NUMBER 13-26-00164-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF V.L.G. AND J.M.A. JR., CHILDREN
ON APPEAL FROM THE 444TH DISTRICT COURT
OF CAMERON COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Silva and Cron
Memorandum Opinion by Justice Cron
Father appeals from an order terminating his parental rights to his children V.L.G.
and J.M.A. Jr. He first contends that the evidence was legally and factually insufficient to
support the trial court’s finding of a material and substantial change in circumstances
under Texas Family Code section 161.004(a)(2). He also argues that the evidence was
insufficient to support the jury’s termination findings under Texas Family Code
subsections 161.001(b)(1)(D) and (E). We affirm.
I. BACKGROUND
On April 19, 2017, the children’s two-year-old half-sister K.C. died under
suspicious circumstances. 1 Mother initially told first responders and police that she had
been at home caring for K.C. and that K.C. had fallen down a flight of stairs inside the
home. However, first responders noted that K.C. had both old and new bruising all over
her body and that her injuries were inconsistent with Mother’s explanation.
The Texas Department of Family and Protective Services removed the children
and their half-brother I.C. from the parents’ home on an emergency basis shortly after
K.C.’s death and initiated the underlying proceeding. At the time, V.L.G. was
approximately seventeen months old, and J.M.A. was approximately four months old. 2
The trial court appointed the Department as the children’s temporary managing
conservator while the police continued to investigate K.C.’s death.
On April 6, 2018, before the investigation into K.C.’s death was complete, the trial
court signed its “Final Order in Suit Affecting the Parent-Child Relationship,” which named
the Department as the children’s permanent managing conservator and the parents as
possessory conservators. Approximately three months later, Father was indicted for
capital murder (Count I) and recklessly causing injury to a child (Count II). The medical
examiner had determined that K.C. died from blunt force abdominal trauma and that the
manner of her death was homicide.
1 K.C. was Mother’s child from a prior relationship.
2 The children’s guardian ad litem testified at trial that Mother was pregnant with J.M.A. at the time
of K.C.’s death, but the record indicates that J.M.A. was born several months before K.C.’s death.
2
Father was arrested on July 3, 2018, and remained detained until his criminal trial
in 2023. Mother was also charged with capital murder but reached a plea agreement with
the State: she pleaded no contest to the reduced offense of injury to a child by omission
and agreed to testify truthfully against Father, and in exchange, the State recommended
that Mother receive a probated sentence.
Father’s criminal trial occurred in October 2023, and Mother testified that Father
had physically abused her and K.C. prior to K.C.’s death. She also testified that Father
fabricated the story about K.C. falling down the stairs and left the scene before first
responders arrived. The jury also heard testimony that prior to her death, K.C. suffered
various injuries while in Father’s care, including a broken arm, broken ribs, and having
her teeth knocked out. The children’s older half-brother I.C. testified that he observed
Father hitting K.C. with a closed fist and kicking her in the ribs while wearing work boots.
He also said Mother was aware of the abuse but never intervened.
The medical examiner testified that K.C.’s liver had multiple deep lacerations that
caused blood to pool in her abdominal cavity, ultimately resulting in her death. These
injuries were inconsistent with a fall down the staircase, according to the medical
examiner. The jury could not reach a verdict on Count I but found Father guilty on Count
II. The jury also found Father was a repeat felony offender and sentenced him to sixty
years in prison. This Court affirmed his conviction in the summer of 2025. Abundez v.
State, No. 13-23-00499-CR, 2025 WL 2418389, at *1 (Tex. App.—Corpus Christi–
Edinburg Aug. 21, 2025, pet. ref’d) (mem. op., not designated for publication).
In 2025, the Department filed an amended petition again seeking termination of
3
Father’s and Mother’s parental rights. The Department alleged that although there was a
prior order denying termination of Father’s parental rights, termination was nevertheless
appropriate under Texas Family Code section 161.004(b) because “the circumstances of
the child, parent, sole managing conservator, possessory conservator, or other party
affected by the order denying termination have materially and substantially changed since
the date the order was rendered.” The Department also alleged that Father’s parental
rights should be terminated because, among other reasons, he had been convicted of an
offense for causing “the death or serious injury to a child.” See TEX. FAM. CODE
§ 161.001(b)(1)(L). The trial court subsequently granted the Department’s motion to sever
Father’s case from Mother’s, and Father’s case was assigned cause number 2025-DCL03750. 3
Father’s termination trial commenced in September 2025. The children were nine
and ten years old at the time. Their attorney ad litem told the jury in opening statements
that her clients “understand what is happening,” “know who their father is,” “understand
what happened to their little sister,” and “they want the parental rights of their father
terminated” because they “want to remain with the family that they are with now.” The
attorney ad litem explained that the children were “praying for this termination to happen”
because they “desire” the “stability” provided by their foster parents.
