subsection (D). We affirm the trial court’s final order terminating the parent-child
    relationship between the appellant and the child (“Final Order”).
    I. FACTUAL AND PROCEDURAL BACKGROUND
    Appellant (“Mother”) gave birth to Philip1 in 2017, in Oregon. Mother listed
    John (“Father”) as Philip’s father on the child’s birth certificate. When Father went
    to jail for domestic abuse, Mother and Philip moved to Houston, Texas.
    The Department became involved with the family when Mother and four-
    month-old Philip were admitted to a hospital in Harris County because Mother was
    1
    We use pseudonyms to refer to the child and the father. See Tex. Fam. Code Ann. § 109.002(d);
    Tex. R. App. P. 9.8.
    2
    having suicidal ideations and harming herself. Mother blamed these behaviors on
    Father’s threat to leave her. Mother told hospital staff members that she did not
    want to harm Philip. Mother said that she needed help and explained that she could
    not take care of the child.
    Mother told a Department investigator that before she met Father she was
    “doing as many drugs as possible.” Mother confirmed that she had been diagnosed
    with bipolar disorder and major depressive disorder. The domestic-abuse charges
    for which Father had been incarcerated arose out of an incident in which Father
    physically abused Mother when he was intoxicated. In commenting on the abuse,
    Mother reported that Father was under great stress as a result of the couple being
    homeless.
    Before Mother’s release from the hospital, she agreed to let Casa de
    Esperanza, a children and family services charity, care for Philip until she could
    get her life more settled. Three months later, the Department initiated this suit
    requesting termination of Mother’s parental rights under subsections (C), (D), (E),
    (K), (N), and (O) of section 161.001(b)(1) of the Family Code and asking the trial
    court to name the Department as Philip’s sole managing conservator.            In the
    meantime, the trial court named the Department as Philip’s temporary managing
    conservator. At some point, presumably after Father’s release from jail, Mother
    moved back to Oregon to be with Father, without ever having visited Philip.
    Trial on the Department’s petition seeking termination of the parental rights
    of Mother and Father began fifteen months after Mother left Philip in the care of
    Casa de Esperanza. At trial, the Department’s caseworker, Mitchelle Joseph,
    testified that the Department initiated its investigation when it received allegations
    that Mother had attempted to stab herself in the stomach while she was home with
    Philip. The caseworker testified that she believed it would be in the child’s best
    3
    interest to have Mother’s parental rights terminated because Mother had never
    contacted Philip and Mother had failed to provide him with financial support,
    failed to demonstrate the ability to provide him with a stable home, and had not
    addressed Mother’s own mental health and substance-abuse issues.
    The volunteer advocate (sometimes referred to as the “Texas Court
    Appointed Special Advocate” or the “CASA volunteer”2), Samuel Todd,
    recommended termination of Mother’s parental rights because Mother had shown
    no interest in working on her family service plan. According to Todd, Philip was
    thriving in a loving foster home. Todd recommended that Philip remain with his
    foster parents.
    In closing argument, the Department urged the trial court to terminate
    Mother’s parental rights under subsections (N) (constructive abandonment) and
    (O) (failure to complete the court-ordered family service plan) of Family Code
    section 161.001(b)(1). The guardian ad litem agreed with the Department.
    The trial court terminated Mother’s parental rights based on findings that
    Mother had engaged in the conduct described in subsections (D), (E), (N), and (O)
    of Family Code section 161.001(b)(1) and based on the court’s finding that
    terminating Mother’s parental rights would be in Philip’s best interest. The trial
    court terminated Father’s parental rights under Family Code section 161.002
    providing for the termination of the rights of an alleged biological father.
    II. ISSUES AND ANALYSIS
    In her appellate brief, Mother concedes the sufficiency of the evidence to
    support the trial court’s findings as to constructive abandonment under subsection
    (N) and that termination of Mother’s parental rights is in Philip’s best interest, but
    2
    See Tex. Fam. Code Ann. § 107.031 (West, Westlaw through 2017 1st C.S.); In re K.M.L., 
    443 S.W.3d 101
    , 106 n.2 (Tex. 2014).
    4
    Mother nonetheless asks this court to review the sufficiency of the evidence to
    support the trial court’s findings under subsections (D) and (E) because of the
    collateral consequences of these findings. Mother relies on a line of cases in which
    this court has concluded that when asked to address findings under subsections (D)
    and (E), this court should do so even if a finding under another subsection supports
    the final termination order because of potential collateral consequences that a
    finding under subsection (D) or (E) might be used to support a finding under
    subsection (M) in a future action to terminate the appellant’s parental rights as to
    another child.3 See In re S.J.N., No. 14-18-00529-CV, 
    2018 WL 6494256
    , at *6
    (Tex. App.—Houston [14th Dist.] Dec. 11, 2018, pet. denied) (mem. op.). The
    parties have not cited, and research has not revealed, any case addressing whether
    this review of a (D) or (E) finding is available if the appellant did not challenge
    another finding under Family Code section 161.001(b)(1) and the trial court’s best-
    interest-of-the-child finding. Thus, this case presents an issue of apparent first
    impression.
