In the Interest of M.G., a Child v. the State of Texas ( 2023 )


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  •              In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-23-00074-CV
    ___________________________
    IN THE INTEREST OF M.G., A CHILD
    On Appeal from the 360th District Court
    Tarrant County, Texas
    Trial Court No. 360-704341-21
    Before Birdwell, Womack, and Wallach, JJ.
    Memorandum Opinion by Justice Birdwell
    MEMORANDUM OPINION
    Appellants D.H. (Mother) and S.L.G. (Father) appeal the trial court’s judgment
    terminating their parental rights to their daughter, M.G.1 In five issues, Mother
    contends that the evidence is legally and factually insufficient to support statutory
    grounds for termination. Father’s appointed appellate counsel has filed a brief under
    Anders v. California, 
    386 U.S. 738
    , 744–45, 
    87 S. Ct. 1396
    , 1400 (1967), asserting that
    Father’s appeal is frivolous. Because we overrule Mother’s dispositive issues and
    because after carefully reviewing the record we agree with Father’s counsel that
    Father’s appeal is frivolous, we affirm the trial court’s termination order.2
    BACKGROUND
    In August 2021, the Texas Department of Family and Protective Services (the
    Department) received a report from John Peter Smith Hospital alleging that
    Mother—who had just given birth—had untreated mental health issues and was
    possibly suffering from Intellectual Developmental Disabilities (IDD). The report
    alleged that Mother was “irate” and unable to care for her newborn child, M.G.
    After meeting with hospital staff, the Department’s investigator, Nidra Jones,
    met with Mother and observed her to be “irate” as indicated in the report. Mother
    To protect the anonymity of the child associated with this appeal, we use a
    1
    pseudonym to refer to her and her family members. See 
    Tex. Fam. Code Ann. § 109.002
    (d); Tex. R. App. P. 9.8(b)(2).
    2
    As discussed in greater detail below, although it does not affect the outcome
    of this appeal, we modify the termination order to remove an unproven predicate-
    ground finding as to Father. See Tex. R. App. P. 43.2(b).
    2
    admitted to having mental health issues but was unable to tell Jones her specific
    diagnosis. When Jones asked Mother if she had been seeing a doctor to address her
    mental health issues, Mother responded that it was none of her business. Mother also
    reported that she had not been taking the medication that she had been prescribed for
    her mental health issues because “she was happy.”
    In addition to Mother’s mental health issues, Jones had other concerns. Mother
    clutched the baby too tightly to her body and refused to bottle feed her even though
    she was not latching when Mother tried to breastfeed her. Further, although Mother
    had told Jones that Father was her “husband” and that he had been unable to be at
    the hospital for the delivery because he had to work, Jones later discovered that
    Father was actually married to another woman and that he was not at the hospital
    because he had been incarcerated for domestic abuse against his wife. Jones also
    discovered that Father had an extensive criminal history, including several violent
    offenses. Further, Jones learned that Mother had two other children, one who lived
    with a relative in California 3 and another who had been removed from Mother’s
    custody by Child Protective Services in Arizona and had subsequently been adopted.
    Based on these initial concerns, Jones believed that Mother and Father were
    unable to care for M.G. and posed an ongoing risk to her health and safety. Because
    3
    Mother initially told Jones that her child lived with her mother in California,
    but Jones later discovered that Mother’s sister, B.H., had custody of the child.
    3
    Jones could not locate suitable placement with a family member, 4 she recommended
    removal. The trial court signed an order naming the Department as M.G.’s temporary
    sole managing conservator, and she was ultimately placed in a foster home.
    The Department provided service plans to both Mother and Father to ensure
    that they could provide a safe environment for M.G. if she were returned to their
    custody. The trial court specifically ordered Mother and Father to comply with all of
    the requirements of their respective service plans.
    Under Mother’s service plan, she was required to do the following before she
    could reunite with M.G.: (1) provide a lease or housing agreement with her name on
    it; (2) submit to a psychological evaluation to obtain an updated diagnosis reflecting
    her current mental health and follow all recommendations from this assessment;
    (3) utilize MHMR5 services to engage in counseling and medication management;
    (4) display an understanding of the importance of consistently addressing her mental
    health needs and taking her prescribed medication; and (5) keep CPS updated
    4
    As part of Jones’s efforts to find suitable placement for M.G., she contacted
    Mother’s sister, B.H. B.H. informed Jones that she had been trying unsuccessfully to
    help Mother deal with her mental health issues, which Mother had experienced her
    entire life and which are “very prevalent” in her family. As noted above, see supra note
    3, B.H. has custody of one of Mother’s other children and expressed her desire to gain
    custody of M.G. as well, but she was unable to travel to Texas from her home in
    California at the time she spoke to Jones.
    5
    MHMR stands for “My Health My Resources,” which is a local government
    unit that provides a number of community services, including mental health services,
    in Tarrant County. See MHMR, https://www.mhmrtarrant.org/about-us/ (last visited
    June 6, 2023).
