in the Interest of J.B., a Child ( 2023 )


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  •              In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-22-00384-CV
    ___________________________
    IN THE INTEREST OF J.B., A CHILD
    On Appeal from the 325th District Court
    Tarrant County, Texas
    Trial Court No. 325-702195-21
    Before Sudderth, C.J.; Kerr and Walker, JJ.
    Memorandum Opinion by Chief Justice Sudderth
    MEMORANDUM OPINION
    I. Introduction
    J.B.1 tested positive for cannabinoids and amphetamine when he was born
    and—according to an investigator for the Department of Family and Protective
    Services (DFPS) and to statements in the medical records from J.B.’s birth—Mother
    claimed that Appellant Father had made her use drugs while pregnant. However,
    Father had been incarcerated in the Tarrant County Jail at J.B.’s June 2021 birth and
    for several months before that.
    DFPS filed a conservatorship-and-termination petition, removed the child
    before Mother left the hospital, placed the child into foster care, and developed
    service plans for both parents, but Father was unable to participate in the services
    while incarcerated. Neither parent testified during trial, and the trial court terminated
    Father’s parental rights to J.B. based on the child’s best interest and the grounds of
    endangerment, constructive abandonment, and failure to follow the court’s order
    specifying the actions necessary for him to obtain J.B.’s return. See 
    Tex. Fam. Code Ann. § 161.001
    (b)(1)(D), (E), (N), (O), (2).2
    1
    To protect J.B.’s identity, we use aliases or initials to refer to him, his parents,
    and others who may be connected to the case. See 
    Tex. Fam. Code Ann. § 109.002
    (d);
    Tex. R. App. P. 9.8(b)(2).
    2
    The trial court also terminated Mother’s parental rights, but Mother did not
    appeal.
    2
    In four issues, Father appeals, arguing that the evidence is legally and factually
    insufficient to support the trial court’s endangering-conduct ground and factually
    insufficient to support the trial court’s endangering-environment, failure-to-follow-
    court-order, and constructive-abandonment findings. Because the evidence is legally
    and factually sufficient to support the endangering-conduct ground, we affirm the trial
    court’s judgment without reaching Father’s remaining issues. See Tex. R. App. P. 47.1.
    II. Background
    A. First day of trial: April 27, 20223
    Trial began with neither parent in attendance, although both were represented
    by counsel.
    1. J.B.’s medical records
    The medical records from J.B.’s birth were not discussed in depth during the
    trial, but because they were admitted into evidence, we have reviewed them.4 The
    records contain the following statements made by Mother to medical personnel about
    Father:
    3
    Trial occurred over three days in three separate months but testimony was
    taken during only two of those days. Because the portion of trial between April 27
    and September 2 has no bearing on this appeal, we do not include it.
    4
    The trial court admitted the medical records over Father’s objections that he
    had not seen the records and that they might contain hearsay. Father does not raise
    those objections on appeal.
    3
    • Father “was abusive[,] used drugs[,] and [had] forced [Mother] to do things that
    she did not want to do.”5
    • Mother called the police on Father and “that is why he [wa]s in jail.”
    • “[Father was] in jail due to assault on her,” and since she was 18, he had made her
    “‘do things [she] normally wouldn’t do[,]’” including using “zbars,[6] cocaine,
    [THC7], and methamphetamine.” Mother was 31 years old when J.B. was born.
    • Although Father was incarcerated, he was “helpful and supportive.”
    • Mother “had no prenatal care and state[d Father] was angry at her for getting
    pregnant and not having an abortion” and that it had been “two months since she
    talked to him.”
    • Mother had no supplies for the baby; Father “took it all back.”
    Mother’s medical records state that she suffers from schizoaffective disorder,
    bipolar type, as well as the following “Active Problem[s]”: diabetes; amphetamine,
    cocaine, and cannabis abuse; anxiety and depression; methamphetamine dependence;
    and posttraumatic stress disorder.     Other evidence at trial reflected that all of
    5
    Mother also told medical personnel that she had not used drugs in a year,
    which statement was contradicted by J.B.’s positive drug test results and her later
    admission that she had used methamphetamine two to five days before giving birth.
    6
    “Zbar” is a street name for the anti-anxiety prescription drug Xanax. Pawlak v.
    State, No. 13-10-00535-CR, 
    2012 WL 3612493
    , at *1 n.3 (Tex. App.—Corpus Christi–
    Edinburg Aug. 23, 2012) (mem. op., not designated for publication), vacated on other
    grounds, 
    420 S.W.3d 807
     (Tex. Crim. App. 2013); Hernandez v. State, No. 13-06-357-CR,
    
    2007 WL 2965527
    , at *2 n.3 (Tex. App.—Corpus Christi–Edinburg Oct. 11, 2007, no
    pet.) (mem. op., not designated for publication).
    7
    THC is an abbreviation for tetrahydrocannabinol, which is marijuana’s active
    ingredient. Harper v. State, 
    508 S.W.3d 461
    , 466 n.7 (Tex. App.—Fort Worth 2015,
    pet. ref’d).
    4
    Mother’s previous cases with DFPS had also involved drug use; four of her children
    lived with their maternal grandmother, and her parental rights to a fifth child had
    been terminated on endangerment grounds.