    Mother contends the evidence is insufficient to support the termination of
    her parental rights under (D) and (E). In response, the Department argues that
    because Mother has conceded the (N) ground and the trial court’s best-interest
    determination, a review of the (D) or (E) ground would result in an advisory
    3
    The court may order termination of the parent-child relationship if the court finds by clear and
    convincing evidence:
    (1) that the parent has:
    ....
    (M) had his or her parent-child relationship terminated with respect to another
    child based on a finding that the parent's conduct was in violation of Paragraph
    (D) or (E) or substantially equivalent provisions of the law of another state[.]
    Tex. Fam. Code Ann. § 161.001(b)(1) (West, Westlaw through 2017 1st C.S.).
    5
    opinion. See Valley Baptist Med. Ctr. v. Gonzalez, 
    33 S.W.3d 821
    , 822 (Tex.
    2000). Under the Supreme Court of Texas’s interpretation of the Texas
    Constitution, Texas courts have no jurisdiction to issue advisory opinions. See,
    e.g., Cadena Com. USA Corp. v. Texas Alco. Bev. Comm’n, 
    518 S.W.3d 318
    , 336
    (Tex. 2017) (citing Tex. Const. art. IV, §§ 1, 22); Valley Baptist Med. Ctr. v.
    
    Gonzalez, 33 S.W.3d at 822
    (citing Tex. Const. art. II, § 1); Morrow v. Corbin, 
    62 S.W.2d 641
    , 645–46 (Tex. 1933) (Tex. Const. art. V, §§ 3, 6). Alternatively, the
    Department argues that the record contains sufficient evidence to support the trial
    court’s findings on the (D) and (E) grounds.
    A.     The Effect of the Supreme Court of Texas’s Opinion in In re N.G.
    On the heels of oral argument in today’s case, the Supreme Court of Texas
    issued its opinion in In re N.G. See No. 18-0508, —S.W.3d—,—, 
    2019 WL 2147263
    , at *4 (Tex. May 17, 2019) (per curiam). The N.G. court applied the
    factors the Supreme Court of the United States used in Santosky v. Kramer and the
    Supreme Court of Texas used in In re J.F.C. See Santosky v. Kramer, 
    455 U.S. 745
    , 759–68, 
    102 S. Ct. 1388
    , 1398–1402, 
    71 L. Ed. 2d 599
    (1982); In re J.F.C.,
    
    96 S.W.3d 256
    , 273–274 (Tex. 2002); In re N.G., 
    2019 WL 2147263
    , at *3–4.
    Balancing these factors, and considering that the risk of error would mean
    significant consequences for future parental rights, the N.G. court concluded that a
    parent’s fundamental liberty interest in the right to parent outweighs the state’s
    interest in deciding only what is necessary for final disposition of the appeal. In re
    N.G., 
    2019 WL 2147263
    , at *4. Therefore, the N.G. court decided that allowing
    (D) and (E) findings to go unreviewed on appeal when the parent has presented the
    issue to the appellate court violates the parent’s due-process and due-course-of-law
    rights. See 
    id. The N.G.
    court held that the court of appeals violated the mother’s due-
    process and due-course-of-law rights by failing to review the trial court’s findings
    6
    under (D) and (E) when the appellant/mother had presented the issue. 
    Id. The N.G.
    court also concluded that due process and due course of law require an
    appellate court to detail its analysis as to why a parent’s challenge to a finding
    under (D) or (E) lacks merit. See 
    id. at *3–4.
    In another case the high court
    decided on the same day the court characterized the N.G. opinion as standing for
    the proposition that “due process requires an appellate court to review and detail its
    analysis as to termination of parental rights under [(D) or (E)] when challenged on
    appeal.” In re Z.M.M., No. 18-0734, —S.W.3d—,—, 
    2019 WL 2147266
    , at *2
    (Tex. May 17, 2019) (per curiam).
    In In re N.G. the trial court terminated the mother’s rights based on its
    findings under subsections (D), (E), and (O) and its best-interest finding. See In re
    N.G., 
    2019 WL 2147263
    , at *1. The mother appealed and challenged each of these
    findings, unlike Mother in today’s case, who does not challenge the (N) finding or
    the best-interest finding. See 
    id. The court
    of appeals in In re N.G. failed to
    address the findings under (D) or (E) because the court of appeals rejected the
    mother’s challenge to the (O) and best-interest findings. See 
    id. The court
    of
    appeals did not address the various court-of-appeals cases requiring review of
    findings under (D) and (E) on nonconstitutional grounds, nor did the court of
    appeals address whether constitutional due process or due course of law requires
    this review. See In re N.G., No. 05-17-01255-CV, 
    2018 WL 1835697
    , at *4 (Tex.
