In the Interest of N.L.S. and E.J.C. A/K/A E.J.C., Children

Supreme Court of Texas
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No. 23-0965
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In the Interest of N.L.S. and E.J.C. a/k/a E.J.C., Children

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On Petition for Review from the
Court of Appeals for the First District of Texas
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PER CURIAM

CHIEF JUSTICE BLACKLOCK filed a dissenting opinion, in which
Justice Devine and Justice Sullivan joined.

In this appeal of a judgment terminating Father’s parental rights,
we are asked whether legally sufficient evidence supports the trial
court’s finding that Father engaged in conduct that endangered his
child’s physical or emotional well-being. The court of appeals reversed
the termination judgment, holding that there was legally insufficient
evidence to support the finding. However, the court of appeals’ analysis
conflicts with our recent opinions in In re R.R.A., 687 S.W.3d 269 (Tex.
2024), and In re J.F.-G., 627 S.W.3d 304 (Tex. 2021). Based on our
reasoning in those opinions, we hold that legally sufficient evidence
supports the trial court’s endangerment finding. Accordingly, we
reverse the court of appeals’ judgment as to Father and remand to that
court to reach the unaddressed issues of whether factually sufficient
evidence supports the endangerment finding and whether legally and
factually sufficient evidence supports the trial court’s determination
that termination is in the child’s best interest.

I

In 2021, N.L.S. was living with his mother. A neighbor called the
police to report that N.L.S., who was five years old at the time, had come
to the neighbor’s house several mornings in a row hungry and wearing
the same dirty clothes. The neighbor said that N.L.S. stayed at her
house for hours and no parents checked on him.
In response to the neighbor’s call, the police performed a welfare
check at Mother’s residence. When the police arrived, N.L.S. answered
the door and said he was alone. The officers searched the home but did
not find a caretaker. They took N.L.S. to the police station and contacted
the Department of Family and Protective Services. Officers later
returned to the residence and found Mother, her infant daughter
(E.J.C.),1 and another adult. Both children were taken into the
Department’s custody.
Father has an extensive and escalating criminal history. Since
2008, he has been convicted of twelve crimes, including at least five
felonies. He has twice been convicted of family violence, though neither
of those convictions involved N.L.S. or Mother. He has twice been
convicted of drug possession; one of those convictions stems from an
arrest for possession of methamphetamine on the same day he visited

1 E.J.C. is not Father’s child. The Department terminated E.J.C.’s
father’s parental rights and appointed the Department as E.J.C.’s sole
managing conservator. E.J.C.’s father did not appeal.

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N.L.S. at Mother’s home prior to N.L.S.’s removal. Father’s other
convictions include burglary, theft of a firearm, felon in possession of a
firearm, evading arrest, and credit card abuse. His most recent
conviction was in 2021—six months before N.L.S.’s removal—on five
counts: (1) felon in possession of a firearm; (2) possession of a prohibited
weapon; (3) evading arrest or detention; (4) assault of a family member;
and (5) possession of methamphetamine. He received a five-year
sentence and was incarcerated when his parental rights were
terminated.
Father has been incarcerated for much of N.L.S.’s life but has
spent time with N.L.S. between his sentences. He was incarcerated
when N.L.S. was born in 2015. Father lived with N.L.S. and Mother for
two months in 2018, and he testified that after that, he visited N.L.S.
“[q]uite a few times.” The last time he saw N.L.S. was in 2019 when
N.L.S. was three years old.
After the Department initiated this suit, a caseworker met with
Father in jail six or seven times. At trial, the same caseworker testified
that during one of those visits, Father “stated that [Mother] was not a
good mother” and “was never home” and that he was “the one taking
care of [N.L.S.]” when he and Mother were “together.” But when Father
testified, he denied making those statements. He further testified that
Mother was an attentive parent when they lived together and that her
home was clean. When he visited them, he said, he had no concerns that
Mother neglected N.L.S. He testified that he did not know Mother used
drugs or had a history with the Department.

