Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-26-00320-CV ___________________________ IN THE INTEREST OF C.M., A CHILD On Appeal from the 442nd District Court Denton County, Texas Trial Court No. 25-3360-442 Before Bassel, Womack, and Wallach, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION I. INTRODUCTION Appellants M.M. (Father) and W.W. (Mother) appeal the trial court’s final order terminating their parental rights to their child, Anna.1 In the first of his three issues, Father contends that because the trial court abused its discretion in finding that extraordinary circumstances authorized retention of the case on its docket under Texas Family Code § 263.401, the suit was automatically dismissed even though the trial court timely made its finding and extended the dismissal date, and in his second and third issues, he contends that the evidence is legally and factually insufficient to support termination of the parent–child relationship between Father and Anna on the three predicate-conduct grounds found by the jury. In six of her eight issues, Mother contends that the evidence is legally and factually insufficient to support the three predicate-conduct grounds found by the jury, and in her remaining two issues, she contends that the trial court’s jury charge contained erroneous instructions. We will hold that the trial court did not err in retaining the suit on its docket and that legally and factually sufficient evidence supported the termination of the parent–child relationships between Father and Anna and between Mother and Anna. We will also hold Mother did not preserve error as to the trial court’s jury charge. We 1 To protect the identity of the child subject to this case, we use aliases to refer to her, her sibling, and both parents. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8(b)(2). Anna has a sibling, Bob, who is not part of the underlying case but was born during its pendency. 2 will affirm the trial court’s order terminating both Father’s and Mother’s parental rights as to Anna. II. BACKGROUND In March 2025, Mother gave birth to Anna. At the hospital, both Mother and Anna tested positive for methamphetamine, amphetamine, and THC.2 Shortly after Anna was born, Mother was released from the hospital, and Anna was intubated and taken to the neonatal intensive care unit (NICU) of the hospital, where she spent approximately one month. Contemporaneous medical records indicate that Anna suffered from withdrawal symptoms. As a result of her prenatal exposure to methamphetamine and withdrawal symptoms resulting from it, Anna was small and hypersensitive to lights, sounds, and movement. Anna also suffered from hypertonia—an abnormal increase in muscle tone resulting in stiffness—in her neck, shoulders, spine, and arms, and she required additional care including occupational therapy and physical therapy. Contemporaneous hospital staff notes reflect that Mother often promised to visit the NICU to learn to care for Anna’s health issues but that she failed to do so or that, the few times she did return, she stayed only briefly. Father did not visit the 2 “THC” refers to tetrahydrocannabinols, compounds found in the cannabis sativa L. plant, particularly to the delta-9 isomer. Tex. Dep’t of State Health Servs. v. Sky Mktg. Corp., 733 S.W.3d 689, 694 (Tex. 2026). Any part or derivative of the plant with a concentration of not more than 0.3 percent delta-9 THC on a dry weight basis is excluded from the definition of “marihuana” under the Texas Controlled Substances Act. See Tex. Health & Safety Code § 481.002(26). 3 NICU.3 Neither Mother nor Father completed the “rooming in” procedure, which required them to stay overnight with Anna to learn the specialized feeding procedures and other specialized care she required. A. Removal and Efforts to Return Anna to the Family On April 4, 2025, the State, through the Department of Family and Protective Services (DFPS), filed its original petition for protection, conservatorship, and termination of the parent–child relationships between Mother and Anna and between Father and Anna. When Anna was discharged from the NICU, DFPS took possession of her and placed her into foster care. As part of the removal procedure, the trial court ordered both Mother and Father to participate in family strength needs assessments and in service plans. The plans included regular drug testing, visitation with Anna, screenings and classes, and the avoidance of use of controlled substances and criminality. Mother and Father participated in the assessments and service plans to varying degrees. 