    4
    regarding any medication that she was prescribed. However, Mother failed to comply
    with all of these requirements. Specifically, she failed to provide a lease or housing
    agreement with her name on it; she deliberately refused to participate in—or chose to
    prematurely end—court-ordered treatment for her mental health issues; she refused
    to comply with recommended services that a psychologist testified were required to
    provide a safe environment for M.G.; and she failed to show the Department that she
    was consistently taking her medication in the manner prescribed by her mental health
    provider.
    Father’s service plan required him to undergo a psychological evaluation,
    engage in individual counseling, complete a Batterer’s Intervention and Prevention
    Program (BIPP), and submit to drug testing. Like Mother, Father failed to comply
    with the requirements of his service plan. Specifically, Father did not complete a BIPP
    or individual counseling and never underwent a drug test. In fact, Father told a
    caseworker that he felt that he did not need to comply with his service plan because it
    was not his fault that M.G. had been removed.
    During the pendency of the case, Mother and Father not only failed to alleviate
    the Department’s initial concerns by completing their service plans but also engaged
    in conduct that gave rise to new concerns. For example, after M.G.’s removal, Mother
    gave birth to another child who also had to be removed due to Father’s apparent drug
    use and Mother’s unwillingness or inability to obtain necessary mental health services.
    Additionally, Father was incarcerated from January to March 2022 for violating the
    5
    terms of his probation. Also, Mother informed a caseworker that Father had
    temporarily kicked her out of their apartment after an argument and that she had not
    been allowed to return without Father’s permission because her name was not on the
    lease. This raised the possibility that Mother could become homeless.
    Following a bench trial, the trial court signed an order terminating Mother’s
    and Father’s parental rights to M.G. In support of its termination of Mother’s parental
    rights, the trial court found by clear and convincing evidence that Mother (1) had
    knowingly placed or knowingly allowed M.G. to remain in conditions or surroundings
    which endangered her physical or emotional well-being, see Tex. Fam. Code. Ann.
    § 161.001(b)(1)(D); (2) had engaged in conduct or knowingly placed M.G. with
    persons who engaged in conduct which endangered her physical or emotional well-
    being, see id. § 161.001(b)(1)(E); and (3) has a mental or emotional illness or a mental
    deficiency that renders her unfit to provide for M.G.’s needs and that this illness or
    deficiency, in all reasonable probability, will continue to render Mother unfit to
    provide for M.G.’s needs until M.G.’s eighteenth birthday, see id. § 161.003. In
    addition, the trial court found that Father had constructively abandoned M.G., that
    the Department had made reasonable efforts to return M.G. to Father, that Father
    had not regularly visited or maintained significant contact with M.G., and that Father
    had demonstrated an inability to provide M.G. with a safe environment. See id.
    § 161.001(b)(1)(N). Further, the trial court found that Mother and Father had each
    failed to comply with the provisions of a court order that specifically established the
    6
    actions necessary for them to obtain the return of M.G. after she had been removed
    from their care for abuse or neglect and after she had been in the Department’s
    managing conservatorship for at least nine months and that termination of Mother’s
    and Father’s parental rights was in M.G.’s best interest. See id. § 161.001(b)(1)(O), (2).
    Mother and Father each appealed.
    MOTHER’S APPEAL: THE EVIDENCE IS SUFFICIENT TO SUPPORT TERMINATION
    In five issues, Mother contends that the evidence is insufficient to uphold the
    findings supporting termination. For a trial court to terminate a parent–child
    relationship, the party seeking termination must prove two elements by clear and
    convincing evidence: (1) that the parent’s actions satisfy one ground listed in Family
    Code Section 161.001(b)(1); and (2) that termination is in the child’s best interest. Id.
    § 161.001(b); In re Z.N., 
    602 S.W.3d 541
    , 545 (Tex. 2020). 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.
    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). In a termination case, the State seeks not just to limit parental rights but to
    7
    erase them permanently—to divest the parent and child of all legal rights, privileges,
    duties, and powers normally existing between them, except the child’s right to inherit.
    
    Tex. Fam. Code Ann. § 161.206
    (b); Holick v. Smith, 
    685 S.W.2d 18
    , 20 (Tex. 1985).
    Consequently, “[w]hen the State seeks to sever permanently the relationship between
    a parent and a child, it must first observe fundamentally fair procedures.” E.R., 385
    S.W.3d at 554 (citing Santosky, 
    455 U.S. at
    747–48, 
    102 S. Ct. at
    1391–92). For the
    same reason, 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; Holick, 685 S.W.2d at 20–21.
    To determine whether the evidence is legally sufficient in parental-termination
    cases, we look at all the evidence in the light most favorable to the challenged finding
    to determine whether a reasonable factfinder could form a firm belief or conviction
    that the finding is true. 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,
    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
    8
    (Tex. 2009).