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The Department’s service plan did not require Father to complete
any services. He testified that he worked seven days a week as a welder
for the sheriff’s department and attended GED classes while
incarcerated. He further testified that he was working through
parenting papers provided by the Department but had not completed
them. He planned to attend narcotics anonymous classes in prison, and
he testified that he requested video visits with N.L.S. but did not receive
a response to that request. The Department caseworker testified that
she did not recall Father asking for video visits.
When asked whether he had a relationship with N.L.S., Father
responded that he was incarcerated when N.L.S. was born so he did not
“have much of a relationship with him,” but N.L.S. “knows who [Father
is].” Father did not know N.L.S.’s grade in school, favorite subject,
favorite color, or favorite food. Father testified that, at the time of his
testimony, he could not provide N.L.S. with a safe and stable home.
N.L.S.’s guardian ad litem recommended that Father’s parental
rights be terminated because his conduct “subjected [N.L.S.] to a life of
uncertainty and instability that[] endanger[ed] [N.L.S.’s] physical and
emotional well-being.” Specifically, Father’s repeated incarcerations
left N.L.S. “in a state of flux” because he did not know if Mother or
Father could be “going to . . . jail one day or the next.”
After a bench trial, the trial court rendered judgment terminating
Father’s parental rights to N.L.S., finding that Father engaged in
conduct or knowingly placed N.L.S. with persons who engaged in
conduct endangering N.L.S.’s physical or emotional well-being under
Family Code Section 161.001(b)(1)(E) and that termination was in

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N.L.S.’s best interest. The trial court also appointed the Department
N.L.S.’s sole managing conservator.2 Father appealed, challenging the
legal and factual sufficiency of the evidence to support both findings.
The court of appeals reversed the judgment terminating Father’s
parental rights and rendered judgment denying the Department’s
petition for termination. ___ S.W.3d ___, 2023 WL 6627526 (Tex.
App.—Houston [1st Dist.] Oct. 12, 2023). The court held the evidence
was legally insufficient to support termination under Subsection (E)
because the Department failed to establish “a causal link between
[F]ather’s criminal conduct and any alleged endangerment to N.L.S.”
Id. at *35. Because the court reversed on that ground, it did not address
Father’s factual-sufficiency challenge to the Subsection (E) finding or
Father’s legal- and factual-sufficiency challenges to the best-interest
finding. The Department petitioned this Court for review.

II

“The Family Code authorizes the termination of parental rights
when a factfinder decides that (1) a parent’s conduct has met a statutory
ground for termination; and (2) termination is in the child’s best
interest.” R.R.A., 687 S.W.3d at 271. The factfinder must make those
findings by clear and convincing evidence, TEX. FAM. CODE § 161.001(b),
which is “the measure or degree of proof that will produce in the mind

2 The trial court also terminated Mother’s parental rights to both N.L.S.

and E.J.C. The court of appeals affirmed the judgment terminating Mother’s
parental rights, ___ S.W.3d ___, 2023 WL 6627526, at *36 (Tex. App.—Houston
[1st Dist.] Oct. 12, 2023), and Mother did not petition this Court for review.

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of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established,” id. § 101.007.
The Department argues here that there is legally sufficient
evidence that Father engaged in conduct that endangered N.L.S. We
agree.

A

The statutory ground for termination at issue is
Section 161.001(b)(1)(E) of the Texas Family Code. It applies when a
parent has “engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical or
emotional well-being of the child.” Id. § 161.001(b)(1)(E). “Endanger”
in this context means to “expose to loss or injury; to jeopardize.” Tex.
Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It is “not
necessary that the [parent’s] conduct be directed at the child or that the
child actually suffers injury.” Id.
In R.R.A.—decided after the court of appeals’ decision here—this
Court considered the meaning of “endanger” in Section 161.001(b)(1)(P),
a termination ground that applies when a parent “used a controlled
substance . . . in a manner that endangered the health or safety of the
child.” 687 S.W.3d at 276-77; TEX. FAM. CODE § 161.001(b)(1)(P).
Relying in part on our interpretation of “endanger” in Subsection (E),
Boyd, 727 S.W.2d at 533, we held that “endangerment does not require
a parent’s drug use to directly harm the child.” R.R.A., 687 S.W.3d at
278. Rather, “a pattern of parental behavior that presents a substantial
risk of harm to the child permits a factfinder to reasonably find
endangerment.” Id.