1. Drug Testing and Use of Controlled Substances In December 2024, while she was still pregnant with Anna, Mother had an emergency that necessitated she visit the hospital. At the hospital, Mother tested positive for amphetamines. In the hospital after Anna was born, Mother submitted to 3 Mother claimed that Father visited twice. Father agreed that he had visited either once or twice but added that he never spoke to any medical staff because no doctor was ever available. Contemporaneous hospital staff records indicate that he did not visit. 4 drug testing by hair follicle analysis and urinalysis. Both test methods returned positive results for methamphetamine. Before the trial date, Mother never reported for or submitted to a drug test as part of her service plan. In September 2025, both Mother and Father were present for the initial permanency hearing. The trial court ordered both parents to immediately submit to hair follicle and urinalysis drug testing at a facility near the court’s location. Neither Mother nor Father obeyed the order or submitted to testing at the facility. In late February 2026, Mother gave birth to Bob. At the hospital, Bob and Mother both tested positive for methamphetamine. At trial in April 2026, Mother stated that her “clean date”—the date she last used controlled substances—was March 21, 2026. Although he was also required by the plan to test at least monthly, Father never submitted to any testing before trial. 2. Visitation During the removal, Father attended a single visit with Anna on December 26, 2025, from which he believed he had formed a strong bond with her and could have her returned home. Father was not aware of any of Anna’s health issues, and he believed she was healthy and required no special care. Mother visited Anna approximately weekly, missing fewer than nine visits over the removal period. She was late to the majority of the two-hour visits by between ten and thirty minutes. For the last month of the removal, in March and April 2026, Mother was on time for and attended all her visitations with Anna. 5 3. Screenings and Classes In the months following Anna’s removal, Mother completed a parenting class, a women’s wellness class, and a family strengths and needs assessment. In February 2026, weeks before Bob was born, Mother completed a substance abuse assessment but did not indicate to the assessor that she was pregnant or that she had used or was using amphetamine or methamphetamine. In February and March 2026, Mother completed four counseling sessions and attended Narcotics Anonymous, Alcoholics Anonymous, or both4 meetings. In late April 2026, Mother completed a psychiatric evaluation. Mother later argued that her prior efforts to complete services had been stymied by postpartum depression. Father was aware of the temporary orders issued by the court that required him to (1) complete services and classes including a family strengths and needs assessment, (2) work with Our Communities Our Kids (OCOK) to develop a service plan, (3) refrain from using illegal drugs or alcohol, (4) engage in a drug and alcohol assessment and submit to drug and alcohol testing, (5) pay child support for Anna, (6) work with DFPS to develop behavioral goals, (7) submit to psychological and psychosocial evaluations, (8) engage in counseling, (9) attend parenting classes, (10) refrain from criminal activity, and (11) maintain safe and stable housing and 4 At trial, the attorney for DFPS asked Mother if she “ever attend[ed] any NA or AA meetings.” Mother said “yes,” that she had attended approximately thirty over the course of the removal, but she did not specify which ones. 6 employment. Asked about his progress at trial, Father said he concentrated only on employment, as “that’s what [he] felt was more important than doing all the classes.” 4. Criminality Before the removal, Father had served a three-year sentence in state jail, followed by one year’s release on parole, for the offenses of possession of a controlled substance, burglary of a habitation, and theft of a firearm. At trial, Father estimated that altogether he had been convicted “about six times” for the offense of burglary of a vehicle during his lifetime, not including the March 2026 offense for which he was then currently under indictment.5 During the removal period, Father was arrested four times for possession of a controlled substance.6 On October 20, 2025, Father was arrested for possession of methamphetamine and marijuana. Mother was a passenger in the vehicle when it was stopped. 