    App.—Dallas Apr. 18, 2018) (mem. op.), rev’d, 
    2019 WL 2147263
    , at *6 (Tex.
    May 17, 2019). It appears that the appellant/mother did not raise either of these
    points in the court of appeals. See In re N.G., 
    2019 WL 2147263
    , at *1; In re N.G.,
    
    2018 WL 1835697
    , at *4. In In re N.G. the supreme court did not address whether
    the court of appeals was required to review the sufficiency of the evidence to
    support the trial court’s findings under (D) and (E) based on nonconstitutional
    7
    grounds. See In re N.G., 
    2019 WL 2147263
    , at *1–4. The mother in In re N.G.
    argued in the supreme court that the Fourteenth Amendment’s Due Process Clause
    and the Texas Constitution’s Due Course of Law provision required the court of
    appeals to review the trial court’s findings under (D) and (E). See 
    id. at *2.
    In
    today’s case, Mother has not asserted these constitutional arguments.
    Because of these differences between today’s case and In re N.G., today’s
    case does not fall within the scope of the In re N.G. court’s holding. See 
    id. at *1–
    4. Nonetheless, the N.G. court made deliberate statements for future guidance in
    the conduct of litigation. Without determining whether nonconstitutional law
    required review of the trial court’s findings under (D) and (E), the N.G. court
    concluded that (1) allowing (D) and (E) findings to go unreviewed on appeal when
    the parent has presented the issue to the appellate court violates the parent’s due-
    process and due-course-of-law rights and (2) due process and due course of law
    require an appellate court to detail its analysis as to why a parent’s challenge to a
    finding under (D) or (E) lacks merit. In re N.G., 
    2019 WL 2147263
    , at *3–4.
    Although today’s case does not fall within the scope of the N.G. court’s holding,
    consistency with the high court’s recent pronouncements demands that, without
    first determining whether nonconstitutional law requires review of the trial court’s
    (D) and (E) findings, we determine whether Mother’s challenge to the (D) and (E)
    findings has merit and detail our analysis, even though another finding listed in the
    Final Order as a ground for termination provides a proper basis for the predicate
    act required under section 161.001(b)(1) and even though Mother does not
    challenge the trial court’s best-interest-of-the-child finding. See In re N.G., 
    2019 WL 2147263
    , at *3–4.
    B.     The Advisory-Opinion Argument
    The Department argues that because Mother has conceded one predicate
    ground and the trial court’s best-interest determination, any review of the (D) or
    8
    (E) grounds would result in an advisory opinion. The parties’ arguments also raise
    the issue as to whether an appellate remedy exists if the evidence is insufficient to
    support the (D) and (E) findings, given that this court must affirm the termination
    of Mother’s parental rights because she does not challenge the (N) or the best-
    interest finding. Neither the N.G. court nor the Z.M.M. court addressed these
    issues. See In re N.G., 
    2019 WL 2147263
    , at *1–4; In re Z.M.M., 
    2019 WL 2147266
    , at *1–2. We must do so to dispose of today’s appeal.
    A trial court generally must file findings of fact separately rather than recite
    them in the trial court’s judgment. See Tex. R. Civ. P. 299a; In re A.A.M., No. 14-
    05-00740-CV, 
    2007 WL 1558701
    , at *3, n.3 (Tex. App.—Houston [14th Dist.]
    May 31, 2007, no pet.) (mem. op.). But, Texas Rule of Civil Procedure 306,
    entitled “Recitation of Judgment,” requires that the trial court state in its final
    termination order the specific grounds for termination. See Tex. R. Civ. P. 306. In
    today’s case, the trial court recited in its Final Order that the grounds for
    termination were the trial court’s findings by clear and convincing evidence that
    Mother engaged in the conduct described in subsections (D), (E), (N), and (O) of
    section 161.001(b)(1) and that termination of Mother’s parental rights was in
    Philip’s best interest. See Tex. Fam. Code § 161.001(b); Tex. R. Civ. P. 306.
    Because trial courts must recite the specific grounds for termination in their final
    termination orders, parties properly may assert appellate complaints against these
    grounds, and an appellate court has the power to grant appropriate appellate relief
    if, for example, the appellate court concludes that the trial evidence is legally
    insufficient to support a finding that was a ground for termination of the
    appellant’s parental rights.4 See Tex. Fam. Code § 161.001(b); Tex. R. Civ. P.