    2. DFPS investigator
    Tayla Choice, the DFPS investigator who met Mother at the hospital after J.B.
    tested positive for drugs, testified that Mother told her that Father made her use drugs
    and that if she refused to use methamphetamine, Father would beat her. Choice did
    not speak with Father or exchange any written communications with him but said that
    DFPS had made contact with him before J.B.’s removal.
    Choice said that Father provided some placement options but not to her. She
    called T.H.-B., one of Father’s adult children, whom Father had listed as a placement
    option, but received no response. She ran a background search on T.H.-B. and found
    nothing unfavorable that would prevent pursuing her as a placement. Nevertheless,
    Choice said that DFPS does not pursue a placement option who is not amenable to
    placement.
    Choice testified that at the end of her investigation, she and her supervisor
    determined that a removal was proper, and her disposition of the case was “reason to
    believe”8 for neglectful supervision by Mother. DFPS filed its original petition on
    June 24, 2021, and the trial court entered its emergency order on removal that day.
    8
    See 
    40 Tex. Admin. Code § 707.495
    (b) (Tex. Dep’t of Fam. & Protective
    Servs., How do we make dispositions after completing the investigation?) (listing the
    5
    3. Caseworker
    Joan Hall, an OCOK9 permanency specialist, testified that she had been the
    case’s only caseworker. As of April 27, 2022, Father had been incarcerated during the
    entire case, and Hall had visited Father in person twice: in November 2021 and April
    2022. She had also sent him five to six letters, but he told her that he did not receive
    them. When asked whether she had any reason to disbelieve Father’s claim that he
    had not received her letters, Hall replied, “Potentially.” She stated, “I have had other
    cases where sometimes the [letters] – I have mailed them and the inmates said that
    they didn’t receive them.”
    When asked how many children Father had told her that he had, Hall stated,
    “He approximated 13,” most of whom were minors.10             He denied having ever
    engaged in domestic violence and did not talk with Hall about other assaults, drug use,
    following dispositions: reason-to believe based on a preponderance of the evidence,
    ruled-out, unable to complete, unable-to-determine, and administrative closure).
    9
    OCOK (Our Community Our Kids) is a contractor that provides
    conservatorship services for DFPS. See In re A.G., No. 02-21-00297-CV, 
    2022 WL 488924
    , at *8 n.14 (Tex. App.—Fort Worth Feb. 17, 2022, pet. denied) (mem. op.).
    10
    When asked whether she knew if Father had been involved in the lives of any
    of his other children, Hall replied, “To my knowledge it’s been sporadic, his
    involvement,” but she agreed that she had no personal knowledge of his involvement
    in any of his other children’s lives. She had spoken with Father’s adult child R. about
    R.’s then-current relationship with Father but not about R.’s childhood: “She said that
    they talk.” Father’s other adult child, T.H.-B., told Hall that she did not believe that
    he was responsible “for what he’s been charged with currently.” T.H.-B. and Hall did
    not talk about T.H.-B.’s relationship with Father during her childhood. Hall testified
    that the first time she spoke with T.H.-B. was the week before the April trial began.
    6
    how long he had been in jail, or how many times he had been to jail.11 When Hall
    asked Father why—in April 2022—he was in jail, Father told her that he had never
    assaulted Mother and that “the fraudulent identities in his car were actually [Mother’s,]
    not his.”
    Father told Hall that Mother had mental-health issues and said that he was in
    jail on a misunderstanding. According to Father, his trial date on the pending charges
    was set for May 2022. Hall agreed that Father had been in jail for several months
    before J.B.’s birth and had never been around the infant. During cross-examination,
    when asked whether—because of his incarceration—it was impossible for Father to
    have ever put J.B. in danger, Hall replied, “Correct.” However, on redirect, Hall
    clarified that Father’s forcing Mother to use drugs while pregnant would have put J.B.
    in danger and that she did not know if Father had been incarcerated for the entirety of
    Mother’s pregnancy.
    Hall testified that DFPS had created a service plan in which Father was
    supposed to
    complete . . . batterer’s intervention classes, to complete a drug and
    alcohol assessment and follow all recommendations, to engage in
    random drug testing or comply with random drug testing, to engage [in]
    and complete individual counseling, to engage [in] and complete a
    FOCUS for Fathers[] class, [to] attend all visitation that was possible,
    11
    Hall testified that she had reviewed Father’s criminal history, and when asked
    “how many charges” he had accrued over the years, she replied, “[A]pproximately
    20.” Hall also stated that Father had a prior DFPS case, but she provided no details
    about the case or its outcome.
    7
    and [to] notify the department or OCOK if he was ever released from
    jail.[12]
    According to Hall, Father was also supposed to take a parenting class. The service
    plan also required that upon his release from incarceration, Father would “maintain
    safe, stable and appropriate housing with working utilities,” free from safety hazards,
    and that he would maintain stable and legal employment, demonstrating the ability to
    meet J.B.’s financial needs. The trial court entered an order making the service plan a
    court order, which included supervised visitation. The service plan listed the date by
    which Father was to achieve his permanency goals as June 27, 2022, which was the
    case’s original dismissal date.
    Hall noted that, as far as she knew, none of the services were available to
    Father in jail, and she characterized his participation in the case as “very limited due to
    hi[s] being incarcerated.”        Hall stated that Father had indicated a willingness to
    participate in the services if they were available, and she acknowledged that he had
    done everything service-plan-wise that he could while incarcerated. Hall said that to
    her knowledge, the jail did not perform any random drug testing, stating, “I don’t
    think they do that.” Hall also testified that it was uncommon for DFPS to arrange
    visits with incarcerated parents and that she had never seen it happen.