    We must perform “an exacting review of the entire record” in determining the
    factual sufficiency of the evidence supporting the termination of a parent–child
    relationship. In re A.B., 
    437 S.W.3d 498
    , 500 (Tex. 2014). Nevertheless, we give due
    deference to the factfinder’s findings and do not supplant them with our own. In re
    H.R.M., 
    209 S.W.3d 105
    , 108 (Tex. 2006). We review the whole record to decide
    whether a factfinder could reasonably form a firm conviction or belief that the
    Department proved one or more of the conduct-specific grounds on which the
    termination was based and that the termination of the parent–child relationship would
    be in the child’s best interest. 
    Tex. Fam. Code Ann. § 161.001
    (b); In re C.H., 
    89 S.W.3d 17
    , 28 (Tex. 2002). If the factfinder reasonably could form such a firm
    conviction or belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18–19.
    A.     Failure to Comply with the Provisions of a Court Order Under
    Section 161.001(b)(1)(O)
    In her third issue, Mother contends that the evidence is legally and factually
    insufficient to support termination under Section 161.001(b)(1)(O) of the Family
    Code. This subsection authorizes the termination of parental rights when a parent
    fails to comply with the provisions of a court order that specifically established the
    actions necessary for the parent to obtain the return of a child who has been in the
    permanent or temporary managing conservatorship of the Department for not less
    9
    than nine months as a result of the child’s removal for abuse or neglect. 
    Tex. Fam. Code Ann. § 161.001
    (b)(1)(O).
    As set forth above, the trial court made a predicate finding pursuant to Section
    161.001(b)(1)(O) that Mother had failed to comply with the provisions of a court
    order that specifically established the actions necessary for her to obtain the return of
    M.G. Although Mother’s brief includes as one of her enumerated appellate issues an
    assertion that the evidence was legally and factually insufficient to support termination
    under Section 161.001(b)(1)(O) and sets forth the law applicable to termination under
    that subsection, it fails to point out any specific deficiencies in the evidence
    supporting the trial court’s predicate finding under Section 161.001(b)(1)(O). Indeed,
    while the argument section of Mother’s brief contains subsections addressing the lack
    of evidence to support the trial court’s predicate findings under Sections
    161.001(b)(1)(D) and (E) and the trial court’s finding that termination is in M.G.’s
    best interest under Section 161.001(b)(2), it contains no such subsection addressing
    the trial court’s findings under Section 161.001(b)(1)(O).6 Essentially, Mother leaves it
    up to us to brief her issue, but we have no duty to do so. See O’Neal v. Dale, No. 02-
    20-00173-CV, 
    2021 WL 210848
    , at *8 (Tex. App.—Fort Worth Jan. 21, 2021, no pet.)
    (mem. op.) (citing Huey v. Huey, 
    200 S.W.3d 851
    , 854 (Tex. App.—Dallas 2006, no
    pet.)). Thus, Mother has forfeited the issue due to inadequate briefing. See Tex. R.
    6
    Mother discusses service-plan related facts in the brief’s Statement of Facts,
    but those are relevant to all of her appellate issues.
    10
    App. P. 38.1; Fredonia State Bank v. Gen. Am. Life Ins. Co., 
    881 S.W.2d 279
    , 284 (Tex.
    1994) (observing that error may be waived by inadequate briefing); see also Jackson v.
    Vaughn, 
    546 S.W.3d 913
    , 922 (Tex. App.—Amarillo 2018, no pet.); McKinnon v. Wallin,
    No. 03-17-00592-CV, 
    2018 WL 3849399
    , at *2–3 (Tex. App.—Austin Aug. 14, 2018,
    pet. denied) (mem. op.).
    Even if Mother had not forfeited the issue, the record contains ample evidence
    to support termination under Section 161.001(b)(1)(O).7 As detailed above, the trial
    court ordered Mother to comply with all of the requirements of her service plan.
    These requirements included, among other things, providing a lease or housing
    agreement with her name on it; submitting to an updated psychological evaluation and
    following all recommendations from this assessment; utilizing MHMR services to
    engage in counseling and medication management; and staying consistent with her
    prescribed medication. 8 The permanency specialist assigned to M.G.’s case testified
    that Mother had deliberately refused to participate in—or chose to prematurely end—
    court-ordered treatment for her mental health issues; had refused to comply with
    recommended services that a psychologist testified were required to provide a safe
    7
    Because the record reflects that the Department was named M.G.’s temporary
    sole managing conservator as of August 9, 2021, it is beyond dispute that M.G. has
    been in the Department’s temporary managing conservatorship for not less than nine
    months as required by Subsection (O). See Tex. Fam. Code. Ann. § 161.001(b)(1)(O).
    8
    These requirements are sufficiently specific to notify Mother of the actions she
    had to take to retain custody. See In re N.G., 
    577 S.W.3d 230
    , 239 (Tex. 2019)
    (requiring courts of appeals to consider order’s specificity in Subsection (O)
    sufficiency analysis).