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Father argues that R.R.A. is limited to drug-use cases. That is
incorrect. “When the Legislature uses substantially the same words and
phrases in a statute, subsequent uses of that same word in the same
subject area ordinarily carry the same meaning.” Id. at 277. For that
very reason, as noted, in R.R.A. we expressly relied on our earlier
interpretation of Subsection (E). Id. at 278. Accordingly, we confirm
that endangerment under Subsection (E), as under Subsection (P), “does
not require [the parent’s conduct] to directly harm the child.” See id.
The proper inquiry is thus whether there is evidence that Father
exhibited a pattern of behavior presenting a substantial risk of harm to
N.L.S. See id.

B

Applying the correct standard, we hold that legally sufficient
evidence exists to uphold the trial court’s endangerment finding. In
reviewing legal sufficiency, we “‘view the facts in a light favorable to the
findings of the trial judge, who heard the testimony, evaluated its
credibility,’ and dealt the closest with the evidence at hand.” Id. at 276
(quoting J.F.-G., 627 S.W.3d at 315). We “reverse only if ‘no reasonable
factfinder could form a firm belief or conviction’ that [the trial court’s]
finding is true.” Id. at 281 (quoting In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002)).
As the court of appeals correctly recognized, “mere imprisonment
will not, standing alone, constitute engaging in conduct which
endangers the emotional or physical well-being of a child.” Boyd, 727
S.W.2d at 533-34. However, we have made clear that “[a] parent’s
criminal history—taking into account the nature of the crimes, the

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duration of incarceration, and whether a pattern of escalating, repeated
convictions exists—can support a finding of endangerment.” J.F.-G.,
627 S.W.3d at 313; see also id. at 314 (“Lengthy incarceration presents
a risk of endangerment to the child’s well-being . . . .”).
In J.F.-G., there was evidence that the “father committed
increasingly serious crimes—among them, possession of a controlled
substance, sale of marijuana, and robbery.” Id. at 315. We held that
legally sufficient evidence supported termination of the father’s parental
rights under Subsection (E), “not[ing], specifically: his absence from [the
child’s] childhood for more than eight years; his history of dealing drugs;
his choice not to monitor her safety during his incarceration; and his
minimal effort to contact [the child] or be part of decisions regarding her
health, education, or well-being.” Id. at 317-18; see also id. at 315
(holding that “evidence [of criminal conduct]—which in this case
includes multiple criminal episodes of escalating seriousness—together
with the duration and consequences of the incarceration, is relevant
when the resulting abandonment presents a risk, as it did here, to a
child’s physical or emotional well-being”).
As in J.F.-G., Father’s pattern of escalating convictions supports
the endangerment finding. Specifically, as outlined above, Father has
been convicted of increasingly serious crimes since 2008—among them,
drug possession, burglary, theft of a firearm, felon in possession of a
firearm, evading arrest, credit card abuse, and family violence. See
Walker v. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied) (“Abusive and violent
criminal conduct by a parent can produce an environment that

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endangers the well-being of a child.”). Although half of Father’s crimes
occurred before N.L.S.’s birth, courts may consider a criminal record
beginning before a child’s birth as evidence of an endangering course of
conduct. See J.F.-G., 627 S.W.3d at 315. And Father’s endangering
course of conduct continued after N.L.S. was born, with Father
continuing to engage in criminal behavior resulting in incarceration.
Indeed, in orally announcing its decision to terminate Father’s
rights at the conclusion of the trial, the trial court noted “that during
the entirety of [N.L.S.’s] life [Father has] either been under indictment
for a felony or in prison on felony convictions.” In J.F.-G., we held that
the father’s eight-year absence from his eleven-year-old child’s life
“resulting from criminal conduct [was] sufficient evidence” to support an
endangerment finding. Id. at 316. As was the case in J.F.-G., Father’s
criminal conduct has prevented him from seeing N.L.S. since he was
three years old, endangering N.L.S.’s physical and emotional well-being.
See Walker, 312 S.W.3d at 617 (“Conduct that routinely subjects a child
to the probability that the child will be left alone because a parent is
jailed endangers both the physical and emotional well-being of the
child.”).
The court of appeals focused on Father’s testimony that he did not
know N.L.S. would be endangered while in Mother’s care. See 2023 WL
6627526, at *35. Father contends this lack of knowledge forecloses a
finding that he “knowingly placed [N.L.S.] with persons who engaged in
[endangering] conduct.” TEX. FAM. CODE § 161.001(b)(1)(E). We
disagree for two reasons. First, this evidence was disputed by the
caseworker’s testimony regarding her discussions with Father about

