Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-25-00569-CV
IN THE INTEREST OF J.A.V. and J.B.V.
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2022-PA-00633 Honorable Raul Perales, Judge Presiding
Opinion by: Adrian A. Spears II, Justice
Sitting: Rebeca C. Martinez, Chief Justice Lori I. Valenzuela, Justice Adrian A. Spears II, Justice
Delivered and Filed: July 8, 2026
AFFIRMED AS MODIFIED
Lauren D. appeals the trial court’s order terminating her parental rights. She brings four
issues on appeal: (1) whether the trial court erred in failing to include findings pursuant to section
161.001(f) and (g) of the Texas Family Code; (2) whether the evidence is factually sufficient to
support findings pursuant to subsections (f) and (g); (3) whether the trial court terminated the
parent-child relationship based on a ground not pled by the Department; and (4) whether the
evidence is legally and factually sufficient to support the trial court’s finding pursuant to section
161.001(b)(1)(D). For the reasons stated below, we modify the trial court’s order terminating
Lauren D.’s parental rights to include the trial court’s supplemental findings pursuant to section
161.001(f) and (g) of the Texas Family Code. As modified, we affirm. 04-25-00569-CV
BACKGROUND
On April 21, 2022, the Texas Department of Family and Protective Services filed an
Original Petition for Protection of a Child, for Conservatorship, and for Termination in a Suit
Affecting the Parent-Child Relationship, seeking termination of Lauren D.’s parental rights to her
then almost three-year-old son J.A.V. and to her one-year-old daughter J.B.V. The Department
sought termination of Lauren D.’s parental rights based on subsections (D), (E), (K), (N), (O), and
(P). The Department also sought termination of the father’s parental rights. The parties entered
into a mediated settlement agreement in which they agreed the Department would be designated
permanent managing conservator and the parents would be designated possessory conservators
with monthly supervised visitation and weekly telephonic or virtual visitation. On September 19,
2023, the trial court signed the final order in a suit-affecting the parent-child relationship and,
noting the mediated settlement agreement between the parties, appointed the Department as
permanent managing conservator and the parents as possessory conservators. The trial court also
ordered the parents to pay child support.
On December 11, 2024, the Department filed an Original Petition to Modify Prior Order
in Suit Affecting the Parent-Child Relationship and again sought termination of the parents’ rights.
On January 7, 2025, the Department filed a First Amended Petition to Modify Prior Order in
SAPCR, seeking termination of Laura D.’s parental rights based on subsections (D), (E), and (O).
The bench trial commenced on August 19, 2025. At the time of trial, J.A.V. was six years-old and
J.R.V. was three years-old.
Gypsy Popplewell, who had been the conservatorship caseworker since June 2025, testified
that the Department became involved with the family based on unsanitary living conditions,
Lauren D.’s mental health concerns, and illegal drug use, in particular methamphetamine, by both
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parents. According to Popplewell, because there had been “a previous lengthy history of domestic
violence between” Lauren D. and the father, they were ordered to complete domestic violence
classes. Popplewell testified that both Lauren D. and the father had been aggressors in the
relationship and that after completing domestic violence classes, Lauren D. continued her
relationship with the father. Popplewell testified that given the history of domestic violence, the
Department was concerned about Lauren D. and the father continuing their relationship.
Popplewell testified that Lauren D. and the father had been living in a motel room and that they
were having trouble finding housing because of the father’s criminal history and previous
convictions. Popplewell testified Lauren D. said she had a job but had not provided any pay stubs
as proof of income. According to Popplewell, neither parent had visited the children since August
2024, which was over a year. Popplewell testified that the visits were stopped based on the
recommendation of J.A.V.’s therapist. When asked why the therapist had made that
recommendation, Popplewell testified, “It was because Lauren—after every single parent-child
visit, [J.A.V.] would have increased intense behaviors. A lot of it was because Lauren would state
that [the father] was hitting her and abusing her after each visit.”