5 On March 3, 2026, days after Bob was born, Father was arrested for burglary of a vehicle with two or more previous convictions—Father had three previous convictions for burglary of a motor vehicle in Denton and Dallas Counties in 2022— and for theft of copper. See Tex Penal Code §§ 30.04, 31.03(e)(4)(F). 6 At trial, Father repeatedly invoked his Fifth Amendment right not to testify about the seven times he was arrested during the removal period. In a civil matter, including a termination of the parent–child relationship, the factfinder may draw negative inferences from invocations of the Fifth Amendment privilege against self-incrimination. See Tex. R. Evid. 513(d); Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007); In re N.H., No. 02-22-00157-CV, 2022 WL 4374638, at *11 (Tex. App.— Fort Worth Sept. 22, 2022, no pet.) (mem. op.); In re G.H., No. 02-26-00068-CV, 2026 WL 2066084, at *4 (Tex. App.—Fort Worth July 13, 2026, no pet.) (mem. op.). 7 On November 15, 2025, Mother was driving a car in which Father was a passenger. Police stopped the vehicle, called a K-9 unit that alerted positive, and searched the vehicle for controlled substances. In a purse behind the driver’s seat, police located a bag containing a white powder that tested positive as methamphetamine.7 Mother and Father were arrested. On December 30, 2025, and January 10, 2026, Father was arrested for possession of a controlled substance along with theft-related8 offenses B. Pretrial, First Trial Setting, and Extension In February 2026, Mother filed a motion to extend the trial date. The motion contained no express explanation of what circumstances she believed warranted an extension, but it stated that Mother requested the extension “[f]or good cause shown . . . to allow additional time to complete her services in this cause,” which she alleged was “in the best interest of [Anna].” On March 13, 2026, the trial court held a hearing to consider the motion to extend the trial date and consider any other pretrial matters. All parties were 7 Mother pled her Fifth Amendment right against self-incrimination and declined to answer when asked about the K-9 unit, the search, and the discovery of methamphetamine in a purse in the vehicle. 8 Father was arrested in December for theft of copper, and in January for burglary of a vehicle. 8 represented by counsel, and Mother was present in person.9 The trial court stated that it would grant the motion to extend the trial date if it received word by the following Friday—the last business day before the scheduled trial date—that Mother had enrolled in an intensive, inpatient rehabilitation program. Father’s attorney did not object to the proposal. Ten days later, after Mother failed to enroll in the intensive inpatient program, the trial court prepared to begin the jury trial and summoned a venire. Mother and Father10 appeared in person and were represented by counsel. During the recess as the venire assembled for voir dire, Mother moved the trial court to reconsider her motion to extend time, as she had spent the week attempting to resolve issues that had prevented her from enrolling in the recovery program. Among other issues, Mother’s application was not prioritized because she reported on the intake form that she had never used methamphetamine. The Department and Anna’s attorney ad litem objected to the extension and argued against it, but Father’s attorney did not. The trial court tentatively granted the motion to reconsider the extension, holding: I understand the State’s position. I understand the ad item’s position, but if I have the opportunity to get her help, I’m gonna give her that opportunity. 9 Father was incarcerated during this pretrial hearing and was not personally present. 10 Father had been incarcerated in the Tarrant County Jail at the time. The trial court issued a bench warrant for his appearance. 9 So, here’s the thing. You must have landed in the right court. You are going to go directly from here to [the facility]. When you get to [the facility], you’re gonna get your phone out and you’re gonna take a little selfie with the [facility’s] sign. You’re gonna go in. . . . I’m just telling you, you leave before you’re supposed to leave, I will call a jury as soon as I can. I will not wait the six months, so it’s when -- I will clear my schedule so that I can have a jury trial, and then I will work with them on their schedule, so it is up to you to get help. Father’s attorney then volunteered to receive Mother’s text with the “little selfie” of the facility’s sign required by the trial court and to distribute