    4
    If the trial evidence is legally insufficient to support all of the findings under section
    161.001(b)(1) or the best-interest finding, the appellate court could reverse the final termination
    order and render judgment denying termination. Tex. R. App. P. 43.2(c). If the trial evidence is
    9
    306; In re A.A.M., 
    2007 WL 1558701
    , at *3, n.3; In re C.M.C., 
    554 S.W.3d 164
    ,
    173 (Tex. App.—Beaumont 2018, no pet.). Under this reasoning, in her second
    issue, Mother challenges part of the Final Order — the findings under (D) and (E).
    Because this court has the power to delete these grounds from the trial court’s
    Final Order, the issue of whether the evidence suffices to support these findings is
    not moot but ripe for resolution. Likewise, an opinion addressing this issue would
    not be an advisory opinion.
    C.      The Effectiveness of the Available Appellate Remedies in a Future
    Termination Case Based on Subsection (M)
    In its opinion in In re N.G. the Supreme Court of Texas necessarily
    concluded that courts of appeals have an appellate remedy if the trial court
    reversibly erred in making findings under subsections (D) and (E) which became
    specific grounds for termination and that this remedy would prevent these findings
    from being used under subsection (M) in a future termination proceeding. See In
    re N.G., 
    2019 WL 2147263
    , at *3–4. But, the high court did not explain why this
    is so. One rationale finds roots in statutory construction.
    The Department may prove a predicate act under subsection (M) by showing
    that “the parent has . . . had his or her parent-child relationship terminated with
    respect to another child based on a finding that the parent’s conduct was in
    violation of subsection (D) or (E) or substantially equivalent provisions of the law
    of another state.” Tex. Fam. Code § 161.001(b)(1)(M). One reasonable
    factually insufficient to support all of the findings under section 161.001(b)(1) or the best-
    interest finding, the court of appeals could reverse the final termination order and remand for a
    new trial. Tex. R. App. P. 43.2(d). If the trial evidence is legally insufficient to support the
    findings under (D) and (E) but is legally sufficient to support a finding under another subsection
    of section 161.001(b)(1) and the best-interest finding, the appellate court could either (1) modify
    the trial court’s final order to delete the (D) and (E) findings and affirm it as modified or (2)
    reverse the trial court’s final order in part and render the judgment that the trial court should have
    rendered. Tex. R. App. P. 43.2(b), (c).
    10
    interpretation of this provision is that the Department must prove that a trial court
    signed a final order terminating the parent’s parent-child relationship as to another
    child based on a finding that the parent’s conduct violated (1) subsection (D) or
    subsection (E) or (2) substantially equivalent provisions of the law of another state,
    without any requirement that the Department prove (1) the final termination order
    is final by appeal and (2) no court has deleted the finding or reversed or set aside
    the final order. See In re A.F.G., No. 14-17-00440-CV, 
    2017 WL 5506026
    , at *6
    (Tex. App.—Houston [14th Dist.] Nov. 16, 2017, pet. denied) (mem. op.); In re
    A.C., 
    394 S.W.3d 633
    , 640–41 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
    Another reasonable interpretation of subsection (M)’s text is that the Department
    must prove that a trial court signed a final order terminating the parent’s parent-
    child relationship as to another child based on a finding that the parent’s conduct
    (1) violated subsection (D) or subsection (E) or (2) substantially equivalent
    provisions of the law of another state, and also that (1) the final termination order
    is final by appeal and (2) no court has deleted the finding or reversed or set aside
    the final order.
    In interpreting a statute, if one reasonable interpretation raises a serious
    doubt as to the constitutionality of the statute and another reasonable interpretation
    does not, we are to adopt the latter interpretation. See Whitman v. Am. Trucking
    Assocs., 
    531 U.S. 457
    , 471, 
    121 S. Ct. 903
    , 911, 
    149 L. Ed. 2d 1
    (2001); FSLIC v.
    Glen Ridge I Condominiums, Ltd., 
    750 S.W.2d 757
    , 759 (Tex. 1988); Trustees of
    Indep. Sch. Dist. of Cleburne v. Johnson, 
    52 S.W.2d 71
    , 72 (Tex. 1932).
    Interpreting subsection (M) to allow the Department to prove a predicate act based
    on a termination finding as to another child when a court has deleted the finding or
    reversed the final order or when a court in a pending appeal might delete the
    finding or reverse the final order would raise a serious doubt as to the
    11
    constitutionality of subsection (M). Therefore, we interpret subsection (M) to
    require the Department to prove that a trial court had signed a final order
    terminating the parent’s parent-child relationship as to another child based on a
    finding that the parent’s conduct violated (1) subsection (D) or subsection (E) or
    (2) a substantially equivalent provisions of another state’s law, and also that (1) the
    final termination order is final by appeal and (2) no court has deleted the finding or
    reversed or set aside the final order. See 
    Whitman, 531 U.S. at 471
    , 121 S. Ct. at
    911; Glen Ridge I Condominiums, 
    Ltd., 750 S.W.2d at 759
    ; Trustees of Indep. Sch.