Popplewell testified at the previous court date before the bench trial, the trial court had
ordered follicle testing on both parents, and Lauren D. had then tested positive for illegal
substances. According to Popplewell, she discussed the positive result with Lauren D., who replied
that the positive result was incorrect because she did not use that drug.
Popplewell testified that Lauren D. and the father had recently had another child who was
removed from their care and put into conservatorship care because of Lauren D.’s substance abuse.
Popplewell testified both parents have an open case with respect to that child. According to
Popplewell, the parents have not changed their behaviors and there are “still concerns with
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substance abuse.” Popplewell testified that the parents had “not completed all their services, and
this case has been open for years.” Popplewell testified that Lauren D. had not shown she was
addressing her mental health issues.
Popplewell testified that six-year-old J.A.V. had been placed in a residential treatment
center and three-year-old J.B.V. had been placed with a foster family. Before these placements,
they had been placed with their grandmother. However, the grandmother was no longer a
placement because J.A.V. had made an outcry that the grandmother “was abusing him and that she
told the [Department’s] workers that he was the devil.” Popplewell explained that the Department
then removed the children from the grandmother’s care. Popplewell testified that after J.A.V.
completes treatment at the residential treatment center, he will be placed in the same foster family
as his sister J.B.V. According to Popplewell, the foster parents visit J.A.V. weekly at the residential
treatment center and would like to adopt both children. The foster parents attend all the meetings
J.A.V. has with his therapist and psychiatric medical providers. Popplewell testified the foster
parents “just seem to really want to have [J.A.V.] in their care. They care about him a lot.”
Popplewell testified that J.A.V. has special needs. He has ADHD, a mood disorder, anxiety,
and was diagnosed with bipolar disorder. He is taking dexmethylphenidate extended release for
ADHD, clonidine for mood and anxiety, aripiprazole for mood, and Trazodone for sleep. His
current placement is making sure his needs are being met with regard to those issues. J.A.V. has
behavioral therapy, psychiatric services, individual therapy, and case management. In contrast,
J.B.V. is on medication for her allergies and needs a basic level of care. Popplewell testified that
both children are meeting developmental milestones. J.B.V. is in daycare. J.A.V. is in kindergarten
and has a 504 plan and accommodations. Popplewell testified that since she has been the
caseworker, neither parent has been involved in the care or treatment of either child. She testified
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that the substantial change in circumstances that prompted the Department to file the modification
suit is finding permanency for the children.
Popplewell testified she had talked to the parents about the services they were supposed to
complete, including individual counseling, but had not sent out referrals to a counselor because
the parents had been unsuccessfully discharged from individual counseling. Popplewell explained
that when she became the primary caseworker, the required referrals had already been sent out by
the previous caseworker and were still in place. Popplewell met with the parents in June, and their
newborn baby was removed in July. According to Popplewell, when the baby was removed from
their care in July, the caseworker for the baby’s case was setting up new services for the parents.
Popplewell testified that the parents had had over a year to complete their services. They
did not provide proof of stable housing or proof of employment. Lauren D. had tested positive for
illegal drugs, and the father had been incarcerated for assaulting Lauren D.
Janel Rodriguez testified she is the legal worker for the case relating to Lauren D.’s and
the father’s baby, P.V. She testified her case was opened because Lauren D. tested positive for
methamphetamines on a hair follicle test. Rodriguez testified that P.V. was born on June 8, 2025,
and Lauren D.’s hair follicle sample was taken on June 30th. According to Rodriguez, Lauren D.
provided no prescriptions that would have caused a positive result, and P.V. was removed on July
11th. When asked if the children would be in danger if they were returned to the parents’ care,
Rodriguez testified that “it would be a danger for the children to return” due to “concerns for
stability, ongoing substance abuse,” and the parents not addressing the domestic violence in their
relationship. Rodriguez testified that the father was “currently in domestic violence services” but
that Lauren D. needed to complete her services. Rodriguez emphasized the age range of the
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children, J.A.V.’s behaviors, and P.V. being a newborn who was “having some difficulties
potentially from [drug] withdraw[al]” as factors preventing the return of the children.