    11
    environment for M.G.; and had failed to show the Department that she was
    consistently taking her medication in the manner prescribed by her mental health
    provider. While Mother testified that she had taken her medication after M.G. was
    born, she also admitted that she was not currently taking it at the time of trial and that
    she had not taken it during her most recent pregnancy. She also admitted that she
    could not provide a lease or housing agreement with her name on it. This evidence
    could have rationally enabled the trial court to form a firm belief or conviction that
    Mother had failed to comply with the provisions of a court order that specifically
    established the actions necessary for her to obtain the return of M.G. 9 See 
    Tex. Fam. Code Ann. § 161.001
    (b)(1)(O).
    9
    The trial court’s termination order specifically found that Mother failed to
    prove her affirmative defense under Section 161.001(d), which provides that a court
    may not order termination under Section 161.001(b)(1)(O) if a parent proves by a
    preponderance of the evidence (1) that she was unable to comply with specific
    provisions of the court order and (2) that she made a good faith effort to comply with
    the order and the failure to comply is not her fault. 
    Tex. Fam. Code Ann. § 161.001
    (d). Although Mother never references or cites to Section 161.001(d) in her
    brief, some of her arguments concerning whether termination was in M.G.’s best
    interest touch on Mother’s efforts to comply with the provisions of her service plan.
    See In re Z.M.M., 
    577 S.W.3d 541
    , 542–43 (Tex. 2019) (holding that although father
    did not explicitly raise a Section 161.001(d) argument in the court of appeals, his
    arguments should have alerted the court that he was urging a Section 161.001(d)
    defense). Therefore, in the interest of completeness, we hold that the evidence was
    legally and factually sufficient to uphold the trial court’s finding that Mother failed to
    prove her affirmative defense under Section 161.001(d). The permanency specialist
    testified that Mother was discharged from her counseling program because “[s]he was
    not consistent with her involvement with the therapist” and “expressed throughout
    that she did not want to participate anymore” and that it was Mother’s fault that her
    MHMR mental health assessment was never completed because Mother refused to
    cooperate regarding scheduling. Although Mother tried to explain that her failure to
    12
    Because Mother forfeited her challenge to the trial court’s Subsection (O)
    predicate-ground finding and because we conclude that, even if she had not, the evidence
    is legally and factually sufficient to support termination under that subsection, see J.P.B.,
    180 S.W.3d at 573; C.H., 89 S.W.3d at 28–29, we overrule Mother’s third issue.
    B.     Endangerment Under Section 161.001(b)(1)(D) and (E)
    Having concluded that Mother forfeited her challenge to the trial court’s
    Subsection (O) predicate-ground finding, we have already determined that the
    requirements of Section 161.001(b)(1) have been satisfied in the present case. See 
    Tex. Fam. Code Ann. § 161.001
    (b)(1); In re A.V., 
    113 S.W.3d 355
    , 362 (Tex. 2003)
    (recognizing that “[o]nly one predicate finding under [S]ection 161.001[(b)](1) is
    necessary to support a judgment of termination”). This would ordinarily end our
    Section 161.001(b)(1) analysis. See, e.g., In re C.W., 
    586 S.W.3d 405
    , 406 (Tex. 2019)
    (“To affirm termination of parental rights on appeal, appellate courts often detail the
    evidence in support of only one termination ground . . . even if the trial court based
    the termination on more than one ground.”). But the Texas Supreme Court has
    recognized that because Subsection (M) 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 (D) or (E), 
    Tex. Fam. Code Ann. § 161.001
    (b)(1)(M), a trial
    court’s finding under either Subsection (D) or (E) has consequences for termination
    complete her court-ordered service plan was due to a lack of understanding, the trial
    court, as the sole judge of the witnesses’ credibility, see J.O.A., 283 S.W.3d at 346, was
    free to reject her explanation.
    13
    of parental rights as to other children. C.W., 586 S.W.3d at 406. Thus, 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. N.G., 577 S.W.3d at 235, 237; see
    C.W., 586 S.W.3d at 407 (relying on N.G. and holding same); see also Z.M.M., 577
    S.W.3d at 543 (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 address Mother’s first and second issues in which she
    challenges the legal and factual sufficiency of the trial court’s predicate-ground
    findings under Subsections (D) and (E).10
    Section 161.001(b)(1)(D) and (E) both require a finding of endangerment.
    “‘[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)); see also In re J.V., No. 02-15-00036-CV, 
    2015 WL 4148500
    , at *3
    (Tex. App.—Fort Worth July 9, 2015, no pet.) (mem. op.) (“A child is endangered
    when the environment creates a potential for danger that the parent is aware of but
    disregards.”). The specific danger to a child’s physical or emotional well-being need
    not be established as an independent proposition, but it may be inferred from parental
    misconduct. Tex. Dep’t of Human Servs., 727 S.W.2d at 533.
    10
    Because the evidence concerning Subsections (D) and (E) is interrelated, we
    address these issues together. See In re M.R.J.M., 
    280 S.W.3d 494
    , 503 (Tex. App.—
    Fort Worth 2009, no pet.) (op. on reh’g); see also Vann v. Gaines, No. 02-06-00148-CV,
    
    2007 WL 865870
    , at *1 (Tex. App.—Fort Worth Mar. 22, 2007, no pet.) (mem. op.)