    12
    Father’s service plan required him to notify OCOK within 72 hours of being
    released from incarceration. On the trial’s third day, in September 2022, Hall testified
    that Father had contacted her “about three days” after his late June or early July 2022
    release.
    8
    Father did not send J.B., an infant, any letters, but he asked Hall for
    photographs of the child, and she told him that she would send some.13 He told Hall
    that he wanted to be involved in J.B.’s life and that he did not want his rights to be
    terminated. Father gave Hall potential placements for J.B. with two of his adult
    children—R. and T.H.-B.—but R. denied being able to be a placement, and T.H.-B.
    admitted that she was unable to care for J.B.’s medical needs14 and did not have
    appropriate options for child care. Hall also said that T.H.-B. “had a history of not
    being protective in other investigations,” but she did not elaborate on who had been
    investigated or why.
    Over Father’s objection, the trial court admitted into evidence a copy of
    Father’s indictment for his then-pending family-violence assault charge relating to
    Mother.15 The first count of the indictment alleged that on or about January 12, 2021,
    13
    Hall testified that she had mailed some photographs to Father but that he had
    said he did not receive them. Hall stated that she “had planned to go in” person to
    deliver some photographs to Father later in April, “after th[e] hearing.”
    14
    J.B. has a weak immune system and reactive airway disease (which, according
    to Hall, means that he will be diagnosed with asthma when older). He suffers from
    frequent ear infections, had to have breathing treatments, and had been hospitalized
    twice due to illness. He had been seen by a pulmonologist and an ear-nose-throat
    specialist, and at one point he saw a specialist about a kidney infection that
    subsequently cleared up.
    15
    Father’s counsel raised a Rule 403 objection to the indictment’s admission,
    complaining that its prejudice substantially exceeded its probative value because “it is
    nothing more than just an allegation.” Father does not complain about the trial
    court’s ruling on appeal.
    9
    Father had intentionally or knowingly caused bodily injury to Mother, a member of
    his family or household or with whom he had a dating relationship, by “impeding the
    normal breathing or circulation of the blood” by applying pressure to Mother’s throat
    or neck with his hand or hands.
    The second count of the indictment alleged that Father had pushed Mother,
    grabbed her, or struck her with his hand, squeezed her throat or neck with his hand or
    hands, scratched her with his hand, or kicked her with his foot. The indictment
    contained an enhancement alleging that Father had a 2005 conviction for family-
    violence assault and a habitual-offender notice reciting his prior felony convictions for
    unlawful possession of a firearm in 2014 and possession of cocaine (more than one
    but less than four grams) in 2005. Hall agreed that because J.B. was born in June and
    had not been born early, Mother would have been pregnant at the time of the January
    12, 2021 assault alleged in the indictment. Hall believed the indictment’s allegations
    and said, “Yes,” when asked whether she had based her belief on what “somebody
    else says . . . [Mother] told them.”
    Hall testified that she did not believe Father could meaningfully participate in
    J.B.’s life from prison and stated that he had not meaningfully participated in J.B.’s life
    since the case began. She stated that it was in J.B.’s best interest to terminate Father’s
    parental rights because he “has a significant history not only of violent crimes but also
    domestic violence and assaults against almost all of the mothers of his other
    children.” Hall believed that Father “would not be a safe caregiver for [J.B. because
    10
    e]ven if he were [to be] released . . . there would not be enough time in this case for
    him to be able to participate in services and address all of these concerning issues for
    him to safely care for [J.B.]” She did not elaborate on Father’s criminal history.
    Hall testified that DFPS’s plan was for J.B. to be adopted by his foster parents,
    who were safe, stable, and appropriate and met J.B.’s physical and emotional needs.16
    Hall testified that neither Mother nor Father had shown the ability to be safe and
    appropriate with J.B. or the ability to provide him with a safe and stable home and
    financial support.
    4. DFPS investigative supervisor
    Jessica Eastman, DFPS’s investigative supervisor on the case, testified that she
    met Father prior to J.B.’s removal and conversed with him about the allegations in the
    case regarding Mother’s drug use.       “[Father] stated that he had knowledge that
    [Mother] . . . had been using methamphetamine[] heavily [and] that he had had a
    discussion with her about stopping and the impact it could have on the child.”
    Eastman did not speak with him at that time about Mother’s allegations regarding his
    having forced her to use methamphetamine.          Eastman and Father discussed his
    criminal history, and he told her that he had been on parole or bond for a prior
    family-violence charge when he and Mother argued about her drug use, an argument
    16
    During the third day of trial, in September 2022, Hall added that J.B. was
    “doing really well” in foster care, was receiving ECI therapy, and had a surgical
    procedure to install tubes in his ears because of his frequent ear infections. He was
    still sick on a regular basis, but the ear infections had become less frequent.
    11
    that led to her calling the police and his arrest. He did not tell Eastman that he had
    choked Mother as alleged in the indictment, but that allegation concerned her because
    choking a pregnant woman can harm the fetus.