    Dist. of 
    Cleburne, 52 S.W.2d at 72
    . This interpretation of subsection (M) differs
    from that of courts that have concluded that a certified copy of a prior final
    termination order as to another child based on (D) or (E) is sufficient evidence to
    support an (M) finding. See In re A.F.G., 
    2017 WL 5506026
    , at *6; In re 
    A.C., 394 S.W.3d at 640
    –41. Under today’s interpretation of subsection (M), if this court
    were to find reversible error because the evidence is legally insufficient to support
    the (D) and (E) findings in the Final Order and this court rendered judgment under
    Texas Rule of Appellate Procedure 43.2(b) or (c), our decision would have an
    impact on Mother’s rights because it would prevent the Department from using the
    Final Order to prove a predicate act under subsection (M) in a future termination
    case as to another child of Mother.
    The Texas Legislature has mandated that “[a]n appeal in a suit in which
    termination of the parent-child relationship is ordered shall be given precedence
    over other civil cases by the appellate courts, shall be accelerated, and shall follow
    the procedures for an accelerated appeal under the Texas Rules of Appellate
    Procedure.” Tex. Fam. Code Ann. § 109.002(a–1) (West, Westlaw through 2017
    1st C.S.). Appellate courts are to dispose of these appeals “with the least possible
    delay.” Tex. Fam. Code Ann. § 263.405 (West, Westlaw through 2017 1st C.S.).
    12
    In most situations, remedies other than a direct appeal from the final termination
    order will not be available for a party complaining that the trial evidence is
    insufficient to support the trial court’s (D) or (E) findings. Notwithstanding Texas
    Rule of Civil Procedure 329, the Texas Legislature requires that in most scenarios5
    one whose parental rights have been terminated may not assert a direct or collateral
    attack on the final termination order after the sixth month following the date the
    trial court signed the order. Tex. Fam. Code Ann. § 161.211(a),(b) (West, Westlaw
    through 2017 1st C.S.). A restricted appeal is available only if the one whose
    parental rights were terminated (1) did not participate—either in person or through
    counsel—in the hearing that resulted in the final order and (2) did not timely file a
    postjudgment motion or request for findings of fact and conclusions of law, or a
    notice of appeal within the time permitted by Texas Rule of Appellate Procedure
    26.1(c). See Tex R. App. P. 30. Even if one seeks equitable-bill-of-review relief
    within six months of the final termination order, that relief is available only in
    limited circumstances. See Maree v. Zuniga, No. 14-17-00210-CV, —S.W.3d—,
    —, 
    2019 WL 2000464
    , at *3–7 (Tex. App.—Houston [14th Dist.] May 7, 2019, no
    pet. h.).
    A direct appeal from the final termination order under Family Code section
    109.002(a-1) likely presents the only opportunity for review of the trial court’s
    findings under subsections (D) and (E). See In re N.G., 
    2019 WL 2147263
    , at *3.
    In addition, if a party does not challenge these findings and waits to see if the
    Department seeks to use these findings against the party in a future termination
    5
    This restriction applies to a person whose parental rights have been terminated if (1) the person
    was personally served with citation, (2) the person was served by citation by publication, (3) the
    person executed an affidavit of relinquishment of parental rights, (4) the person executed an
    affidavit of waiver of interest in a child, or (5) the person’s rights have been terminated under
    Family Code section 161.002(b). Tex. Fam. Code Ann. § 161.211(a),(b) (West, Westlaw
    through 2017 1st C.S.).
    13
    case as to another child, no remedy likely will be available because, in most
    scenarios, one whose parental rights have been terminated may not assert a direct
    or collateral attack against the final termination order more than six months after
    the date on which the trial court signed the order. Tex. Fam. Code Ann. §
    161.211(a),(b). In those cases, once that period expires, Texas statutes do not
    allow a party to challenge the (D) and (E) findings in the final order in the future if
    the Department seeks to terminate parental rights as to another child under
    subsection (M).
    In this appeal, Mother asks this court to review the sufficiency of the
    evidence to support the trial court’s findings under (D) and (E). If Mother were to
    succeed in this challenge, this court could modify the trial court’s Final Order by
    deleting the grounds for termination based on the (D) and (E) findings, and affirm
    the Final Order as modified. See In re 
    C.M.C., 554 S.W.3d at 173
    ; Tex. R. App. P.
    43.2(b). This appellate remedy would preclude the Department from proceeding
    under subsection (M) in a future case seeking termination of Mother’s parental
    rights as to another child.