The jury received evidence about the circumstances of K.C.’s death and Father’s
subsequent conviction, 4 but the testimony at trial largely focused on the children’s
3 The original cause number is 2017-DC-2648.
4 For instance, Father’s judgment of conviction and our memorandum opinion detailing the evidence against Father were admitted into evidence.
4
circumstances after removal. Emma Ruiz, a conservatorship worker for the Department,
testified that the children were initially placed with their maternal grandparents for a
couple of years, but the trial court removed them “due to corporal punishment that was
going on in that home.” Ruiz said that the children had been living with their foster parents
for approximately “two-and-a-half years” and were “doing really good in the home.” She
explained that the children had become “very attached” to the foster family and that “they
seem very happy to be in the home.” She also stated that the children had expressed
their shared desire to remain with the foster family and that they referred to their foster
parents as “mom” and “dad.” Ruiz agreed that the foster parents were meeting the
children’s physical, emotional, and medical needs.
At some point, the Department also considered placing the children with their
paternal grandparents, but the Department concluded that the placement would be
inappropriate because there was a concern that the paternal grandparents had helped
conceal Father’s abuse of K.C. The Department additionally considered potential
placements with other members of Father’s family, but all of those proved unsuitable for
various reasons. It was Ruiz’s opinion that it was in the children’s best interest to have
Father’s parental rights terminated.
The children’s guardian ad litem, Valeria Garcia, testified that after the children
were removed from the maternal grandparent’s home, they lived in a shelter for a month,
and then with another foster family before their current placement. Garcia said that during
this period when the children were transitioning “from home to home,” they began “acting
out” and displaying “behavioral issues.” She said that changed when the children went to
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live with their current foster family. Garcia described how the foster parents “gave them a
life that they never had before,” one with “a sense of security, a sense of stability.” She
said the foster family had provided the children with the “structure” and “attention they
needed.” The children formed an “emotional connection” with their foster parents and
were “doing fantastic” in their care. Garcia said that the children participate in sports,
attend church, and enjoy spending time with “their friends from school.” She said that the
foster mother is “a very proud parent to both of them” and regularly sends her pictures of
the children, including one of V.L.G. dressed up for “a daddy-daughter dance” with her
foster father. Garcia also said that the foster parents “love them as their own” and that the
foster mother “worries for them as a mother should. She puts their needs first. She is very
protective of them. She is just a great person.”
Garcia, who had served as the children’s guardian ad litem for the past eight years,
expressed her opinion that the “children need finality. They need to know that they’re
going to stay where they call home.” She said the children “have moved on” and it was in
their best interest to terminate Father’s parental rights and make the foster family the
children’s “forever home.”
Foster mother testified that the children began living with them on “December 21st
of 2022.” She confirmed that the children call her and her husband “mom and dad.” She
also said that they refer to her parents as “grandma and grandpa” and her biological son
as “brother.” She considers the children part of “[her] family.” She testified that she
established regular medical and dental care for the children and made sure the children
attended court ordered counseling sessions. She also confirmed that the children had
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expressed their desire to have Father’s parental rights terminated, explaining that “they’ve
been scared to be removed for as long as they’ve been with me.” She elaborated that the
children have been “traumatized” by the ongoing uncertainty: “They’ve been bouncing
around from foster home to foster home forever. And they want to stay with us. They love
us. We love them. And they’re just scared to be taken out.”
She agreed that when the children were initially placed in her care, “they had some
behavioral issues.” She said that the children “wouldn’t even allow anybody to get near
them”, and V.L.G. “did not want any physical contact.” But after several months in their
care, V.L.G. became affectionate and would sit on her lap asking for hugs and kisses.
Foster mother further testified that she had to teach the children “how to eat with a fork
and a spoon” and “how to clean themselves because they didn’t know how.” She talked
about the daily routine she and her husband had established with the children, the various
things they do together before and after school each day. She testified that Mother had
not had any visitation with the children in more than eighteen months and that the children
had spoken to Father by phone only once or twice since they came to live with her. She
recalled J.M.A. telling her on one occasion that he “didn’t want to take the call” because
Father “wasn’t his dad.” Instead, he told her that “his daddy” had just arrived home from
work. Finally, she said that if Father’s rights were terminated, she was prepared to
continue caring for the children in a loving and stable environment “[f]orever.”