Lauren D. testified that since August 2023, she has worked thirty-five to forty hours per
week at the Rush Fun Park in Universal City and claimed to have given the Department proof of
her employment. She testified that the last time she saw J.A.V. was a year before trial, which she
blamed on her son’s therapist. She testified that she had completed her parenting and domestic
violence classes in April 2024, but admitted to never finishing individual counseling. The last time
she attended individual therapy was December 2024. She blamed her caseworker for never sending
another referral, claiming she would have gone if she had gotten another referral, but then admitted
she had been discharged from her original counseling referral. When asked why she was
discharged from individual counseling, Lauren D. replied, “I believe that I missed two
appointments probably because of my job.”
Lauren D. testified that P.V. was born on June 8, 2025. Lauren D. stated that she was sent
for a follicle test on June 29th and P.V. was removed days later. Lauren D. admitted that she had
a positive test in the beginning of 2024, but stated that she had tested negative since September
2024. When asked why she got back together with the father, Lauren D. testified, “Because he’s
clearly working on himself and I am working on myself, and our children deserve both parents.”
Lauren D. was asked whether it was “correct that there was an incident of domestic violence
between [her] and the father about a year ago.” Lauren D. replied, “I am not a hundred—about a
year ago? Possibly.” Lauren D. was then asked why she stayed with the father after the incident.
Lauren D. testified, “I did not stay with him after. When he got out of jail, we got—we talked
about it, and we got back together.” Lauren D. claimed that the father “had gotten help in jail and
at Haven for Hope, and he’s been doing great since he got out of jail.”
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When asked what her plan was to gain stable housing, Lauren D. stated, “I am currently
looking into trying to get an apartment. But it’s—it’s kind of hard because they want both adults
on the lease, and [the father] has two convictions.” Lauren D. admitted that even though she had
had since April 2022 to work the services on her family service plan, she still did not have stable
housing and had been living in a motel for the previous ten months. Lauren D. was then asked if
the children were returned to her care, she believed a motel room was suitable for a family of her
size. Lauren D. replied, “I can always get a bigger room.” She was then asked whether she believed
such an environment would be in the best interest of J.A.V. with his special needs. Lauren testified,
“Yes. We can make it work.”
Lauren D. testified that she did not have other family members that could be studied as
placements for the children. She testified that the last time she paid any child support was in
December 2023 when the children were placed with her mother.
During his testimony, the father was asked when he was incarcerated in prison. He replied,
“There was [sic] several times.” During the pendency of this case, the father testified he was
released from prison on August 3, 2024. He testified he knew he needed to do domestic violence
and parenting classes. According to the father, he had set up those classes when he went to jail for
a probation violation. He testified that he restarted his domestic violence and parenting classes in
May 2025. He admitted that since April 2022, he knew that he was required to complete drug
treatment and domestic violence classes but had not completed any of those services at the time of
trial. When asked if he was aware Lauren D. was using illegal drugs, the father testified that Lauren
D. had not used drugs since she discovered she was pregnant with P.V.
After hearing all the evidence, on September 10, 2025, the trial court signed its Order
Modifying Final Order in a SAPCR, which terminated the parental rights of both Lauren D. and
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the father. Lauren D.’s parental rights were terminated on subsection (D) and (E) grounds. Lauren
D. then filed a notice of appeal. 1
DID THE TRIAL COURT ERR IN TERMINATING PARENTAL RIGHTS ON GROUNDS NOT PLED?
Lauren D. argues that the trial court erred in terminating her parental rights based on
subsection (E), because the Department did not plead those grounds. See In re S.M.R., 434 S.W.3d
576, 581 (Tex. 2014) (stating that an order terminating parental rights “can only be upheld on a
ground that was both pleaded by the party seeking termination and found by the trier of fact”).