    (addressing interrelated issues together).
    14
    Endangerment under Subsection (D) arises from the child’s environment, but a
    parent’s conduct can contribute to an endangering environment. In re J.T.G.,
    
    121 S.W.3d 117
    , 125 (Tex. App.—Fort Worth 2003, no pet.). “[A]busive or violent
    conduct by a parent or other resident of a child’s home may produce an environment
    that endangers the physical or emotional well-being of a child.” Id.; see J.V.,
    
    2015 WL 4148500
    , at *3 (“Inappropriate, abusive, or unlawful conduct by persons
    who live in the child’s home or with whom the child is compelled to associate on a
    regular basis in his home is a part of the ‘conditions or surroundings’ of the child’s
    home under section 161.001(b)(1)(D).”). To prove endangerment, it is not necessary
    that a parent’s conduct be directed at the child or that the child actually suffer injury.
    J.T.G., 121 S.W.3d at 125. A parent’s decision to continue living with someone who
    has committed instances of domestic violence may support an endangerment finding
    under Subsection (D). See In re M.V., 
    343 S.W.3d 543
    , 547 (Tex. App.—Dallas 2011,
    no pet.). We may consider a parent’s endangering conduct toward other children to
    determine whether the parent engaged in behavior that endangered the child at issue.
    See In re S.H., No. 02-17-00188-CV, 
    2017 WL 4542859
    , at *11 (Tex. App.—Fort
    Worth Oct. 12, 2017, no pet.) (mem. op.). Additionally, Subsection (D) permits
    termination based upon a single act or omission. Jordan v. Dossey, 
    325 S.W.3d 700
    , 721
    (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
    Under Subsection (E), the relevant inquiry is whether evidence exists that the
    endangerment of the child’s physical well-being was the direct result of the parent’s
    15
    conduct, including acts, omissions, or failures to act. In re T.T.F., 
    331 S.W.3d 461
    , 483
    (Tex. App.—Fort Worth 2010, no pet.); accord In re E.M., 
    494 S.W.3d 209
    , 221 (Tex.
    App.—Waco 2015, pets. denied). Either the parent’s conduct or the conduct of a
    person with whom the parent knowingly leaves a child that endangers his or her
    physical or emotional well-being is sufficient. E.M., 
    494 S.W.3d at 221
    . Termination
    under Subsection (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.
    M.R.J.M., 
    280 S.W.3d at 502
    .
    Applying the standards articulated above, we conclude that legally and factually
    sufficient evidence supports the trial court’s findings under Subsections (D) and (E)
    that Mother endangered M.G. See 
    Tex. Fam. Code Ann. § 161.001
    (b)(1)(D), (E). First,
    Mother’s living situation created a dangerous situation for M.G. As detailed above,
    Mother was unable to present a lease or a housing agreement with her name on it as
    required by her service plan. 11 Because Mother lived with Father but was not married
    to him and was not named on his apartment lease, her living situation was subject to
    Father’s whims—and was thus unstable. 12 The instability of this situation is
    11
    Nothing in the record suggests that Mother’s failure to present a lease or
    housing agreement with her name on it was due to economic disadvantage. See 
    Tex. Fam. Code Ann. § 161.001
    (c). To comply with her service plan, Mother only needed
    to have her name added to the existing lease on the apartment she shared with Father;
    there was no explicit requirement that she obtain additional or separate housing.
    The Department argues that Mother’s living situation created a dangerous
    12
    environment for M.G. not only because it was unstable but also because Mother lived
    16
    demonstrated by the fact that Father had already kicked Mother out of the apartment
    at least twice following arguments, leaving her with nowhere to go.
    Second, the record shows that Mother failed to cooperate with the
    Department. See In re T.J., No. 05-22-00954-CV, 
    2023 WL 1988838
    , at *9 (Tex.
    App.—Dallas Feb. 14, 2023, no pet.) (mem. op.) (holding that evidence showing
    “[m]other failed to cooperate with the Department and failed to participate in the
    services she needed to complete in order to preserve her relationship with the
    children” supported a finding of endangerment). Mother lied when first approached
    by the Department’s investigator at the hospital, telling her that Father was her
    husband and that he was not present for M.G.’s birth because he was working when,
    in reality, Father was married to another woman and was not present because he had
    with Father—a man with an extensive criminal history, including multiple convictions
    for family violence. See, e.g., In re L.W., 
    609 S.W.3d 189
    , 200 (Tex. App.—Texarkana
    2020, no pet.) (“[A]busive or violent conduct by a parent or other resident of a child’s
    home can produce an environment that endangers the physical or emotional well-
    being of a child.” (quoting In re B.E.T., No. 06-14-00069-CV, 
    2015 WL 495303
    , at *5
    (Tex. App.—Texarkana Feb. 5, 2015, no pet.) (mem. op.))). But, as Mother points
    out, although the Department asked the trial court to terminate Father’s parental
    rights on Subsection (D) and (E) grounds, the trial court declined to do so, which
    suggests that the trial court determined that Father’s mere presence in the home
    would not be sufficient to create a dangerous environment. We note that the trial
    court’s refusal to find that the Department had satisfied its burden to show that
    Father’s parental rights should be terminated under Subsections (D) or (E) does not
    equate to a positive finding that Father’s presence in the home posed no danger to
    M.G. See, e.g., Phila. Indem. Ins. v. White, 
    490 S.W.3d 468
    , 488 (Tex. 2016). However,
    because the record contains other sufficient evidence to support termination of
    Mother’s parental rights under Subsections (D) and (E), we need not determine
    whether Mother’s continued cohabitation with Father may be considered as additional
    evidence of endangerment.