At the time of trial, Father had just filed a petition for discretionary review with the
Texas Court of Criminal Appeals concerning his conviction. On the advice of counsel, he
elected not to testify. He did not offer any witnesses or evidence. Before the close of
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evidence, the Department asked the trial court to take judicial notice of its live pleading,
but it did not ask the trial court to take judicial notice of the April 6, 2018 final order or
seek to admit it into evidence.
The trial court submitted four grounds for termination to the jury, including both
endangerment grounds and (L) grounds. See TEX. FAM. CODE § 161.001(b)(1)(D), (E),
(L), (P). The jury found each ground was supported by clear and convincing evidence as
to each child. The jury also found by clear and convincing evidence that it was in the
children’s best interest to terminate Father’s parental rights. See id. § 161.001(b)(2). The
trial court subsequently signed an order of termination that “incorporated” the jury’s
findings. The order also included findings that were not based on questions presented to
the jury, including the following:
6.1. The Court finds that some of the evidence considered in this trial
related to events occurring before a prior order denying termination,
and that such evidence was admissible pursuant to § 161.004,
Texas Family Code.
6.2. The Court finds by clear and convincing evidence that the petition for
termination in this case was filed after the date that an order denying
termination of the parent-child relationship of [Father] was rendered,
that the circumstances of the children, parent, sole managing
conservator, possessory conservator, or other party affected by the
prior order have materially and substantially changed since the prior
order was rendered, and that, before the prior order was rendered,
said parent committed an act listed under § 161.001, Texas Family
Code.
Father made no post-trial motions, and this accelerated appeal followed.
II. PRESERVATION OF ERROR
As a threshold matter, the Department contends that Father failed to preserve any
of his sufficiency challenges because they are being raised for the first time on appeal.
8
We agree that Father did not take the necessary steps to preserve his challenges to the
jury’s findings on endangerment grounds; however, because the trial court, not the jury,
made the finding of a material and substantial change in circumstances, we conclude that
Father may challenge that finding for the first time on appeal.
Following a jury trial, a legal-sufficiency challenge must be preserved in the trial
court in one of the following ways: (1) a motion for instructed verdict, (2) a motion for
judgment notwithstanding the verdict, (3) an objection to the submission of the issue to
the jury, (4) a motion to disregard the jury’s answer to a vital fact issue, or (5) a motion
for new trial. In re D.T., 625 S.W.3d 62, 75 n.8 (Tex. 2021). Likewise, a factual-sufficiency
challenge to a jury finding must be preserved by raising the complaint in a motion for new
trial. TEX. R. CIV. P. 324(b)(2); In re D.T., 625 S.W.3d at 75 n.8. Conversely, when a case
is tried to the bench, “a complaint regarding the legal or factual sufficiency of the
evidence . . . may be made for the first time on appeal in the complaining party’s brief.”
TEX. R. APP. P. 33.1(d).
In a parental termination case, “an omitted [jury] finding may be supplied by an
express finding of the trial court.” In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002) (trial court
made express best-interest finding in termination order that was omitted from jury
charge). In such a case, a parent may raise a legal or factual sufficiency challenge to the
omitted jury finding for the first time on appeal. See id. at 273–74 (concluding the trial
court’s best-interest finding did not constitute a due process violation because, among
other reasons, the parents could have challenged the legal or factual sufficiency of the
finding in the court of appeals but failed to do so).
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In this case, the Department alleged in its live pleading that it could satisfy the
statutory elements of section 161.004, including a material and substantial change in
circumstances, and, therefore, it should be allowed to introduce the same evidence of
Father’s violations of section 161.001 that the Department relied on at the previous
termination hearing in 2018. See TEX. FAM. CODE § 161.004. The question of whether “the
circumstances of the child, parent, sole managing conservator, possessory conservator,
or other party affected by the order denying termination have materially and substantially
changed since the date that the order [denying termination] was rendered” was not
included in the jury charge. Id. § 161.004(a)(2). Nevertheless, the trial court made an
express finding in the termination order that this element was satisfied by clear and
convincing evidence. This was a necessary finding because the trial court also found “that
some of the evidence considered in this trial related to events occurring before a prior
order denying termination.” See id. § 161.004(b). Under these circumstances, we
conclude that Father may raise his factual and legal sufficiency challenges to the trial
court’s section 161.004(a)(2) finding for the first time on appeal. See In re J.F.C., 96
S.W.3d at 273–74.