However, the clerk’s record reflects that the Department in this case always sought termination
based on subsection (E) grounds, from the time it filed its original petition to the time it filed a
first amended petition to modify the prior order in a suit affecting the parent-child relationship.
The Department’s live pleading at the time of trial clearly reflects that it sought termination on the
basis of subsection (E). Subsection (E) grounds were therefore properly pled by the Department.
We note that Lauren D. cites to the pages of the reporter’s record where the Department
orally requested termination on subsection (D) and (N) grounds and failed to mention subsection
(E) grounds. To the extent Lauren D. is arguing that the Department abandoned subsection (E)
grounds, abandonment of a pleading by a party is a question of law that we review de novo. See
In re J.M., 352 S.W.3d 824, 826 (Tex. App.—San Antonio 2011, no pet.). One need not formally
amend its pleadings to abandon a claim. Id. For example, a “stipulation may be sufficient to
demonstrate abandonment of a pleading.” Id. But, abandonment requires more than merely failing
to orally mention a ground at trial; it requires an affirmative act showing intent to relinquish. See
Evans Res., L.P. v. Diamondback E&P, LLC, 725 S.W.3d 718, 740 (Tex. App.—Eastland 2025,
pet. filed) (holding that counsel’s affirmative representation in court that his clients were not
1 The father did not file a notice of appeal.
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submitting a damages question relating to their pooling claims and that they only wished to discuss
the defendant’s failure to obtain consent in connection with their pleaded fraud claim “constitute[d]
a stipulation that limited the issues to be tried or considered by the jury”). Here, the reporter’s
record reflects that during closing argument, the Department was discussing the parents’ failure to
complete services, Lauren D.’s failure to complete drug treatment, her positive drug tests, Lauren
D. remaining with the father despite the domestic violence, and their infant’s removal due to
continued concerns for drug use and instability. The Department then argued, “Based on this, Your
Honor, I am asking for termination of parental rights of both of the parents under D and N grounds
and for the Department to continue as permanent managing conservator while we work toward the
goal of adoption by the current placement.” Nothing in this statement indicates an intent by the
Department to abandon its request for termination pursuant to subsection (E). Thus, we hold the
trial court did not, as argued by Lauren D., terminate parental rights based on grounds not pled or
requested.
TRIAL COURT’S FINDINGS UNDER SECTION 161.001(F) AND (G)
A. Applicability of Subsections (F) and (G) to a Petition to Modify Filed After the Effective Date of the Act
In her brief, Laura D. complains that the trial court failed to make required findings
pursuant to section 161.001(f) and (g). See TEX. FAM. CODE § 161.001(f), (g). In response, the
Department argues that subsections (f) and (g) do not apply to this case.
In 2023, the Legislature amended section 161.001 to require the trial court to make findings
concerning the reasonable efforts the Department made to return the child to the parent. See Act
of May 25, 2023, 88th Leg., R.S., ch. 675, §§ 1, 7-8, 2023 Tex. Sess. Law Serv. 1646, 1646, 147
(codified at TEX. FAM. CODE § 161.001(f), (g)). Subsection (f) provides the following:
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In a suit for termination of the parent-child relationship filed by the Department of Family and Protective Services, the court may not order termination of the parent- child relationship under Subsection (b)(1) unless the court finds by clear and convincing evidence and describes in writing with specificity in a separate order that: (1) the department made reasonable efforts to return the child to the parent before commencement of a trial on the merits and despite those reasonable efforts, a continuing danger remains in the home that prevents the return of the child to the parent; or (2) reasonable efforts to return the child to the parent, including the requirement for the department to provide a family service plan to the parent, have been waived under Section 262.2015.