it to the clerk and to the other parties. The trial court recessed the trial for the morning, pending receipt and distribution of that information and Mother’s enrollment in the facility. After Mother reported her arrival at the facility, the trial court noted that because time was allotted to proceed on the trial, unless Father chose to go forward that day, the trial would be postponed as to both parents. Father agreed to the postponement. Addressing Father, the court said, “We will also grant an extension in your[ case] because we’re gonna try them all together. Hopefully we won’t have to try them. Hopefully she gets the help she needs.” Father replied, “Yes. Do I get that treatment too or no, if I need help?” After conferring with Father’s attorney on the status of his warrant holds, the trial court informed Father that if he needed and wanted help, the trial court would “absolutely . . . give [him] that opportunity.” Father’s attorney asked that the order include the opportunity for Father to enroll in drug court or in inpatient drug treatment. 10 The following week, the trial court issued a written order granting the extension “due to Respondent Mother seeking and submitting to in-patient drug treatment” and finding “that extraordinary circumstances [ ] necessitate the child remaining in the Temporary Managing Conservatorship of the Department.” The order included notice to Mother and Father that if Mother left the in-patient facility before being discharged for completion of the program, the trial court could schedule a jury trial at its discretion.11 The order set a dismissal date 180 days after the trial date, on September 19, 2026. On March 28—five days after she checked herself in—Mother checked herself out of the inpatient treatment facility. On April 14, 2026, Father checked himself into the Salvation Army Adult Rehabilitation Center. He checked himself out four days later. C. The Jury Trial The trial court scheduled a jury trial and began voir dire on April 27, 2026. Mother and Father were present in person12 and represented by counsel, as were counsel for DFPS, Anna’s ad litem attorney, and an attorney for the court-appointed special advocate. Father’s attorney signed the order, approving it as to form. 11 Father was on bond-release during the trial. 12 11 At trial, DFPS called as witnesses the director of the Salvation Army Adult Rehabilitation Center, the family’s OCOK caseworker, Anna’s foster mother, Anna’s volunteer court-appointed special advocate, Mother, and Father. After hearing two days’ testimony, the jury returned a verdict, finding by clear and convincing evidence that Mother and Father had each engaged in three forms of prohibited statutory conduct, see Tex. Fam. Code § 161.001(b)(1)(D), (E), (O) (Mother), (D), (E), (N) (Father), and that termination of the parent–child relationship between Mother and Anna and between Father and Anna was in Anna’s best interest. See id. § 161.001(b)(2). The trial court made express findings that DFPS made reasonable efforts to return Anna to her parents. On May 20, 2026, the trial court recalled the parties and entered the order of termination on the record. D. The Appeal Father timely appealed. After he timely filed his appellate brief, Mother’s appellate counsel filed a motion to pursue an out-of-time appeal. We abated the case as to Mother for additional trial court proceedings to determine whether Mother’s appellate attorney had rendered ineffective assistance depriving her of her right to pursue an appeal. See In re J.D.H., 738 S.W.3d 522, 524 (Tex. 2026). The trial court found that Mother desired to prosecute her appeal but that Mother’s counsel had rendered ineffective assistance, and it appointed new counsel who filed an out-of-time appeal. 12 III. DISCUSSION In three issues, Father challenges whether the trial court’s order granting Mother’s motion to extend was sufficient to avoid automatic dismissal of the suit and whether the evidence was legally and factually sufficient to support the jury’s predicate-conduct findings underlying termination of Father’s parental rights. In eight issues, Mother challenges whether the evidence supporting the termination of her parental rights was legally and factually sufficient under three conduct-based statutory grounds, whether the trial court’s jury charge allowed a finding by an improper evidentiary standard, and whether the charge included an improper comment on the weight of the evidence. We will address the jurisdictional question first, the evidentiary sufficiency questions second, and the