    Father gave Eastman the name of one of his adult daughters as a possible
    placement for J.B., but the adult daughter demanded DNA evidence of Father’s
    paternity first.17 Father told Eastman that the last time DFPS was involved in his life,
    three of his other children had been removed while he had been incarcerated.
    B. Last day of trial: September 2, 2022
    Before testimony resumed, Father’s counsel stated that he had filed a motion
    for continuance when Father was briefly out of jail, but he noted that Father had since
    been reconfined “for a circumstance that he was not involved in, and he expect[ed] to
    be released soon.” Father’s counsel asked for a continuance until Father could be
    released, and the trial court denied it.
    The trial court then admitted into evidence over Father’s Rule 403 objection18 a
    certified copy of a complaint alleging that on or about July 12, 2022, Father had
    intentionally or knowingly threatened bodily injury to L.B.19 and used or exhibited a
    The record does not contain Father’s DNA test, but in its December 9, 2021
    17
    order, the trial court determined that Father was J.B.’s biological father “as
    determined by DNA testing.”
    Father does not challenge this ruling on appeal.
    18
    Hall testified that L.B. was Father’s daughter’s boyfriend or ex-boyfriend.
    19
    12
    deadly weapon (a firearm) during the assault’s commission. The complaint also
    contained a habitual-offender notice regarding the same 2014 and 2005 convictions
    that were listed in the habitual-offender notice in the previously admitted indictment.
    Hall then testified that shortly after Father was released from jail at the end of
    June or in July—she did not recall the exact date—and before his confinement on the
    new charges, he called her, told her that he was staying with his sister, and gave her his
    sister’s address. She gave him the information to set up services and was told that
    Father had contacted one of the contractors to start his FOCUS class. However,
    Father had trouble contacting his probation officer, so Hall tried to contact the
    probation officer, without success. She stated that her understanding was that Father
    had been released on an ankle monitor, and she had tried to contact Father’s
    probation officer to find out the exact restrictions on Father’s movement. She agreed
    that it would be difficult for Father to move around freely on an ankle monitor
    without communication with his probation officer.
    Hall tried to send Father for a drug test but did not hear back from him, and
    she learned, after Father failed to attend the FOCUS class he had set up, that he “had
    been arrested again.” Father had been arrested before he was able to participate in
    any services. And Father also had no visitation with J.B. in the short time he was out
    of jail.
    Hall testified that Father had been back in jail since the end of July but that she
    had not been able to speak with him since his new arrest. She described the difficulty
    13
    she had experienced in making contact with him at the jail, stating, “They told me that
    I needed to go to a different building, and then when I went there the entrance was
    closed, and so I tried to come back another day but I didn’t have time.” At trial, she
    did not “remember offhand which building they pointed [her] toward.”
    Hall stated that Father had been out of jail for less than a month before
    returning on felony charges. Regarding Father’s more recent arrest, her understanding
    was that “there was a shooting involved at the apartment complex where he was
    staying at with his sister, and . . . . there’s the allegation that he shot at his daughter’s
    boyfriend or ex-boyfriend.” However, she did not know what evidence supported the
    State’s allegation that Father had fired a firearm.
    Hall testified that she believed Father had engaged in a continuing course of
    violent criminal conduct since the case started, that she had no reason to believe that
    course of conduct would stop, and that, in her opinion, it presented a danger to J.B.
    J.B.’s ad litem argued during closing that Father had a continuing course of
    conduct leading to a life of instability for J.B. and that it was in J.B.’s best interest to
    have a safe and stable home.
    III. Sufficiency
    Father’s four issues challenge the sufficiency of the evidence to support
    terminating his parental rights on grounds listed in Section 161.001(b)(1).20 DFPS was
    For a trial court to terminate a parent–child relationship, DFPS must prove
    20
    two elements by clear and convincing evidence: (1) that the parent’s actions satisfy
    14
    required to prove its grounds for termination by clear and convincing evidence. See
    
    Tex. Fam. Code Ann. § 161.001
    (b); Z.N., 602 S.W.3d at 545.21 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
    ; Z.N., 602 S.W.3d at 545.
    A. Standards of Review
    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 trial court’s finding
    to determine whether a reasonable factfinder could form a firm belief or conviction
    that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences,
    but they must be reasonable and logical. Id. 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,
    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 Z.N., 
    602 S.W.3d 541
    , 545 (Tex. 2020).
    21
    Due process demands the heightened standard of clear and convincing
    evidence because “[a] parental rights termination proceeding encumbers a value ‘far
    more precious than any property right.’” In re E.R., 
    385 S.W.3d 552
    , 555 (Tex. 2012)
    (quoting Santosky v. Kramer, 
    455 U.S. 745
    , 758–59, 
    102 S. Ct. 1388
    , 1397 (1982)); In re
    J.F.C., 
    96 S.W.3d 256
    , 263 (Tex. 2002); see also In re E.N.C., 
    384 S.W.3d 796
    , 802 (Tex.
    2012). The State must observe “fundamentally fair procedures” when it seeks to
    terminate a parent’s rights. E.R., 385 S.W.3d at 554 (citing Santosky, 
    455 U.S. at
    747–
    48, 
    102 S. Ct. at
    1391–92). We carefully scrutinize termination proceedings and
    strictly construe involuntary termination statutes in the parent’s favor. E.N.C., 384
    S.W.3d at 802; E.R., 385 S.W.3d at 563.