Father’s evidentiary challenges to the jury’s endangerment findings under
subsections (D) and (E), however, were not preserved for appellate review. Just like any
other civil jury trial, Father was required to first raise these challenges to the jury’s findings
in the trial court as a precondition to appellate review. See In re D.T., 625 S.W.3d at 75
n.8; In re C.S., No. 13-13-00095-CV, 2013 WL 3895818, at *6 (Tex. App.—Corpus
Christi–Edinburg July 25, 2013, no pet.) (mem. op.).
10
Father does not dispute that he failed to preserve error in the trial court. Instead,
he claims that “(D) and (E) findings are subject to mandatory appellate review under In re
N.G., 577 S.W.3d 230 (Tex. 2019) [(per curiam)], when challenged on appeal.” Father’s
reliance on N.G. is misplaced. To be sure, N.G. mandates appellate review of (D) and (E)
grounds “even when another ground is sufficient for termination” because those grounds
carry collateral consequences for the parent, and failure to review them would amount to
a due process violation “[w]hen the parent has presented the issue on appeal.” Id. at 235.
Crucially, though, the parent in that case was appealing from a termination order rendered
after a bench trial, so there was no need to preserve error from the trial court’s findings
because, unlike this case, they could be challenged for the first time on appeal. See In re
N.G., 575 S.W.3d 370, 377 (Tex. App.—Dallas 2018, pet. granted), rev’d, 577 S.W.3d
230 (Tex. 2019) (finding evidence “sufficient to support the trial court’s finding” on (O)
grounds); TEX. R. APP. P. 33.1(d). Naturally, then, the Supreme Court of Texas said
nothing in N.G. about excusing parents from normal preservation requirements when
challenging a jury’s findings on (D) and (E) grounds because error preservation was not
a barrier to presenting the issue on appeal. See In re N.G., 577 S.W.3d at 234–37. Had
the court intended to upend bedrock preservation requirements, we would expect it to
have expressly said so.
Moreover, in a subsequent opinion, the Supreme Court of Texas impliedly cast
doubt on Father’s position. In D.T., the high court held “that a parent who responds in
opposition to a government-initiated suit seeking termination of the parent-child
relationship may assert a claim for ineffective assistance of counsel on appeal regardless
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of whether the parent’s counsel was appointed or retained.” 625 S.W.3d at 73. One of the
parent’s ineffective-assistance claims was that her trial “counsel did not file a motion for
new trial and did not otherwise preserve a sufficiency challenge” to the jury’s findings. Id.
at 75 & n.8. These included affirmative jury findings on (D) and (E) grounds. See In re
D.T., 593 S.W.3d 437, 438–39 (Tex. App.—Texarkana 2019, pet. granted), aff’d, 625
S.W.3d 62 (Tex. 2021). The D.T. Court ultimately concluded that the claim failed on the
merits because the parent did not overcome the legal presumption that her counsel
elected not to preserve a sufficiency challenge based on the strength of the evidence
supporting the jury’s findings. In re D.T., 625 S.W.3d at 75. If, as Father suggests, there
was no need to preserve error in the first instance under N.G., then it stands to reason
that the D.T. Court would have rejected the claim outright, rather than accepting the
parent’s premise as one that could plausibly support a claim of ineffective assistance.
After all, to prevail on such a claim, the first step was demonstrating “that counsel’s
performance was deficient.” Id. at 74 (quoting Strickland v. Washington, 466 U.S. 668,
687 (1984)).
Finally, several of our sister courts have considered the very argument presented
by Father, and all agree that N.G. does not require appellate review of a jury’s findings
on (D) or (E) grounds when the parent failed to preserve the alleged error in the trial court.
See B.S. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-22-00279-CV, 2022 WL
16842084, at *3 (Tex. App.—Austin Nov. 10, 2022, no pet.) (mem. op.); In re A.R.S., No.
05-21-00655-CV, 2022 WL 224812, at *2 n.1 (Tex. App.—Dallas Jan. 26, 2022, no pet.)