TEX. FAM. CODE § 161.001(f). Subsection (g) provides the following:
In a suit for termination of the parent-child relationship filed by the Department of Family and Protective Services in which the department made reasonable efforts to return the child to the child’s home but a continuing danger in the home prevented the child’s return, the court shall include in a separate section of its order written findings describing with specificity the reasonable efforts the department made to return the child to the child’s home.
TEX. FAM. CODE § 161.001(g).
Here, the clerk’s record reflects that on April 21, 2022, the Texas Department of Family
and Protective Services filed an Original Petition for Protection of a Child, for Conservatorship,
and for Termination in a Suit Affecting the Parent-Child Relationship, seeking termination of
Lauren D.’s parental rights to her son J.A.V. and to her daughter J.B.V. On September 8, 2023,
the parties entered into a mediated settlement agreement in which the Department was named
permanent managing conservator, and the parents were named possessory conservators with
monthly supervised visitation and weekly telephonic or virtual visitation. On September 19, 2023,
the trial court signed a Final Order in Suit Affecting the Parent-Child Relationship, which noted
the mediated settlement agreement between the parties and appointed the Department as
permanent managing conservator and the parents as possessory conservators.
On December 11, 2024, the Department filed an Original Petition to Modify Prior Order
in a SAPCR and again sought termination of Laura D.’s parental rights. On January 7, 2025, the
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Department filed a First Amended Petition to Modify Prior Order in SAPCR, seeking termination
of Laura D.’s parental rights pursuant to Section 161.001(b)(1)(D), (E), and (O). After a bench
trial, on September 10, 2025, the trial court signed its order terminating Lauren D.’s parental rights
to her children pursuant to subsections (D) and (E). The clerk’s record reflects that the trial court
did not make any findings pursuant to subsections (f) and (g).
The Department argues that subsections (f) and (g) do not apply here because the
Department’s Original Petition for Protection of a Child, for Conservatorship, and for Termination
in a Suit Affecting the Parent-Child Relationship was filed on April 21, 2022, which was before
the effective date of the newly-enacted subsections (f) and (g). According to the Department,
although the petition for modification was filed after the effective date of the newly-enacted
subsections (f) and (g), “the modification is just a continuation of the original suit, not a separate
action in and of itself—indeed, it uses the same cause number as the original suit.” The Department
cites no support for this assertion.
In amending section 161.001 by adding subsections (f) and (g), the Legislature stated that
“[t]he changes in law made by this Act apply to a suit affecting the parent-child relationship filed
on or after the effective date of this Act.” Act of May 25, 2023, 88th Leg., R.S., ch. 675, §§ 1, 7-
8, 2023 Tex. Sess. Law Serv. 1646, 1646, 147 (codified at TEX. FAM. CODE § 161.001(f), (g))
(emphasis added). “A suit filed before the effective date of this Act is governed by the law in effect
on the date the suit is filed, and the former law is continued in effect for that purpose.” Id.
(emphasis added). “This Act takes effect September 1, 2023.” Id. Thus, the issue is whether a
petition to modify a final order in a suit affecting the parent-child relationship is “a suit affecting
the parent-child relationship.”
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In our order of February 12, 2026, we concluded that because the petition to modify is a
suit affecting the parent-child relationship and was filed after the effective date of the Act,
subsection (f) and (g) applied. In doing so, we explained that statutory construction is a question
of law that we review de novo and that examining the statute’s text is the best indication of
legislative intent. City of Round Rock v. Rodriguez, 399 S.W.3d 130, 133 (Tex. 2013). Further, we
explained that in ascertaining the meaning of a term, we should “look primarily to how that term
is used throughout the statute as a whole.” In re Y.K., 722 S.W.3d 273, 278 (Tex. App.—Fort
Worth 2025, no pet.) (quoting Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)).