    15
    and we consider undisputed evidence even if it is contrary to the finding. Id.; J.F.C.,
    96 S.W.3d at 266.       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. In re J.P.B., 
    180 S.W.3d 570
    , 573 (Tex. 2005). The factfinder is
    the sole judge of the witnesses’ credibility and demeanor. In re J.O.A., 
    283 S.W.3d 336
    , 346 (Tex. 2009).
    With regard to a factual-sufficiency challenge to the termination grounds, we
    must perform “an exacting review of the entire record.” See In re A.B., 
    437 S.W.3d 498
    , 500 (Tex. 2014). We nevertheless 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). As pertinent to Father’s issues, we review the whole record to decide
    whether a factfinder could reasonably form a firm conviction or belief that DFPS
    proved that Father constructively abandoned J.B., endangered J.B., or failed to follow
    court orders with which he was required to comply for J.B.’s return to him. See 
    Tex. Fam. Code Ann. § 161.001
    (b)(1)(D), (E), (N), (O); 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. But if a factfinder
    reasonably could not—because the disputed evidence that could not reasonably
    support the finding is too significant—then the evidence is factually insufficient.
    H.R.M., 209 S.W.3d at 108.
    16
    Along with a best-interest finding, a finding of only one ground alleged under
    Section 161.001(b)(1) is sufficient to support termination. In re A.V., 
    113 S.W.3d 355
    ,
    362 (Tex. 2003). However, because Subsection (M) of Section 161.001(b)(1) allows a
    trial court to terminate the parental rights of a parent whose parent–child relationship
    with another child was terminated based on a finding under Subsection (D) or (E),
    when a parent challenges a Subsection (D) or (E) finding, due process and due course
    of law demand that we address the finding and detail our analysis. See 
    Tex. Fam. Code Ann. § 161.001
    (b)(1)(D), (E), (M); In re N.G., 
    577 S.W.3d 230
    , 235, 237 (Tex.
    2019); see also In re Z.M.M., 
    577 S.W.3d 541
    , 543 (Tex. 2019) (relying on N.G. to hold
    that the court of appeals erred by not addressing the father’s sufficiency challenge to
    the trial court’s Subsection (D) finding). Accordingly, we begin our analysis by
    reviewing endangerment first.
    B. Endangerment
    In his second issue, Father argues that there is no evidence or insufficient
    evidence to support the Subsection (E) finding that he engaged in conduct that
    endangered his child.
    “‘[E]ndanger’ means to expose to loss or injury” or “to jeopardize.” In re J.F.-
    G., 
    627 S.W.3d 304
    , 312 (Tex. 2021) (quoting Tex. Dep’t of Human Servs. v. Boyd, 
    727 S.W.2d 531
    , 533 (Tex. 1987)).      Under Subsection (E), a parent’s rights may be
    terminated if he “engaged in conduct or knowingly placed the child with persons who
    engaged in conduct which endangers the physical or emotional well-being of the
    17
    child.” 
    Tex. Fam. Code Ann. § 161.001
    (b)(1)(E). The endangering conduct need not
    be directed at the child, nor must the child actually suffer injury. J.F.-G., 627 S.W.3d
    at 312. The relevant inquiry is whether evidence exists that the endangerment was the
    direct result of the parent’s conduct, including acts, omissions, or failures to act. See
    In re J.T.G., 
    121 S.W.3d 117
    , 125 (Tex. App.—Fort Worth 2003, no pet.). Scienter is
    required under Subsection (E) only when a parent places a child with others who
    engage in a course of conduct that endangers the child. In re A.B., 
    412 S.W.3d 588
    ,
    599 (Tex. App.—Fort Worth 2013), aff’d, 437 S.W.3d at 500. A parent’s conduct that
    subjects a child to a life of uncertainty and instability endangers the child’s physical
    and emotional well-being. A.B., 
    412 S.W.3d at 599
    .
    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, under Subsection (E), the court may
    consider acts occurring both before and after a child’s birth––and after removal––in
    determining a course of conduct. In re C.Y., No. 02-21-00261-CV, 
    2022 WL 500028
    ,
    at *2 (Tex. App.—Fort Worth Feb. 18, 2022, pet. denied) (mem. op.). Such acts may
    “create an inference that similar conduct could recur and further jeopardize a child’s
    well-being.” 
    Id.
     (quoting In re M.W., No. 02-21-00146-CV, 
    2021 WL 3679247
    , at *4
    (Tex. App.—Fort Worth Aug. 19, 2021, pet. denied) (mem. op.)). A parent’s lack of
    significant contact with a child may also endanger the child’s physical or emotional
    18
    well-being. In re A.J.D., No. 02-13-00183-CV, 
    2013 WL 5781478
    , at *4 (Tex. App.––
    Fort Worth Oct. 24, 2013, no pet.) (mem. op.).
    1. Father’s arguments
    Father argues that “[t]he only evidence [DFPS] put on regarding [his]
    knowledge of [Mother’s] drug use was his statement to the caseworker that he did
    everything within his power to get [Mother] to stop using drugs during her
    pregnancy.” He contends that Mother’s testimony that he would beat her if she did
    not use drugs was not credible because he was incarcerated well before J.B.’s birth and
    not available to force her to take illicit drugs during that time.22 Father argues that he
    22
    A parent’s knowledge of the other parent’s drug use during pregnancy and
    corresponding failure to attempt to protect the unborn child from the effects of that
    drug use can contribute to an endangering environment and thus support an
    endangerment finding under Subsection (D). In re J.W., 
    645 S.W.3d 726
    , 749–50 (Tex.