jury charge questions third. A. Extension of the Trial Court’s Jurisdiction In his first issue, Father argues that the trial court’s order terminating the parent–child relationship between Father and Anna was void because trial commenced more than one year after the removal without adequate evidence to support the trial court’s findings justifying extending the dismissal date. See Tex. Fam. Code § 263.401. “Prompt resolution of parental-termination proceedings is so imperative a principle that our legislature has taken the extraordinary step of divesting trial courts of jurisdiction over cases that do not proceed to trial within a year.” In re C.S., 13 740 S.W.3d 448, 450 (Tex. 2026) (citing In re G.X.H., 627 S.W.3d 288, 292 (Tex. 2021)). Unless the trial court has commenced the trial on the merits or granted an extension as prescribed in the statute, the court’s jurisdiction over the suit is terminated, and the suit is automatically dismissed without a court order on the first Monday after the first anniversary of the date the court rendered the initial removal order. Tex. Fam. Code § 263.401(a); C.S., 740 S.W.3d at 450. The automatic dismissal may be delayed by extraordinary circumstances, but only if the trial court properly grants a limited extension before the one-year deadline. Tex. Fam. Code § 263.401(b). The requirement that a trial court render an order within the first year after removal is jurisdictional and may be raised for the first time on appeal. C.S., 740 S.W.3d at 450–51 In an order extending the dismissal date, the trial court must find (1) that extraordinary circumstances necessitate the child’s remaining in the temporary managing conservatorship of DFPS and (2) that continuing the appointment of DFPS as temporary managing conservator is in the best interest of the child. In re J.S., 670 S.W.3d 591, 593 (Tex. 2023) (citing Tex. Fam. Code § 263.401(b)). When considering whether extraordinary circumstances dictate an extension of the temporary conservatorship when the trial court has ordered a parent to complete a substance abuse treatment program, the court must consider whether the parent has made a good faith effort to successfully complete the program. Tex. Fam. Code § 263.401(b-2). Further, a court must find that extraordinary circumstances 14 necessitate an extension if: “(1) a parent of a child has made a good[-]faith effort to successfully complete the service plan but needs additional time; and (2) on completion of the service plan the court intends to order the child returned to the parent.” Id. § 263.401(b-3). Generally, we review a trial court’s decision to grant or deny an extension under Section 263.401 for an abuse of discretion. See In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth 2008, pet. denied). The initial removal in this case was on April 4, 2025. The original dismissal date was April 6, 2026. On February 9, 2026, Mother moved to extend the dismissal deadline. After a hearing, the trial court took the motion under advisement with intent to reconsider it if Mother demonstrated she had enrolled in an inpatient drug counseling program. On March 23, Mother moved the court to again take up the motion. On that day, with a reporter present, Father joined in asking for additional time to complete services, and the trial court orally granted the motion as to both parents. On April 2, 2026, the trial court rendered a written order reflecting its earlier oral pronouncement. Because the trial court granted the motion to extend time and issued its order before the mandatory expiration of its jurisdiction, the order was timely. See Tex. Fam. Code § 263.401(b); C.S., 740 S.W.3d at 455 (holding that an order extending jurisdiction under Section 263.401 must be made orally in the presence of the court reporter or in writing); J.S., 670 S.W.3d at 603. But Father nevertheless contends that the case was automatically dismissed. The trial court’s written order included a finding that “Mother’s Motion for Extension 15 of the Dismissal date is granted due to [Mother] seeking and submitting to [inpatient] drug treatment, and that extraordinary circumstances necessitate the child remaining in the Temporary Managing Conservatorship of the Department” and that the extension was in Anna’s best interest. Father contends that no evidence supported the extraordinary circumstance finding; thus, the order did not operate to extend the automatic dismissal date. Assuming Father can raise this argument for the first time on appeal, we disagree.13 Father is correct that a trial court does not abuse its discretion in denying a Section 263.401 motion based upon a parent’s delayed participation in a parenting plan until the weeks before trial, without more, because the consequences of the parent’s own poor choices do not generally constitute extraordinary circumstances. See In re M.S., 602 S.W.3d 676, 680 (Tex. App.