    D.     Review of the Subsection (E) Finding
    Standards of Review
    Due to the severity and permanency of terminating the parental relationship,
    clear and convincing evidence must support such an order. See Tex. Fam. Code
    Ann. § 161.001; In re 
    J.F.C., 96 S.W.3d at 265
    –66. “Clear and convincing
    evidence” means “the measure or degree of proof that will produce in the mind of
    the trier of fact a firm belief or conviction as to the truth of the allegations sought
    to be established.” Tex. Fam. Code Ann. § 101.007; In re 
    J.F.C., 96 S.W.3d at 264
    .
    This heightened burden of proof results in a “correspondingly searching standard
    of appellate review.” In re A.C., 
    560 S.W.3d 624
    , 630 (Tex. 2018); see In re
    14
    C.M.C., 
    273 S.W.3d 862
    , 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
    In reviewing the legal sufficiency of the evidence in a parental-termination
    case, we must consider all evidence in the light most favorable to the finding to
    determine whether a reasonable factfinder could have formed a firm belief or
    conviction that its finding was true. In re J.O.A., 
    283 S.W.3d 336
    , 344 (Tex.
    2009). The factfinder is the sole arbiter of the credibility and demeanor of each
    witness. 
    Id. at 346.
    We assume that the factfinder resolved disputed facts in favor
    of its finding if a reasonable factfinder could do so, and we disregard all evidence
    that a reasonable factfinder could have disbelieved. 
    Id. at 344.
    Yet, this does not
    mean that we must disregard all evidence that does not support the finding. 
    Id. Because of
    the heightened standard, we also must be mindful of any undisputed
    evidence contrary to the finding and consider that evidence in our analysis. 
    Id. The evidence
    is legally insufficient to support the challenged finding if, after
    conducting this review of the record evidence, we determine that no reasonable
    factfinder could form a firm belief or conviction that the matter that must be
    proven is true. 
    Id. at 344–45.
          In reviewing the factual sufficiency of the evidence under the clear-and-
    convincing standard, we consider and weigh disputed evidence contrary to the
    finding against all the evidence favoring the finding. In re 
    A.C., 560 S.W.3d at 631
    ; see In re 
    J.O.A., 283 S.W.3d at 345
    . “If, in light of the entire record, the
    disputed evidence that a reasonable factfinder could not have credited in favor of
    the finding is so significant that a factfinder could not reasonably have formed a
    firm belief or conviction, then the evidence is factually insufficient.” In re 
    J.O.A., 283 S.W.3d at 345
    . We give due deference to the factfinder’s findings and we
    cannot substitute our own judgment for that of the factfinder. In re H.R.M., 
    209 S.W.3d 105
    , 108 (Tex. 2006). And, in making this determination, we must
    15
    undertake “an exacting review of the entire record with a healthy regard for the
    constitutional interests at stake.” In re A.B., 
    437 S.W.3d 498
    , 503 (Tex. 2014)
    (quoting In re C.H., 
    89 S.W.3d 17
    , 25 (Tex. 2002)) (internal quotations omitted).
    Nonetheless, our review must not be so rigorous that the only factfindings that
    could withstand review are those established beyond a reasonable doubt. In re
    
    H.R.M., 209 S.W.3d at 108
    .
    Sufficiency of the Evidence Supporting the Subsection (E) Finding
    In her second issue, Mother asserts that the evidence is legally and factually
    insufficient to support termination under (D) and (E). We begin by addressing
    Mother’s arguments as to the (E) finding, mindful of the requirement that Mother’s
    appeal be meaningful and the N.G. court’s directive that we detail our analysis6 of
    the sufficiency of the evidence supporting an (E) finding. See In re N.G., 
    2019 WL 2147263
    , at *3–4.
    By making the (E) finding, the trial court found that Mother engaged in
    conduct or knowingly placed Philip with persons who engaged in conduct which
    endangered Philip’s physical or emotional well-being. Tex. Fam. Code Ann. §§
    161.001(b)(1)(E). A finding of endangerment under (E) requires evidence that the
    endangerment resulted from the parent’s conduct, including acts, omissions, or
    failures to act. In re S.R., 
    452 S.W.3d 351
    , 361 (Tex. App.—Houston [14th Dist.]
    2014, pet. denied). Termination under (E) must be based on more than a single act
    or omission; the statute requires a voluntary, deliberate, and conscious course of
    conduct by the parent. 
    Id. A court
    properly may consider actions and inactions
    6
    The N.G. court did not abrogate or disapprove of the decision in In re A.B., 
    437 S.W.3d 498
    (Tex. 2014), nor did the N.G. court conclude that due process and due course of law mandate that
    an appellate court detail all of the relevant evidence as to why a parent’s challenge to a finding
    under (D) or (E) lacks merit. See In re N.G., 
    2019 WL 2147263
    , at *3–4; In re 
    A.B., 437 S.W.3d at 502
    –06.