    2022). That is, a parent cannot remain willfully ignorant of the significant risk that a
    pregnant mother’s drug use poses, but a court may not attribute any and all known
    dangers posed to a child during the mother’s pregnancy to the other parent because
    “the inquiry is necessarily dependent on the facts and circumstances.” 
    Id.
     The
    supreme court has stated that “if a parent actively participates in creating or
    maintaining a dangerous environment during pregnancy, e.g., does drugs with the
    pregnant mother, encourages her drug use, or supplies drugs, we see no reason why
    such conduct would not qualify as endangerment under Subsection (D).” 
    Id.
     at 750
    n.13. J.W. was a recent 5–4 decision in which the majority concluded that legally
    sufficient evidence supported the Subsection (O) finding but not the jury’s Subsection
    (D) finding such that the broad-form jury charge containing both subsections required
    a new trial. 
    Id. at 752
    . The opinion drew two dissents. See 
    id.
     at 756–57 (Boyd, J.,
    dissenting) (reiterating majority’s holding that Subsection (D) protects unborn
    children from dangerous conditions caused by their parents but objecting that the
    majority ignored evidence that the father had repeatedly minimized, denied, and
    enabled the mother’s conspicuous and continuous drug use throughout pregnancy),
    759–60 (Blacklock, J., dissenting) (objecting that DFPS’s case against the father under
    Subsection (O) “amounted primarily to speculation that he might not provide a safe
    19
    “should not lose his child because of [Mother’s] failings” and that he must be judged
    by his actions, not hers. Father further states that although DFPS contended that he
    had a history of behaving violently, possessing controlled substances, and using drugs,
    DFPS produced no evidence to support its contentions because it produced no
    evidence of criminal convictions and no evidence to show that incarceration resulted
    from his conscious and voluntary course of conduct or that he had possessed or used
    controlled substances.
    Father acknowledges the family-violence-assault indictment and the aggravated-
    assault criminal complaint introduced by DFPS but points out that these instruments
    are based on a probable-cause standard and not clear and convincing evidence. See
    Ex parte Plumb, 
    595 S.W.2d 544
    , 545 (Tex. Crim. App. 1980) (“The return of an
    indictment establishes probable cause as a matter of law.”). He complains that the
    remaining testimony that he had been convicted of assault, that he had been in prison,
    that he had a long history of violent crime, and that he was on parole or bond was
    conclusory, ambiguous, or unproven.
    2. Endangering course of conduct
    Evidence of incarceration and its effect on a parent’s ability to parent may
    establish an endangering course of conduct. In re S.M., 
    389 S.W.3d 483
    , 492 (Tex.
    home for his son in the future,” which is not a predicate ground for termination); see also
    id. at 752 (Young, J., concurring) (“One dissent argues that the Court has not gone far
    enough; the other contends that the Court has gone too far.”).
    20
    App.––El Paso 2012, no pet.); In re A.J.M., 
    375 S.W.3d 599
    , 606 (Tex. App.––Fort
    Worth 2012, pet. denied) (op. on reh’g en banc) (“When incarceration affects the
    parent’s ability to care for his child, to provide safe living conditions, or to ensure her
    safety and well-being, then such incarceration can be a part of a course of continuing
    conduct.”).     While mere imprisonment, standing alone, will not constitute
    endangering conduct, when all of the evidence—including imprisonment—shows an
    endangering course of conduct, a finding under Subsection (E) is supportable. Walker
    v. Tex. Dep’t of Fam. & Protective Servs., 
    312 S.W.3d 608
    , 617 (Tex. App.––Houston [1st
    Dist.] 2009, pet. denied). Routinely subjecting a child to the probability that he will be
    left alone because his parent is in jail is endangering. Id.; see also In re M.R., 
    243 S.W.3d 807
    , 819 (Tex. App.––Fort Worth 2007, no pet.).23             “The State need not show
    incarceration was a result of a course of conduct endangering the child; it need only
    show incarceration was part of a course of conduct endangering the child.” In re D.M.,
    23
    In M.R., the father had been incarcerated for burglary of a habitation after
    violating his community supervision by possessing methamphetamine. 243 S.W.3d at
    819. The burglary offense had occurred before he knew the child’s mother was
    pregnant, but he violated his community supervision for that offense a few months
    after the child’s birth, and he received a two-year sentence. Id. By the time of the
    termination trial, he had been incarcerated for 26 months of the child’s 36-month life,
    which affected his ability to ensure the child’s proper care. Id. Moreover, his
    incarceration prevented him from obtaining better living conditions and from
    providing financial support for the child. Id. The evidence showed that the father
    had been aware that the mother lived with drug users and that, instead of avoiding a
    criminal lifestyle, his decisions had prevented him from having a role in his son’s life
    or from providing any support. Id. We concluded that the evidence was factually
    sufficient to support the trial court’s endangerment-by-conduct ground. Id.
    21
    
    58 S.W.3d 801
    , 812 (Tex. App.––Fort Worth 2001, no pet.) (emphasis added); see also
    In re P.M.M.K., No. 04-19-00786-CV, 
    2020 WL 1695499
    , at *3 (Tex. App.––San
    Antonio Apr. 8, 2020, pet. denied) (mem. op.).