    17
    been incarcerated for domestic abuse against his wife. In addition, on a few occasions,
    Mother denied the permanency specialist access to her home, preventing the specialist
    from fully assessing whether the home was safe for M.G. Mother also refused—
    without explanation—to discuss her psychological evaluation with the permanency
    specialist, thereby impeding the Department’s efforts to assess and address Mother’s
    mental health problems.
    Third, as detailed above, Mother failed to complete her service plan. See T.J.,
    
    2023 WL 1988838
    , at *9; see also In re A.J.A.D., No. 01-22-00521-CR, 
    2022 WL 17813763
    , at *8 (Tex. App.—Houston [1st Dist.] Dec. 20, 2022, pet. denied) (mem.
    op.) (noting that “a parent’s voluntary failure to engage in or complete services can
    constitute evidence of child endangerment, particularly to the extent the parent’s
    failure to do so indicates that past endangering conduct remains unaddressed and is
    likely to persist in the future”); In re R.F., 
    115 S.W.3d 804
    , 811 (Tex. App.—Dallas
    2003, no pet.) (providing that as part of the endangering-conduct analysis, a court may
    consider a parent’s failure to complete a service plan). Mother’s service plan was
    primarily designed to address her mental health issues; thus, her failure to complete
    her services and to demonstrate that she was taking her prescribed medication
    strongly supports the trial court’s endangerment findings.13 See In re L.L.F., No. 02-11-
    13
    This case is distinguishable from In re C.E. in which we held that the evidence
    was insufficient to support termination under Subsection (E) and Section 161.003
    because there was no “competent evidence . . . of how the [parent’s] mental health
    diagnosis le[d] to [her] concerning behavior.” No. 02-22-00285-CV, 
    2023 WL 170762
    ,
    18
    00485-CV, 
    2012 WL 2923291
    , at *15 (Tex. App.—Fort Worth July 19, 2012, no pet.)
    (mem. op.) (recognizing that “a parent’s failure to take medication can create an
    environment or expose a child to an environment that endangers the child’s
    emotional or physical well-being”); In re K.G., 
    350 S.W.3d 338
    , 355 (Tex. App.—Fort
    Worth 2011, pet. denied) (“[T]he trial court could have chosen to believe that
    Mother’s . . . failure to . . . take steps to treat her mental health issues demonstrated an
    inability to provide [the child] with a safe environment.”); see also In re E.G., No. 07-
    20-00098-CV, 
    2020 WL 3477176
    , at *1 (Tex. App.—Amarillo June 25, 2020, no pet.)
    (mem. op.) (listing mother’s failure to “complete[] a number of her court-ordered
    services aimed at improving her mental health and parenting skills” as evidence
    supporting termination under Subsections (D) and (E)).
    In sum, there was evidence that Mother failed to secure stable housing, did not
    fully cooperate with the Department, and did not comply with her service plan.
    Giving due deference to the trial court’s findings, see H.R.M., 209 S.W.3d at 108, we
    find that the evidence is legally and factually sufficient to support termination of
    at *15–19 (Tex. App.—Fort Worth Jan. 12, 2023, pet. filed) (mem. op.). Like C.E.,
    much of the evidence in this case concerning how Mother’s mental health issues
    might affect her ability to parent M.G. is speculative. However, unlike the mother in
    C.E., who completed all of her required services, including attending therapy sessions,
    see id. at *17, *21, Mother only made “minimal progress” on her service plan. Her
    failure to take steps that the Department believed were necessary to ensure a safe
    environment for M.G., including addressing her mental health issues and taking her
    prescribed medication consistently, supports termination under Subsections (D) and
    (E). See T.J., 
    2023 WL 1988838
    , at *9; A.J.A.D., 
    2022 WL 17813763
    , at *8; R.F., 115
    S.W.3d at 811.
    19
    Mother’s parental rights under Subsections (D) and (E). See 
    Tex. Fam. Code Ann. § 161.001
    (b)(1)(D), (E). Accordingly, we overrule Mother’s first and second issues.