We noted that section 101.032 of the Texas Family Code defines “[s]uit affecting the
parent-child relationship” as “a suit filed as provided by this title [i.e., Title 5] in which the
appointment of a managing conservator or a possessory conservator, access to or support of a child,
or establishment or termination of the parent-child relationship is requested.” TEX. FAM. CODE §
101.032(a) (emphasis added). In looking at the plain language of section 101.032, we concluded
in our February 12, 2026 order that the Department’s Original Petition to Modify Prior Order is a
“suit affecting the parent-child relationship.” See Chalu v. Shamala, 125 S.W.3d 737, 738 (Tex.
App.—Houston [1st Dist.] 2003, no pet.) (“A motion to modify the parent-child relationship is a
suit affecting the parent-child relationship (SAPCR).”). Thus, because the petition to modify was
filed after the effective date of the Act in question, we determined that subsections (f) and (g)
applied and that the trial court erred in failing to include the required findings. See D.F. v. Tex.
Dep’t of Fam. & Protective Servs., No. 03-25-00738-CV, 2026 WL 59729, at *1 (Tex. App.—
Austin Jan. 8, 2026, order) (holding that because the trial court “ordered the termination of the
parent-child relationship under subsection (b)(1),” “its order must comport with subsections (f)
and (g)”). Therefore, we abated the cause and remanded it to the trial court so that it could enter
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the required findings with sufficient specificity concerning the Department’s reasonable efforts to
return the children to the home. See id. (abating the cause, remanding it to the trial court for it “to
enter the required findings with sufficient specificity concerning the Department’s reasonable
efforts to return the children to their home,” and ordering a supplemental clerk’s record to be filed
containing the trial court’s findings); see also TEX. R. APP. P. 44.4 (prohibiting the court of appeals
from affirming or reversing a trial court’s judgment if the “trial court’s erroneous action or failure
or refusal to act prevents the proper presentation of a case” on appeal and “the trial court can
correct its action or failure to act”). After the supplemental clerk’s record containing the trial
court’s findings under subsections (f) and (g) were filed, we reinstated this appeal and set it for
submission.
The supplemental clerk’s record reflects that the trial court made the following findings
pursuant to subsections (f) and (g):
1. The court finds by clear and convincing evidence that the Department made reasonable efforts to return the children to the parents before trial commenced. Specifically, the Department made the following efforts:
a. Engaging the parents in a safety plan that included progressive steps for the parents to gain parenting skills, not use illicit substances, not allow the children to be around others that use drugs or neglect the children, and engage in therapy.
2. The court finds by clear and convincing evidence that a continuing danger remains in the home that prevents the return of the children to the parents, specifically:
a. Neither parent completed the safety plan nor addressed [the] reasons for removal including domestic violence and drug use.
b. Father was minimally engaged in part due to frequent incarcerations.
c. Mother did not complete therapy necessary to address the reasons for removal. She was unsuccessfully discharged and took no effort to reengage despite being given the opportunity to do so.
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d. Mother continued to abuse illicit substances.
e. Mother concealed a pregnancy during this legal case and had a subsequent child removed due to illicit drug use.
f. Both parents continue to exhibit lack of stability and an inability to care for children of which one has a need for an intense level of care.
g. Father has been incarcerated a substantial percentage of the ongoing legal case.
h. Mother and Father (when not incarcerated) have been living in hotels or motels since at least June 2025.
B. Factual Sufficiency of Trial Court’s Subsection (F) and (G) Findings
Lauren D. argues that the evidence is factually insufficient to support the trial court’s
finding of that the Department made reasonable efforts to return the children to her. Specifically,
she contends that the evidence “consisted of hearsay statements of a prior caseworker and hearsay
statements of a child therapist.” However, unobjected-to hearsay testimony retains probative value
and can support findings by the trial court. See In re R.H.W., 542 S.W.3d 724, 734 (Tex. App.—
Houston [14th Dist.] 2018, no pet.) (“Unobjected-to hearsay is, as a matter of law, probative
evidence.”); L.R. v. Tex. Dep’t of Fam. & Prot. Servs., No. 03-18-00125-CV, 2018 WL 3059959,
at *4 (Tex. App.—Austin June 21, 2018, no pet.) (rejecting appellant’s argument that the evidence
was insufficient because “the testimony at trial ‘was comprised wholly of speculation and
hearsay,’” because the record reflected that the testimony was not objected to on hearsay grounds
and unobjected-to “hearsay evidence may support the trial court’s determinations”). Texas Rule
of Evidence 802 provides that “[i]nadmissible hearsay admitted without objection shall not be
denied probative value merely because it is hearsay.” TEX. R. EVID. 802.