    Under Subsection (E), charges themselves can be relevant; they do not
    necessarily have to result in convictions.24 In re E.S.T., No. 01-22-00404-CV, 
    2022 WL 17096713
    , at *15 (Tex. App.—Houston [1st Dist.] Nov. 21, 2022, no pet.) (mem.
    op.) (“Furthermore, even non-violent, misdemeanor offenses, and arrests for criminal
    conduct that do not result in conviction will support a finding of endangerment.”
    (citations omitted)); In re S.A., No. 12-22-00111-CV, 
    2022 WL 16558456
    , at *5 (Tex.
    App.—Tyler Oct. 31, 2022, no pet.) (mem. op.) (“Criminal acts that also constitute
    domestic violence need not lead to indictment or conviction in order to be considered
    under the family code.”); In re C.W., No. 02-17-00025-CV, 
    2017 WL 2289115
    , at *1–2,
    *7 (Tex. App.––Fort Worth May 25, 2017, no pet.) (mem. op.) (noting that at time of
    trial, father with extensive criminal history was jailed on pending aggravated-sexual-
    assault-of-a-child charges and parole warrant); In re T.G.R.-M., 
    404 S.W.3d 7
    , 15–16
    (Tex. App.––Houston [1st Dist.] 2013, no pet.) (noting that mother “continued to
    24
    DFPS took a bare-bones approach to meeting its burden of proof but could
    have called Father to testify about his criminal history, could have called a
    recordkeeper with certified copies of Father’s judgments of convictions, or could have
    called one or more of Father’s alleged victims, any of which would have made this a
    stronger case. Nonetheless, we are constrained by the standards of review, which
    require us, for legal sufficiency, to look at the evidence in the light most favorable to
    the trial court’s findings, see Z.N., 602 S.W.3d at 545, and for factual sufficiency, to
    give due deference to the factfinder’s findings, see A.B., 437 S.W.3d at 500.
    22
    place herself in situations that risked her imprisonment even though she knew her
    parental rights were in jeopardy on the occasion of both arrests because the
    Department already had custody of T.G.R.-M” and that “[a]lthough the charges
    stemming from these two arrests were ultimately dismissed, each time the mother was
    jailed, she was absent from T.G.R.-M.’s life and was not able to provide for T.G.R.-
    M.’s physical and emotional needs”); In re V.V., 
    349 S.W.3d 548
    , 553–54 (Tex.
    App.—Houston [1st Dist.] 2010, pet. denied) (op on reh’g en banc).25 In addition, the
    failure to work a service plan––even because of incarceration––is a factor a trial court
    may consider in a Subsection (E) analysis. See In re Z.J., No. 02-19-00118-CV, 2019
    25
    In V.V., the court held that
    [t]he record—sparse though it is—reveals the father’s assault on the
    child’s mother days before the parental termination hearing, his bad
    choices leading to repeated imprisonment, his wholesale lack of
    parenting beyond the moment of conception, and a child left in the care
    of the state at birth because the father was in jail and the mother had
    ingested opiates during the pregnancy. The child was born with opiates
    in her system, and her mother later voluntarily relinquished her own
    parental rights. In ruling a parenting forfeit, the trial court reasonably
    credited the evidence of the parenting void in this child’s life and the
    father’s inability to safeguard the child’s physical and emotional well-
    being. A lack of all contact with a child without any proffered excuse
    and no effort to ensure her safety—coupled with multiple episodes of
    incarceration and an assault on the mother—is legally sufficient to
    support a termination finding based on endangerment. An infant who is
    not looked after by either of her parents, as this one was not, undeniably
    is in serious danger of physical and emotional injury. Settled authorities
    have upheld termination based on endangerment in these circumstances.
    
    349 S.W.3d at
    553–54.
    
    23 WL 6205252
    , at *11 (Tex. App.––Fort Worth Nov. 21, 2019, pet. denied) (mem. op.);
    see also In re M.R., No., 
    2022 WL 4545534
    , at *6–7 (Tex. App.––Fort Worth Sept. 29,
    2022, no pet.) (mem. op.).26
    The evidence shows not only that Father had been charged with and jailed for
    alleged assaultive acts against Mother before J.B. was born but also that
    • Mother was pregnant in January 2021, when the State alleged Father assaulted her;
    • After J.B.’s birth and before his removal, Father told Eastman that he had known
    Mother was pregnant and that she had been using meth “heavily” and also that he
    had discussed with Mother the impact her drug use could have on the child,27 in
    contrast to Mother’s assertions that Father had forced her to use drugs since she
    was 18, i.e., for 13 years by the time of J.B.’s birth;
    • Father was aware that Mother had mental-health problems as she later reported to
    the hospital staff (in addition to her drug use), and J.B.’s medical records show that
    Mother was a drug addict who suffered from schizoaffective disorder and PTSD
    and who told the DFPS investigator that Father would beat her if she did not use
    methamphetamine, but she did not say when he did this or if he did so while she
    was pregnant;
    26
    M.R. has similar facts to Father’s case but is distinguishable as a stronger case
    for termination because, among other things, the trial court took judicial notice of its
    file, the father had been convicted and was serving time at the time of termination, the
    father had disclaimed paternity and did not attempt to see the child before his
    incarceration, the father had some history of drug use, and––importantly––the
    evidence accounted for the possibility that—unlike in the case before us—the father
    could have worked services at the facility where he was housed. 