    C.     Best Interest Under Section 161.001(b)(2)
    In her fifth issue,14 Mother contends that the evidence is legally and factually
    insufficient to show that termination of her parental rights to M.G. is in the child’s
    best interest. There is a strong presumption that keeping a child with a parent is in the
    child’s best interest. In re R.R., 
    209 S.W.3d 112
    , 116 (Tex. 2006). We review the entire
    record to determine the child’s best interest. In re E.C.R., 
    402 S.W.3d 239
    , 250 (Tex.
    2013). The same evidence may be probative of both a Subsection (b)(1) predicate
    ground and best interest. 
    Id. at 249
    ; C.H., 89 S.W.3d at 28. Factors that the trier of
    fact in a termination case may also use in determining the best interest of the child
    include (1) the desires of the child, (2) the emotional and physical needs of the child
    now and in the future, (3) the emotional and physical danger to the child now and in
    the future, (4) the parental abilities of the individuals seeking custody, (5) the
    programs available to assist these individuals to promote the best interest of the child,
    (6) the plans for the child by these individuals or by the agency seeking custody, (7)
    the stability of the home or proposed placement, (8) the acts or omissions of the
    parent that may indicate that the existing parent–child relationship is not a proper
    14
    We address Mother’s fifth issue next because its disposition, coupled with our
    disposition of Mother’s first three issues, obviates the need to address Mother’s fourth
    issue. See Tex. R. App. P. 47.1; see also Giant Res., LP v. Lonestar Res., Inc., No. 02-21-
    00349-CV, 
    2022 WL 2840265
    , at *4 (Tex. App.—Fort Worth July 21, 2022, no pet.).
    20
    one, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 
    544 S.W.2d 367
    , 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249 (stating that in
    reviewing a best interest finding, “we consider, among other evidence, the Holley
    factors”); E.N.C., 384 S.W.3d at 807. These factors are not exhaustive, and some
    listed factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore,
    undisputed evidence of just one factor may be sufficient to support a finding that
    termination is in the child’s best interest. Id.
    We hold that the evidence is legally and factually sufficient to show that
    termination of Mother’s parental rights to M.G. is in the child’s best interest. The trial
    court could have reasonably found that the evidence discussed above that supports
    the predicate-ground findings under Subsections (D), (E), and (O) also reflects that
    termination is in M.G.’s best interest. See E.C.R., 402 S.W.3d at 249; C.H., 89 S.W.3d
    at 28; see also In re C.V., 
    531 S.W.3d 301
    , 305 (Tex. App.—Amarillo 2017, pet. denied)
    (“Unchallenged predicate-ground findings are binding and can support the best
    interest finding.” (first citing In re K.M., No. 07-16-00120-CV, 
    2016 WL 3660076
    , at
    *3 (Tex. App.—Amarillo June 29, 2016, no pet.) (mem. op.); and then citing In re
    E.A.F., 
    424 S.W.3d 742
    , 750 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)));
    cf. In re J.P.-L. 
    592 S.W.3d 559
    , 582–88 (Tex. App.—Fort Worth 2019, pet. denied)
    (discussing caselaw on competence and capacity and pointing out the impact a
    parent’s mental health issues can have on a child). In addition, the record shows that
    Mother has had four children, all of whom have been removed from her care, see In re
    21
    B.K.D., 
    131 S.W.3d 10
    , 22 (Tex. App.—Fort Worth 2003, pet. denied) (per curiam)
    (considering parent’s CPS history as a factor in best interest analysis), and that M.G.’s
    foster parents have an appropriate home, are taking good care of M.G., and are
    adoption motivated, see C.H., 89 S.W.3d at 28 (noting that evidence about placement
    plans and adoption are relevant to child’s best interest); see also In re J.D., 
    436 S.W.3d 105
    , 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (considering the fact that
    child was being well cared for by foster parents as a factor in best interest
    determination). Furthermore, M.G.’s attorney ad litem supported the termination of
    Mother’s parental rights. Cf. In re G.H., No. 02-17-00193-CV, 
    2017 WL 4683925
    , at *9
    (Tex. App.—Fort Worth Oct. 19, 2017, no pet.) (mem. op.) (considering an attorney ad
    litem’s recommendation in a best-interest review).
    Considering all of the evidence discussed above and the remainder of the
    record, we conclude that the evidence is legally and factually sufficient to support the
    trial court’s finding that termination of Mother’s parental rights was in M.G.’s best
    interest. See 
    Tex. Fam. Code Ann. § 161.001
    (b)(2); A.B., 437 S.W.3d at 500; J.P.B., 180
    S.W.3d at 573. Accordingly, we overrule Mother’s fifth issue.15
    In her fourth issue, Mother challenges the legal and factual sufficiency of the
    15
    evidence to support termination under Family Code Section 161.003. See 
    Tex. Fam. Code Ann. § 161.003
    . Having overruled Mother’s other issues and thus having
    concluded that the evidence was sufficient to support termination under Section
    161.001(b), we need not address Mother’s fourth issue. See Tex. R. App. P. 47.1.