    16
    occurring both before and after a child’s birth to establish a course of conduct. In
    re A.L.H., 
    515 S.W.3d 60
    , 91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
    While endangerment often involves physical endangerment, the statute does
    not require that conduct be directed at a child or that the child actually suffer
    injury; rather, the specific danger to the child’s well-being may be inferred from
    the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 
    727 S.W.2d 531
    , 533 (Tex. 1987). A parent’s conduct that subjects a child to a life of
    uncertainty and instability endangers the child’s physical and emotional well-
    being. In re F.E.N., 
    542 S.W.3d 752
    , 764 (Tex. App.—Houston [14th Dist.] 2018,
    no pet.).
    Mother was living with Father in Oregon when she gave birth to Philip.
    Within four months, Father physically abused Mother while he was intoxicated.
    Mother informed a Department investigator that Father had been “stressed out”
    because the family was homeless and living in a facility for homeless families.
    After Father’s domestic abuse, Mother fled to Texas with four-month old Philip.
    Mother moved in with her grandparents. That meant Mother would be residing in
    the same home as her older brother, who had sexually molested her as a child.
    Mother told investigators that her brother completely ignored them while she and
    Philip were living in the same home and that Philip was never left alone in the
    brother’s company.
    While Mother and Philip were living at Mother’s grandparents’ home,
    Mother engaged in self-harm. Suicidal ideations plagued Mother, and she may
    have attempted to stab herself. Mother had been prescribed medication to assuage
    the symptoms of her mental-health diagnoses, but failed to take advantage of these
    remedies. Mother admitted to a history of drug abuse. She told investigators that
    she had used cocaine, methamphetamine, marijuana, and ecstasy. Mother said she
    17
    stopped using drugs after she met Father because he gave her a reason to live.
    Mother indicated she was willing to take a drug test, but never followed up on her
    scheduled appointment.
    At all times during the investigation, Philip was in good health, and he was
    current on his immunizations. Mother and Philip appeared to be well-bonded.
    During the Department investigator’s conversation with Mother, Mother
    denied attempting to stab herself in the stomach, because, she said, “that would be
    stupid.” She did, however, admit that she had entertained thoughts of suicide
    because she felt overwhelmed. Mother told the investigator that she had never had
    thoughts of harming Philip, that she only wanted the best for him, and that she
    loves him. Mother further stated that she needed help and could not care for Philip
    at that time.
    During the course of the investigation, Mother became emotional when
    speaking to the Department over the telephone about Philip. Yet, Mother told the
    Department’s caseworker that she would not be returning to Houston without
    Father and that she was looking for a job in Oregon.
    The trial court reasonably could have considered Mother’s mental state as
    endangering Philip’s well-being. In re J.I.T.P., 
    99 S.W.3d 841
    , 845 (Tex. App.—
    Houston [14th Dist.] 2003, no pet.) (considering mother’s schizophrenia and
    resulting suicidal thoughts, hospitalizations, and violence). Mother allowed her
    mental-health issues to go unaddressed, so much so that she admitted to no longer
    being able to care for Philip. “When a parent’s mental state allows [the parent] to
    engage in conduct that endangers the physical or emotional well-being of the child,
    that conduct has bearing on the advisability of terminating the parent’s rights.” Id
    (quoting In re C.D., 
    664 S.W.2d 851
    , 853 (Tex. App.—Fort Worth 1984, no writ)).
    18
    Moreover, Mother continued to communicate with Father while he was
    incarcerated in Oregon. During that time Father threatened to end his relationship
    with Mother. Mother blames her self-destructive behavior on Father’s threats to
    leave    her.   Despite   the   physical   abuse   and   emotionally   destabilizing
    communications with Father, Mother insisted on continuing her relationship with
    him and ultimately decided to leave Texas and move back to Oregon to be with
    Father and to leave Philip in the care of Casa de Esperanza.
    Evidence of domestic violence may be considered as evidence of
    endangerment under subsection (E). In re K-A.B.M., 
    551 S.W.3d 275
    , 286 (Tex.
    App.—El Paso 2018, no pet.). A parent’s abusive or violent conduct can produce a
    home environment that endangers a child’s well-being. In re J.I.T.P., 
    99 S.W.3d 841
    , 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Domestic violence,
    want of self-control, and propensity for violence may be considered as evidence of
    endangerment. Id.; see In re M.R., 
    243 S.W.3d 807
    , 819 (Tex. App.—Fort Worth
    2007, no pet.) (considering the fact that mother “exposed her children to domestic
    violence,” including incident where mother was “smacked” in front of child, as
    evidence of endangerment under subsection (E)); see also Sylvia M. v. Dallas
    County Welfare Unit, 
    771 S.W.2d 198
    , 204 (Tex. App.—Dallas 1989, no writ)
    (considering “volatile and chaotic” marriage altercation during pregnancy and
    mother’s repeated reconciliation with abusive spouse). Violent conduct by a parent
    toward the other parent may produce an environment that endangers the physical
    or emotional well-being of a child. In re J.T.G., 
    121 S.W.3d 117
    , 125 (Tex. App.—
    Fort Worth 2003, no pet.).