    2022 WL 4545534
    , at
    *3–7.
    27
    Mother had a long history of endangering her other children with her drug
    use, so even without Father’s secondhand statements from Eastman, it is likely that
    Father was aware of Mother’s drug problem even if he did not force her to use drugs.
    24
    • At some point––presumably in January 2021 but before Father was jailed and
    while Mother and Father knew she was pregnant––Mother and Father argued
    “about her drug use,” she called the police, and he was arrested;
    • Mathematically and physically, Father could not have forced Mother to take drugs
    immediately before J.B.’s birth when he had been incarcerated for several months by
    that time,28 but the trial court could have found that he had forced her to take
    drugs while pregnant, which would have endangered J.B.;
    • At the time of their argument, Father––by his own admission to Eastman––was
    either on parole or on bond29 for “a prior family violence charge”; in other words,
    when he and Mother argued, he either already had a family-violence conviction or
    a pending charge;
    • When asked in April 2022 if Father had told her “why he is currently in jail,” Hall
    said that Father told her “that he never assaulted [Mother] and that the fraudulent
    identities in his car were actually [Mother’s] not his”; thus, there is some evidence
    Father possessed fraudulent identities;
    • Father was arrested on new, gun-related charges before he could work any services
    even though he had made an attempt to start;
    • The new charges, according to Hall’s understanding, allegedly occurred where
    Father was living with his sister, the living arrangements he had made upon his
    release (and which, to be in compliance with his service plan, were to be safe and
    stable);
    28
    Mother’s medical records reflect that she was pregnant for 40 weeks,
    indicating that she became pregnant during September 2020 and was approximately
    17 weeks’ pregnant at the time of the alleged assault.
    29
    Parole and bond are not the same thing. Bond is posted by an accused as a
    security for his appearance to answer a criminal accusation against him. See generally
    Tex. Code Crim. Proc. Ann. arts. 17.01–.53 (discussing bail). Parole, on the other
    hand, is for someone whose charge has become a conviction; it is the discretionary
    and conditional release of an eligible inmate “so that the inmate may serve the
    remainder of [his] sentence under the supervision of the pardons and paroles
    division.” Tex. Gov’t Code Ann. § 508.001.
    25
    • According to Hall’s testimony, Father had at least one conviction for a domestic-
    violence-related assault (as of April 2022, i.e., before his June 2022 release and
    resolution of his then-pending charges);
    • Hall also testified, over no objections, that Father had approximately 20 criminal
    charges, and she testified that he had a “significant history” of violent crimes,
    domestic violence, and assaults “against almost all of the mothers of his other
    children,” which numbered “approximate[ly] 13,” most of whom were minors;
    • Father had a prior CPS case; and
    • Father told Eastman before J.B.’s removal that three of his other children had
    been removed while he was incarcerated.
    From the above, the factfinder could have inferred that Father had been
    convicted of something (assaultive behavior or identity-fraud-related behavior)
    stemming from his pre-June 2021 through June 2022 incarceration; that he served the
    entire first year of J.B.’s life for that offense; and that before serving his time and
    being released in June or early July 2022, he had racked up around 20 charges and at
    least one assault conviction and had been incarcerated when three of his other
    children had been taken into CPS custody.
    Further, during the limited time that he was not incarcerated during the case,
    Father was again arrested for a violent crime. See In re A.W., No. 02-18-00147-CV,
    
    2018 WL 5074770
    , at *12 (Tex. App.—Fort Worth Oct. 18, 2018, pet. denied) (mem.
    op.) (rejecting parent’s argument that his conduct had no bearing on his arrests or on
    his indictments and noting that even if he was ultimately acquitted, he had not learned
    how to avoid situations that lent themselves to arrests and indictments); see also In re
    26
    A.M., No. 02-16-00208-CV, 
    2016 WL 7046858
    , at *1–3 (Tex. App.—Fort Worth
    Dec. 2, 2016, no pet.) (mem. op.) (holding that although parent, who was incarcerated
    for choking child’s mother while she was pregnant, blamed his incarceration for his
    inability to complete his court-ordered service plan, this evidence, among other things,
    was legally and factually sufficient to defeat his best-interest challenge).
    Although this record is sparse, the trial court, as the factfinder, was the sole
    judge of the witnesses’ credibility and demeanor, J.O.A., 283 S.W.3d at 346, and
    viewed in the light most favorable to its endangerment-by-conduct finding, we
    conclude that a reasonable factfinder could form a firm belief or conviction that the
    finding is true, Z.N., 602 S.W.3d at 545. Likewise, having performed an exacting
    review of the entire record, we conclude that the evidence is factually sufficient to
    support the trial court’s endangerment-by-conduct finding. See A.B., 437 S.W.3d at
    500. Accordingly, we overrule Father’s second issue without reaching his remaining
    issues. See Tex. R. App. P. 47.1.
    IV. Conclusion
    Having overruled Father’s dispositive endangerment-by-conduct issue, we
    affirm the trial court’s judgment.
    /s/ Bonnie Sudderth
    Bonnie Sudderth
    Chief Justice
    Delivered: February 9, 2023
    27