—Texarkana 2020, no pet.). However, the record in this case reflects that the delay resulted from more than mere poor parental choices. See id. While Mother’s and Father’s participation in services and programs had been lackluster and sporadic for most of Anna’s removal, after Bob’s birth and removal, Mother began to make progress and voluntarily sought out an 13 Although the Texas Supreme Court has held that the extraordinary circumstances finding is not jurisdictional, J.S., 670 S.W.3d at 603–04, it noted in In re C.S that “[p]erhaps we have gone too far in that characterization; for purposes of today’s case, we assume that we were correct.” 740 S.W.3d at 451. Although we are bound by Texas Supreme Court precedent that has not been overruled, see Scoresby v. Santillan, 287 S.W.3d 319, 324 (Tex. App.—Fort Worth 2009), aff’d, 346 S.W.3d 546 (Tex. 2011), in an abundance of caution, we address Father’s argument. 16 inpatient treatment program in which she could enroll. She toured the facility and spent much of a week trying to get admitted to it. The trial court delayed beginning jury trial to give Mother a final opportunity to enroll in the program. Father, who had been hostile and resistant to receiving services and working toward Anna’s return, also expressed interest in receiving treatment. The trial court deemed these circumstances to be extraordinary. Father argues that the trial court’s extension was not mandated by Section 263.401(b-3) and so was granted in error. For this proposition, Father argues that he had made no good faith attempt to complete his service plan and that “it can be inferred that all the aligned governmental parties were opposed to returning the child” to him. However, while Section 263.401(b-3) mandates a trial court grant an extension in one circumstance, “it does not foreclose finding extraordinary circumstances in other situations and does not purport to demarcate the outer boundary of circumstances that may be extraordinary.” In re H.S., No. 24-0307, 2026 WL 1614496, at *6 (Tex. June 5, 2026). In this case, Mother had experienced a traumatic change in circumstance with Bob’s removal and her post-partum depression, and she had exerted a clear, good-faith effort to complete a service directly related to the reason for Anna’s—and Bob’s—removal, and Father also expressed uncharacteristic interest in receiving services after having had a contentious attitude toward the court for the duration of the removal and after having experienced the same traumatic second removal. The 17 trial court did not abuse its discretion in finding these circumstances to have been exceptional. See In re X.M.B.E., 706 S.W.3d 714, 724 (Tex. App.—Eastland 2025, no pet.) (holding extraordinary circumstances supported an extension when Mother made genuine attempts to complete her service plan requirements after traumatic events caused her to move to try to improve her living situation). Mother had made a good faith effort to complete her service plan at the eleventh hour after the removal of her second child. Father’s in-court request to enroll in drug court or to also receive inpatient drug treatment may have appeared to constitute a good faith effort to the trial court. We cannot substitute Father’s impression of his own credibility when making the request in place of the trial court’s, any more than we could substitute our own. See In re J.W., 645 S.W.3d 726, 741 (Tex. 2022); In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005). Because the trial court did not abuse its discretion in finding that exceptional circumstances justified extending Anna’s removal, we overrule Father’s first issue. B. Evidentiary Sufficiency Supporting Statutory Termination Grounds 1. Standard of Review 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 18 (2) that termination is in the child’s best interest.14 Tex. Fam. Code § 161.001(b)(2); 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 § 101.007; Z.N., 602 S.W.3d at 545. Thus, when reviewing the sufficiency of the evidence to support a termination finding, we ask whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. Z.N., 602 S.W.3d at 545. Both legal and factual sufficiency turn on this question; the distinction between the two sufficiency analyses “lies in the extent to which disputed evidence contrary to a finding may be considered” in answering the question. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). In our legal sufficiency analysis, we “look at all the evidence in the light most favorable to the finding,” assuming that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so and disregarding all evidence that a reasonable factfinder could have disbelieved. Z.N., 602 S.W.3d at 545; A.C., 560 S.W.3d at 630–31. Factual sufficiency, however, requires “weighing disputed evidence contrary to the finding against all the evidence favoring the finding” 14 Neither Mother nor Father challenge the sufficiency of the evidence supporting the jury’s best-interest finding, so we do not address it here. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re K.M., No. 01-25-00858-CV, 2026 WL 663809, at *2 (Tex. App.—Houston [1st Dist.] Mar. 10, 2026, no pet.) (mem. op.); In re E.F.K., No. 01-24-00120-CV, 2024 WL 3417138, at *6 (Tex. App.—Houston [1st Dist.] July 16, 2024, no pet.) (mem. op.). 19 to determine if, “in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true.” A.C., 560 S.W.3d at 630–31; see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“When the factual sufficiency of the evidence is challenged, only then is disputed or conflicting evidence under review.”). The factfinder is the sole judge of the witnesses’ credibility and demeanor. J.O.A., 283 S.W.3d at 346. Legal and factual sufficiency determinations overlap because factually sufficient evidence is necessarily legally sufficient. In re H.C., No. 02-23-00477-CV, 2024 WL 1561513, at *4 (Tex. App.—Fort Worth Apr. 11, 2024, no pet.) (mem. op.); In re A.O., No. 02-21-00376-CV, 2022 WL 1257384, at *8 (Tex. App.—Fort Worth Apr. 28, 2022, pet. denied) (mem. op.). Therefore, and because both Mother and Father challenge both factual and legal sufficiency, we will conduct a consolidated review. See H.C., 2024 WL 1561513, at *4 (doing same); A.O., 2022 WL 1257384, at *8. 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. In re N.G., 577 S.W.3d 230, 235, 237 (Tex. 2019). Accordingly, we address the jury’s endangerment findings first. See In re C.W., No. 02-21-00252-CV, 2022 WL 123221, at *3 n.5 (Tex. App.—Fort Worth Jan. 13, 2022, no pet.) (mem. op.); In re J.B., No. 02-21-00239-CV, 2021 WL 6144074, at *20 (Tex. App.—Fort Worth Dec. 30, 2021, pet. denied) (mem. op.). 20 The relevant timeframe for evaluating Subsection (D) is before the child’s removal. J.W., 645 S.W.3d at 749. The conduct to be examined under Subsection (E) includes what the parent did both before and after the child was born because a course of conduct must be established. In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.— Texarkana 2013, pet. denied). To prove endangerment under Subsection (D), the State must prove that a parent has knowingly placed the child or knowingly allowed the child to remain in conditions or surroundings that endanger her physical or emotional well-being. See Tex. Fam. Code § 161.001(b)(1)(D). Under Subsection (E), the relevant inquiry is whether the State has proved that the endangerment of the child’s physical well-being was the direct result of the parent’s conduct, including acts, omissions, or failure to act. See id. § 161.001(b)(1)(E). Although proof under Subsection (E) requires evidence of a voluntary, deliberate, and conscious course of conduct, it is not necessary that the conduct be directed at the child or that the child actually suffer injury. See J.O.A., 283 S.W.3d at 345; Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). 2. Sufficiency of the Evidence Supporting Termination as to Father Father argues that the evidence adduced at trial was legally and factually insufficient to support termination of the parent–child relationship between him and Anna on the conduct-based grounds under Subsections (D) and (E) of the Family Code. See Tex. Fam. Code § 161.001(b). 21 Father argues that because he never had physical possession of Anna, he cannot have knowingly placed or knowingly allowed her to remain in conditions or surroundings that endangered her physical or emotional well-being or engaged in conduct or knowingly placed her with persons who engaged in conduct that endangered her physical or emotional well-being. See Tex. Fam. Code § 161.001(b)(1)(D), (E). He further argues that there is factually insufficient evidence of a pattern of his drug use to demonstrate a substantial risk of harm to Anna. See In re R.R.A., 687 S.W.3d 269, 278 (Tex. 2024) (“While illegal drug use alone might not be sufficient to show endangerment, a pattern of drug use accompanied by circumstances that indicate related dangers to a child can establish a substantial risk of harm.”). In spite of being ordered to submit to monthly drug tests, Father submitted to none, which the jury could have presumed would have been positive. See D.T. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-18-00770-CV, 2019 WL 1526429, at *4 (Tex. App.—Austin Apr. 9, 2019, no pet.) (mem. op.) (stating that missed drug tests can be presumed to be positive); see also In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.— Houston [14th Dist.] 2009, no pet.) (noting that factfinder could reasonably infer that parent’s failure to submit to court-ordered drug screening indicated that she was avoiding testing due to ongoing drug use (citing In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.))). During the removal, Father was arrested three times for possession of controlled substances, both alone and in Mother’s 22 company. See In re J.P., No. 02-25-00437-CV, 2026 WL 405957, at *5 (Tex. App.— Fort Worth Feb. 12, 2026, pet. struck) (mem. op.); In re O.S., No. 02-24-00295-CV, 2024 WL 4778360, at *13 (Tex. App.—Fort Worth Nov. 14, 2024, pet. denied) (mem. op.) (holding methamphetamine use posed a danger to the child and endangered her emotional and physical needs); In re S.C., No. 02-18-00422-CV, 2019 WL 2455612, at *2–3 (Tex. App.—Fort Worth June 13, 2019, pet. denied) (mem. op.) (detailing chronic methamphetamine use supporting best interest finding in termination); In re D.F., No. 2-07-056-CV, 2008 WL 820368, at *7 (Tex. App.—Fort Worth Mar. 27, 2008, no pet.) (per curiam) (mem. op.) (similar). His arrests during the removal period were also part of an overall pattern of criminal activity that included arrests for burglary of a vehicle and theft of copper. Although mere imprisonment, standing alone, will not constitute sufficient grounds for involuntary termination, a parent’s criminal history—taking into account the nature of the crimes, the duration of incarceration, and whether a pattern of escalating, repeated convictions exists—can support a finding of endangerment. In re J.F.-G., 627 S.W.3d 304, 312–13 (Tex. 2021). In this case, Father had been released from three years’ incarceration within a year of Anna’s birth. He was then arrested seven times in her first year of life. His criminal record shows a pattern of escalating conduct, not an isolated incident, and he did not stop engaging in criminal conduct when either Anna or Bob was born. Id. Courts may consider a parent’s criminal record beginning before a child’s birth as evidence of an endangering course of 23 conduct. See In re N.L.S., 715 S.W.3d 760, 765 (Tex. 2025); J.F.-G., 627 S.W.3d at 314. That Father’s criminal activity continued after Anna’s birth underscores the concern. Considering the evidence in the light most favorable to the challenged finding, the jury could have reasonably formed a firm belief or conviction that Father’s conduct supported termination under both Subsections (D) and (E). The evidence supporting these termination grounds was therefore legally sufficient. See J.P., 2026 WL 405957, at *6. We now turn to a factual-sufficiency analysis of the termination under Subsections (D) and (E). Father argues that the evidence supporting the finding under Subsections (D) and (E) was factually insufficient because, although Mother used methamphetamine, he argues there is insufficient evidence that his drug use created an unsafe environment because he was ignorant of Mother’s drug use.15 The suitability of a child’s living conditions and the conduct of the parents or others in the home are relevant to a Subsection (D) inquiry. In re R.S.-T., 522 S.W.3d 92, 108–09 (Tex. App.—San Antonio 2017, no pet.). However, a father’s knowledge of a mother’s drug abuse during pregnancy, even if the child is removed without ever 15 Father argues that while a mother’s “illegal drug use during pregnancy may support a finding that the child’s surroundings endanger his or her physical or emotional well[-]being, that is not a reflection on Father.” For this proposition, he relies upon a single case, In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied). However, that case did not concern a child who was exposed to drugs prenatally; rather, the court found that after a father’s arrest for stealing copper wire, the father’s drug use—evinced, inter alia, by his failure to take drug tests—was evidence supporting a jury’s findings under Subsections (D) and (E). See id.