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Mother’s ability to parent N.L.S., and the trial court was entitled to
credit that evidence. J.F.-G., 627 S.W.3d at 311-12 (discussing the
required deference to the factfinder in evaluating witness credibility).
Second, we rejected a similar argument in J.F.-G., explaining that the
father’s “lack of knowledge” regarding his daughter’s precarious living
situation “resulted from criminal conduct that led to his incarceration
and his indifference to his daughter while he was incarcerated.” Id. at
315. So too here.
As in J.F.-G., the evidence reflects Father’s “choice not to monitor
[the child’s] safety during his incarceration[] and his minimal effort to
contact [the child] or be part of decisions regarding [the child’s] health,
education, or well-being.” See id. at 318. Father testified that he has
never provided N.L.S. financial assistance, could not provide a safe and
stable home for him, and could not provide the Department with any
alternative placements. Father testified: “I was incarcerated when
[N.L.S.] was born, so I don’t have much of a relationship with him; but
he knows who I am.” Father did not know N.L.S.’s grade in school,
favorite color, or favorite food. He did not know “a whole lot about”
N.L.S. The guardian ad litem testified that N.L.S. had no emotional
connection to Father and that N.L.S. believed E.J.C.’s father was his
father. There is no evidence that Father took any measures to contact
N.L.S. before the Department initiated these proceedings or to be part
of decisions regarding N.L.S.’s well-being while incarcerated. Father
testified that he requested video visits with N.L.S., but the Department
caseworker did not recall him making such requests. Viewed in a light
favorable to the trial court’s findings, this testimony supports the trial

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court’s finding of endangerment based on Father’s minimal effort to be
part of N.L.S.’s life.
Accordingly, we hold that legally sufficient evidence supports the
trial court’s finding that Father’s conduct endangered N.L.S. under
Subsection (E).3

III

We hold that the evidence is legally sufficient to support the trial
court’s finding that Father engaged in conduct that endangered N.L.S.’s
physical or emotional well-being. Accordingly, without hearing oral
argument, see TEX. R. APP. P. 59.1, we grant the Department’s petition
for review and reverse the portion of the court of appeals’ judgment
reversing the termination judgment as to Father. We remand to the
court of appeals to review whether the evidence was factually sufficient
to support the Subsection (E) finding and whether the evidence was

3 Although the court of appeals did not reach Father’s sufficiency
challenges to the trial court’s best-interest finding, in its merits brief here the
Department asks us to do so in the first instance, at least with respect to the
legal-sufficiency challenge. We decline for two reasons. First, the Department
did not present it as an issue in its petition for review, identifying only the
court of appeals’ error in evaluating the legal sufficiency of the evidence to
support the Subsection (E) finding. See TEX. R. APP. P. 53.2(f) (“The petition
must state concisely all issues or points presented for review.”). Second, even
if we were to address the issue and agree with the Department that legally
sufficient evidence supports the best-interest finding, we would still need to
remand to the court of appeals to address Father’s factual-sufficiency
challenges to both of the trial court’s findings, and we lack jurisdiction to
consider those challenges. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d
757, 761 (Tex. 2003) (“[T]his Court does not have jurisdiction to conduct a
factual sufficiency review . . . .”).

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legally and factually sufficient to support the finding that termination
is in N.L.S.’s best interest.

OPINION DELIVERED: June 13, 2025

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