    22
    FATHER’S APPEAL: THE APPEAL IS FRIVOLOUS
    In Father’s appeal, his appointed appellate counsel has filed a motion to
    withdraw and brief in support of that motion in which he asserts that Father’s appeal
    is frivolous. 16 See Anders, 
    386 U.S. at
    744–45, 
    87 S. Ct. at 1400
    ; see also In re K.M.,
    
    98 S.W.3d 774
    , 776–77 (Tex. App.—Fort Worth 2003, order) (holding that Anders
    procedures apply in parental termination appeals). The brief meets the requirements
    of Anders by presenting a professional evaluation of the record and by demonstrating
    why there are no arguable grounds for appeal. Neither Father nor the Department
    filed a response to the Anders brief.
    Once an appellant’s court-appointed attorney files a motion to withdraw on the
    ground that the appeal is frivolous and fulfills the requirements of Anders, we must
    independently examine the record to determine if any arguable grounds for appeal
    exist. See Stafford v. State, 
    813 S.W.2d 503
    , 511 (Tex. Crim. App. 1991); Mays v. State,
    
    904 S.W.2d 920
    , 922–23 (Tex. App.—Fort Worth 1995, no pet.); see also In re P.M.,
    
    520 S.W.3d 24
    , 27 & nn.9–10 (Tex. 2016) (order). When analyzing whether any grounds
    16
    Although Father’s counsel asserts that the appeal is frivolous because there is
    sufficient evidence to support termination of Father’s parental rights under Section
    161.001(b)(1)(O) and (b)(2), he points out that the evidence is insufficient to support
    the trial court’s predicate-ground finding under Section 161.001(b)(1)(N) and
    therefore requests that we modify the trial court’s order to delete the Subsection (N)
    finding. As more fully discussed below, we agree that the evidence is insufficient to
    support the Subsection (N) finding and therefore grant Father’s counsel’s request to
    modify the trial court’s judgment. See Tex. R. App. P. 43.2(b).
    23
    for appeal exist, we consider the record, the Anders brief, and any pro se response. In re
    Schulman, 
    252 S.W.3d 403
    , 408–09 (Tex. Crim. App. 2008) (orig. proceeding).
    After carefully reviewing the record, we have determined that the evidence is
    insufficient to support the trial court’s predicate-ground finding under Subsection (N).
    To support termination of a parent’s rights under Subsection (N), a factfinder must
    find by clear and convincing evidence that, among other things, “the parent has not
    regularly visited or maintained significant contact with the child.” 
    Tex. Fam. Code Ann. § 161.001
    (b)(1)(N)(ii). As Father’s appellate counsel points out in his brief, the
    evidence in this case—including the testimony of the Department’s own witnesses—
    shows that Father regularly visited M.G. and maintained significant contact with her.
    Indeed, the Department did not even seek termination of Father’s parental rights on
    Subsection (N) grounds. Therefore, even though correcting this finding does not alter
    the final outcome of this case, we nonetheless “modify the trial court’s order to match
    the facts” by striking the unproven Subsection (N) predicate-ground finding. See In re
    A.O., No. 02-21-00376-CV, 
    2022 WL 1257384
    , at *13 (Tex. App.—Fort Worth
    Apr. 28, 2022, pet. denied) (mem. op.) (modifying termination order to remove
    erroneous reference to the mother’s indecency with a child even though “correcting
    this finding d[id] not alter the final outcome of th[e] case”); In re J.A., No. 04-20-
    00242-CV, 
    2020 WL 5027663
    , at *4 (Tex. App.—San Antonio Aug. 26, 2020, no pet.)
    (mem. op.) (modifying judgment to remove three predicate findings because “[t]he
    record show[ed], and the parties agree[d], that the Department pled and argued that
    24
    [the mother’s] parental rights should be terminated under only grounds (N), (O), and
    (P), not under grounds (D), (E), or (K)”); see also Tex. R. App. P. 43.2(b).
    Except for the modification to the termination order discussed above, we agree
    with counsel that Father’s appeal is wholly frivolous and without merit. See Bledsoe v.
    State, 
    178 S.W.3d 824
    , 827 (Tex. Crim. App. 2005). Because counsel does not show
    good cause for withdrawal independent from his conclusion that the appeal is
    frivolous, we deny the motion to withdraw. See P.M., 520 S.W.3d at 28; In re C.J., 
    501 S.W.3d 254
    , 255 (Tex. App.—Fort Worth 2016, pets. denied).
    CONCLUSION
    Having overruled Mother’s dispositive issues and having agreed with Father’s
    counsel that Father’s appeal is frivolous but that the evidence is insufficient to
    support the trial court’s predicate-ground finding under Section 161.001(b)(1)(N), we
    modify the trial court’s termination order to remove the unproven finding that
    termination of Father’s rights is appropriate under Section 161.001(b)(1)(N) and
    affirm as modified the trial court’s order terminating Mother’s and Father’s parental
    rights to M.G.
    /s/ Wade Birdwell
    Wade Birdwell
    Justice
    Delivered: June 15, 2023
    25