In reviewing the evidence under the appropriate factual sufficiency standard of review, we
hold that the evidence is factually sufficient to support the trial court’s finding under subsections
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(f) and (g). There was testimony by the caseworker of a family safety plan that included
progressive steps for the parents to gain parenting skills, not use illicit substances, not allow the
children to be around others that use drugs or neglect the children, and engage in therapy. See In
re M.N.M., 708 S.W.3d 321, 329 (Tex. App.—Eastland 2025, pet. denied) (“The Department’s
implementation of a family service plan is generally considered a reasonable effort to return the
child to the parent.”). Popplewell testified that she was the custodian of records for the
Department’s records in this case and had reviewed the case file. She testified that she had also
discussed the case with the previous caseworker. She testified that Lauren D. had been given a
service plan in 2022 and had completed some services but had been discharged from individual
therapy for missing too many appointments. Lauren D.’s discharge from therapy occurred about a
year before trial, and there was testimony that she never made any effort to reengage. There was
testimony that the previous caseworker had sent out referrals, which were still in place when
Popplewell became the caseworker and were still in place at the time of trial. Lauren D. testified
that she did not know about the referrals, but the trial court, as factfinder, was free to disregard her
testimony. See In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (explaining that as “the sole arbiter
when assessing the credibility and demeanor of the witnesses,” the factfinder is “free to disregard”
witness testimony that it finds not credible).
Additionally, there was evidence that neither parent completed the safety plan nor
addressed the reason for the children’s removal. There was evidence of Lauren D.’s continued
illegal drug use and of continued domestic violence between Lauren D. and the father, which
resulted in the father’s incarceration. There was evidence that despite completing domestic
violence classes and despite the father being incarcerated for the assault of Lauren D., Lauren D.
still decided to continue her relationship with the father and was in a relationship with the father
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at the time of trial. There was evidence that Lauren D. gave birth to another child during this legal
case, who was removed from Lauren D.’s care because of her illegal drug use. There was evidence
that Lauren D. lacked stability and was living in a hotel or motel for the previous ten months before
trial. We emphasize that the trial court, as factfinder, was free to disregard Lauren D.’s testimony
as not credible. See id.
Having concluded that there is factually sufficient evidence to support the trial court’s
supplemental findings under subsections (f) and (g), we modify the trial court’s order of
termination to include those findings.
SUFFICIENCY OF SUBSECTION (D) GROUNDS
Finally, Lauren D. attacks the legal and factual sufficiency of the evidence to support
termination of parental rights on subsection (D) grounds. The trial court in this case terminated
Lauren D.’s parental rights on two endangerment grounds: subsections (D) and (E). Lauren D.,
however, has not attacked the sufficiency of the evidence to support the trial court’s termination
of her parental rights on subsection (E) grounds. “To affirm a termination judgment on appeal, a
court need uphold only one termination ground—in addition to upholding a challenged best
interest finding—even if the trial court based the termination on more than one ground.” In re
N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam). Thus, because Lauren D. has not challenged
the sufficiency of the evidence of both predicate grounds found by the trial court, we can uphold
the trial court’s judgment based on the trial court’s subsection (E) finding, along with its
unchallenged best-interest finding. See id. Thus, the question becomes whether we need to address
Lauren D.’s sufficiency issue regarding the trial court’s subsection (D) finding.