(mem. op.); In re M.X.R., No. 04-20-00042-CV, 2020 WL 2736465, at *3 n.2 (Tex. App.—
12
San Antonio May 27, 2020, no pet.) (mem. op.); In re S.C., No. 02-18-00422-CV, 2019
WL 2455612, at * 4 n.2 (Tex. App.—Fort Worth June 13, 2019, pets. denied) (mem. op.).
For the forgoing reasons, we conclude that Father failed to preserve his sufficiency
challenges to the jury’s findings on (D) and (E) grounds. Accordingly, Father’s second
issue is overruled, and we proceed to the merits of his first issue challenging the legal
and factual sufficiency of the trial court’s section 161.004(a)(2) finding.
III. MATERIAL & SUBSTANTIAL CHANGE IN CIRCUMSTANCES
Father contends that “[t]he record contains insufficient testimony about the prior
denial of termination[,] making it impossible to determine the baseline against which such
material and substantial change must be measured.” He claims that the Department failed
to establish “when the prior order was rendered or what the circumstances were at that
time.” The only thing that can be gleaned from the record, according to Father, is that his
circumstances “remained constant” between the prior order denying termination and the
order terminating his parental rights. He claims that “he remained incarcerated” and
continued to have virtually no contact with the children during the relevant period. He also
submits that the mere fact that the children are now older is insufficient “because children
always grow older during protracted litigation.”
A. Standard of Review & Applicable Law
A parent has a constitutional right to the care, custody, and control of his children.
In re J.W., 645 S.W.3d 726, 740 (Tex. 2022) (citing In re E.N.C., 384 S.W.3d 796, 802
(Tex. 2012)); In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (“The United States Supreme
Court has long held that the Constitution ‘protects the fundamental right of parents to
13
make decisions concerning the care, custody, and control of their children.’” (quoting
Troxel v. Granville, 530 U.S. 57, 66 (2000))). Accordingly, in proceedings to terminate the
parent-child relationship, the petitioner is required to prove by clear and convincing
evidence one of the statutory termination grounds and that termination is in the children’s
best interest. TEX. FAM. CODE § 161.001(1), (2). Clear and convincing evidence is “the
measure or degree of proof that 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.” Id. § 101.007.
In parental termination cases, our legal and factual sufficiency standards honor
this elevated burden of proof while respecting the factfinder’s role. In re A.C., 560 S.W.3d
624, 630 (Tex. 2018) (citing In re J.F.C., 96 S.W.3d at 264). “The distinction between
legal and factual sufficiency lies in the extent to which disputed evidence contrary to a
finding may be considered.” Id. In a legal sufficiency review, we “cannot ignore undisputed
evidence contrary to the finding, but [we] must otherwise assume the factfinder resolved
disputed facts in favor of the finding.” Id. at 630–31 (citing In re J.F.C., 96 S.W.3d at 266).
Thus, “[e]vidence is legally sufficient if, viewing all the evidence in the light most favorable
to the fact-finding and considering undisputed contrary evidence, a reasonable factfinder
could form a firm belief or conviction that the finding was true.” Id. at 631 (citing In re
J.F.C., 96 S.W.3d at 266).
Factual sufficiency, on the other hand, requires us to weigh disputed evidence
contrary to the finding against all evidence favoring the finding. Id. We “must consider
whether disputed evidence is such that a reasonable factfinder could not have resolved
it in favor of the finding.” Id. (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)).
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Therefore, “[e]vidence is factually insufficient 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.” Id. (citing In re J.F.C., 96 S.W.3d at 266).
Described as a statutory exception to the doctrine of res judicata, In re K.G., 350
S.W.3d 338, 346 (Tex. App.—Fort Worth 2011, pet. denied), section 161.004 allows a
trial court to terminate the parent-child relationship after rendition of an order that
previously denied termination of the parent-child relationship if: (1) the petition is filed after
the date the order denying termination was rendered; (2) the circumstances of a party
affected by the order denying termination have materially and substantially changed since
the date that the order was rendered; (3) the parent committed an act listed under section
161.001 before the date the order denying termination was rendered; and (4) termination
is in the best interest of the child. TEX. FAM. CODE § 161.004(a). Additionally, the statute
provides that “[a]t a hearing under this section, the court may consider evidence
presented at a previous hearing in a suit for termination of the parent-child relationship of
the parent with respect to the same child.” Id. § 161.004(b). Like termination under section
161.001, the elements under section 161.004 must be proven by clear and convincing
evidence. In re A.L.H., 515 S.W.3d 60, 90 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied).