    Mother’s untreated mental-health issues gave way to behavior that presented
    specific danger to Philip’s physical and emotional well-being. Mother’s choice to
    continue her relationship with a man who had physically assaulted her and caused
    19
    her extreme emotional disturbance subjects Philip to a life of uncertainty and
    instability that further endangers his physical and emotional well-being.
    Considering all the evidence in the light most favorable to the (E) finding,
    assuming the factfinder resolved disputed facts in favor of its finding if a
    reasonable factfinder could do so, disregarding all evidence that a reasonable
    factfinder could have disbelieved, being mindful of any undisputed evidence
    contrary to the finding, and considering that evidence in our analysis, we conclude
    that a reasonable factfinder could form a firm belief or conviction that Mother
    engaged in conduct or knowingly placed Philip with persons who engaged in
    conduct that endangered Philip’s physical or emotional well-being. See Tex. Fam.
    Code Ann. §§ 161.001(b)(1)(E); In re 
    J.I.T.P. 99 S.W.3d at 845
    (concluding that a
    mother’s mental state in addition to domestic violence between the parents
    supported a finding of endangerment).
    As noted above, in reviewing the factual sufficiency of the evidence we
    consider and weigh disputed evidence contrary to the finding against all the
    evidence favoring the finding. In re 
    A.C., 560 S.W.3d at 631
    . Evidence at trial
    showed that Mother acted protectively towards Philip by admitting she needed help
    and relinquishing his care to Casa de Esperanza. Mother also cried on the
    telephone when asking about Philip and steadfastly maintained that she loves him
    and wants the best for him. Additionally, Mother disputed the narrative that she
    attempted to stab herself in the stomach in front of Philip. Philip was in good
    health and current on his immunizations when he and Mother arrived at the
    hospital before the Department became involved. While this evidence may weigh
    against a finding under (E), substantial evidence weighs in favor of an (E) finding.
    That evidence includes proof of Mother’s decision to move Philip into a home with
    someone who molested her as a child, Mother’s failure to address her known
    20
    mental-health problems, Mother’s continued interactions with Father when she
    knew encounters with him exacerbated her already precarious mental-health status,
    Mother’s disputed self-harming behavior, and Mother’s decision to remain in a
    relationship in which there was a history of domestic abuse.
    Considering and weighing the disputed evidence contrary to the finding
    against all the evidence favoring the finding, giving due deference to the trial
    court’s findings, and after an exacting review of the entire record with a healthy
    regard for the constitutional interests at stake, we conclude that in light of the
    entire record, the disputed evidence that a reasonable factfinder could not have
    credited in favor of the finding is not so significant that a factfinder could not
    reasonably have formed a firm belief or conviction that Mother engaged in the
    conduct described in subsection (E). See In re 
    A.B., 437 S.W.3d at 503
    ; In re
    
    J.O.A., 283 S.W.3d at 345
    . Thus, the trial evidence stands factually sufficient to
    support the trial court’s (E) finding.
    Because we conclude the evidence is legally and factually sufficient to
    support the trial court’s finding under section 161.001(b)(1)(E), we do not address
    Mother’s arguments that the evidence is legally and factually insufficient to
    support the trial court’s finding under subsection (D). See In re T.M.T., No. 14-18-
    00442-CV, 
    2018 WL 6053667
    , at *11 (Tex. App.—Houston [14th Dist.] Nov. 20,
    2018, no pet.) (mem. op.).
    III. CONCLUSION
    We overrule Mother’s second issue to the extent she asserts the evidence is
    legally and factually insufficient to support the subsection (E) finding, and we need
    not address the remainder of this issue in which she asserts the evidence is legally
    21
    and factually insufficient to support the subsection (D) finding.7
    We affirm the trial court’s Final Order.
    /s/     Kem Thompson Frost
    Chief Justice
    Panel consists of Chief Justice Frost and Justices Spain and Poissant (Frost, C.J.,
    concurring).
    7
    Mother has requested on appeal that we review her challenge to the (D) and (E) findings even
    though Mother has not challenged the (N) and best-interest findings. Thus, in today’s case, we
    do not address whether the In re N.G. opinion or the In re Z.M.M. opinion requires appellate
    courts to review (D) and (E) findings when the appellant does not ask the court to review these
    findings because of the collateral consequences and even if another finding provides a proper
    basis for the predicate act required under section 161.001(b)(1). Nor do we address whether a
    failure to challenge (D) and (E) findings on appeal results in a waiver of the review provided in
    In re N.G. or whether this review only can be affirmatively waived.
    22