We note that the Texas Supreme Court in In re N.G., 577 S.W.3d 230, 234 (Tex. 2019),
“established the principle that appellate courts must review findings under subsections (D) and
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(E), when challenged, even where such review would ordinarily be vitiated by mootness or similar
jurisprudential principles.” In re M.N.R., 719 S.W.3d 647, 654 (Tex. App.—San Antonio 2025,
pet. denied) (discussing In re N.G., 577 S.W.3d at 235). The supreme court “reasoned the collateral
consequences of failing to review such a finding on appeal could affect a future termination
proceeding under subsection (M), thus creating a ‘risk of error’ sufficient to outweigh the state’s
interest in protecting children.” In re M.N.R., 719 S.W.3d at 654 (discussing In re N.G., 577
S.W.3d at 234, 236-37). The supreme court concluded that “[a]llowing section 161.001(b)(1)(D)
or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court”
violated the parent’s “due process and due course of law rights.” In re N.G., 719 S.W.3d at 237.
This court, however, has distinguished the supreme court’s holding in In re N.G. when an
appellant, like Lauren D. in this appeal, does not challenge the sufficiency of the evidence of both
endangerment findings. See In re M.N.R., 719 S.W.3d at 656. In In re M.N.R., the appellant
challenged the sufficiency of the evidence of one endangerment ground found by the trial court
but did not challenge the other endangerment ground. This court explained that when the appellant
“challenges one endangerment finding without challenging the other,” she was “equally at risk to
future termination under subsection (M), irrespective of whether [this court] review[ed] her
challenge to subsection (D).” Id. This court noted that “[o]ther courts presented with the same
circumstances—where there are no collateral consequences implicated by appellate review of an
endangerment ground due to a failure to challenge the ground on appeal—have held In re N.G.
does not compel review of the challenged ground.” In re M.N.R., 719 S.W.3d at 656; see In re
A.A., No. 10-24-00084-CV, 2024 WL 3717427, at *1 (Tex. App.—Waco Aug. 8, 2024, pet.
denied) (explaining that although it is generally “required to address the sufficiency of the evidence
as to subsection (D) or (E) due to potential collateral consequences in the future,” it need to address
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the appellant’s sufficiency argument as to subsection (D) “because the unchallenged ground
pursuant to subsection (E) satisfies this requirement”); C.W. v. Tex. Dep’t of Fam. & Protective
Servs., No. 03-19-000654-CV, 2020 WL 828673, at *2 (Tex. App.—Austin Feb. 20, 2020, no pet.)
(holding that it did not need to address challenged subsection (D) finding “because the potential
collateral consequences are triggered separately by the subsection (E) portion of the trial court’s
judgment, which [the appellant did] not challenge”); In re R.S., No. 01-20-00126-CV, 2020 WL
4289978, at *6 (Tex. App.—Houston [1st Dist.] July 28, 2020, no pet.) (same). Thus, in In re
M.N.R., 719 S.W.3d at 656, we held that an appellant waives any error to its challenged
endangerment finding if she fails to also challenge the other endangerment finding.
Applying the holding in In re M.N.R. to the facts here, while Lauren D. has challenged the
sufficiency of the evidence to support the trial court’s subsection (D) finding, she has not
challenged the sufficiency of the evidence to support the trial court’s subsection (E) finding.
Accordingly, any potential collateral consequences are triggered separately by the trial court’s
unchallenged subsection (E) finding. See C.W., 2020 WL 828673, at *2. Therefore, we hold Lauren
D. has waived any error as to the trial court’s subsection (D). See In re M.N.R., 719 S.W.3d at 656.
CONCLUSION
For the reasons stated above, we modify the trial court’s order terminating Lauren D.’s
parental rights to include the trial court’s findings under subsections (f) and (g). As modified, we
affirm the trial court’s order terminating Lauren D.’s parental rights.
Adrian A. Spears II, Justice
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