“There are no definite guidelines as to what constitutes a material and substantial
change in circumstances to terminate parental rights under section 161.004.” In re
F.M.E.A.F., 572 S.W.3d 716, 725 (Tex. App.—Houston [14th Dist.] 2019, pet. denied)
15
(citation modified). In other words, every case is fact specific. In re A.L.E., 279 S.W.3d
424, 428 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
B. Analysis
Father contends that it was impossible to determine whether there was a material
and substantial change in circumstances because there is no evidence in the record
establishing the date the prior order denying termination was rendered. See TEX. FAM.
CODE § 161.004(a)(2) (requiring a material and substantial change in circumstances
“since the date that the order was rendered”). Although the clerk’s record contains a final
order from April 2018, Father correctly notes that, unlike the Department’s live pleading,
the trial court never took judicial notice of the order. See Interest of D.L.W.W., 617 S.W.3d
64, 92 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (“Similarly, the documents contained
in the clerk’s record, of which the trial court did not take judicial notice, cannot be used to
support the trial court’s termination of mother’s and father’s parental rights to A.M.M. The
only evidence that can support the trial court’s order is the evidence admitted at trial.”
(citing In re E.F., 591 S.W.3d 138, 142 n.4 (Tex. App.—San Antonio 2019, no pet.));
B.L.M. v. J.H.M., No. 03-14-00050-CV, 2014 WL 3562559, at *13 (Tex. App.—Austin July
17, 2014, pet. denied) (mem. op.) (“Accordingly, our evidence-sufficiency review is limited
to the evidence admitted at the termination trial and properly noticed contents of the
clerk’s record.”); cf. In re T.M.B., No. 13-24-00070-CV, 2025 WL 1073173, at *7 n.7 (Tex.
App.—Corpus Christi–Edinburg Apr. 10, 2025, no pet.) (mem. op.) (“In this case, the trial
court did not formally take judicial notice of any records or testimony from the divorce trial.
To the extent it did so informally, that was improper because they were not entered into
16
evidence in the modification proceedings. Accordingly, in our analysis, we will consider
only evidence which was adduced at the March 23, 2023 hearing.” (citations omitted)).
Even if we assume that termination under section 161.004 was improper, Father’s
parental rights were also terminated based on violations of section 161.001(b)(1) that
occurred after the 2018 order. “Termination of parental rights ‘can be achieved after a
prior order denying termination of the parent-child relationship through either section
161.004 or section 161.001.’” In re J.M.T., 652 S.W.3d 525, 527 (Tex. App.—San Antonio
2022, pet. denied) (quoting In re H.L.H., No. 10-16-00254-CV, 2018 WL 1321750, at *13
(Tex. App.—Waco Mar. 14, 2018, no pet.) (mem. op.)).
Thus, when the Department seeks termination after a prior order denying
termination, a trial court may terminate parental rights (1) under section
161.001, which requires clear and convincing evidence of acts or omissions
having occurred since the prior denial of termination, or (2) under section
161.004, which requires clear and convincing evidence of an act or
omission under section 161.001 that occurred prior to the denial and
evidence of a material and substantial change since the prior denial of
termination.
Id. (citing In re N.A.V., No. 04-19-00646-CV, 2020 WL 1250830, at *3 (Tex. App.—San
Antonio Mar. 17, 2020, pet. denied) (mem. op.)).
Here, Father had not even been criminally charged for K.C.’s death at the time of
the 2018 order, and consistent with the Department’s live pleading, the jury found by clear
and convincing evidence that Father was convicted of injury to a child in 2023. See TEX.
FAM. CODE § 161.001(b)(1)(L)(ix) (requiring clear and convincing evidence that a parent
has “been convicted” of one of several criminal offenses, including injury to a child). Father
has not challenged the jury’s termination finding on (L) grounds. Because only one
predicate ground is necessary to affirm the order terminating his parental rights, any
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alleged error with respect to termination of his parental rights under section 161.004 was
harmless. See In re J.F.G., 500 S.W.3d 554, 559–60 (Tex. App.—Texarkana 2016, no
pet.) (explaining that because the unchallenged termination ground “can support the order
of termination, it is unnecessary to review legal and factual sufficiency arguments as to
the other grounds” (collecting cases)); TEX R. APP. P. 44.1(a)(1). Accordingly, Father’s
first issue is overruled.
IV. CONCLUSION
The order terminating Father’s parental rights is affirmed.
JENNY CRON
Justice
Delivered and filed on the
13th day of August, 2026.
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