### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00858- CV

M. Z . and R. B ., Appellan ts

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 428 TH JUDICI AL DISTRICT NO. 13- 1310 , H ONO RAB LE R. B RUCE B OY ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
M.Z
. and R.B. appea l the trial court’s final order terminating their pare ntal rig hts to their child, K.F.B ., following a bench trial. See Tex. Fam. Code § 161.001. They challeng e the 1 sufficie ncy of the evidenc e to support the trial court’s finding s as to the predic ate statutory g rounds and the child’s best interest. See id

. § 161.001(1)( D), (E), (2). For the rea sons that follow, we aff irm the trial cour

t’s final orde r of ter

mination.
BACK GR OUND K.F.B
. was born on April 2, 2009, and li ved with both of her pare nt s i n C al i fo rnia until the child and R.B., the f ather , moved to Texas in 2011. R.B. was a busing pr escr iption drugs

We use initials to re fer

to appellants and the ir child. See Tex. Fam. Code. § 109.002(d) ; 1 Tex. R. App. P. 9.8. Appellants are repr esente d by differ ent counsel and filed separ ate briefs with this Court.and moved to Texas to rec eive help from his fathe r. M.Z
. came to Texas a few m onths l ater and 2 moved into a trave l trailer with them. The trailer was on R.B.’s fathe r’s proper ty
. R.B.’s fathe r lived with his wife in a house on the proper ty , and they helped take car e of the child. R.B.’s fathe r’s wife, howeve r, was in a serious acc ident in September of 2012. As a re s u l t o f t h e ac cident, she is a quadripleg ic. After the acc ident, R.B.’ s father and his wife wer e awa y from home for extended periods of time a

nd wer e unable to provide the same level of suppor t to M.Z., R.B ., and the c hild. The re lationship between R.B . and M.Z. was volatile and unhea lthy . Acc ording to M.Z ., R.B. phy sically , emotionally , and sexually abused her. After R.B.’s fathe r’s wife’ s acc ident, the home situation worsene d. M.Z
. left R.B. , t ak i n g the child with her, and went to a women’s shelter in F ebrua

ry 2013. Around this time, the Depa rtment of Family

and Protec tive Service s and the police beca me involved with the family

. The p o lice beca me involved afte r the child made an outcry statement to M.Z . of sexual abuse by R.B. The child was interviewe d by a fore nsic interviewe r in Marc h 2013 conce rning the sexual abuse alleg ations, and M.Z
. was interviewe d in April 2013 by a p ea ce office r investigating the sexual abuse alleg ations. The child told the interviewe r that R
. B. touched her “privates” with his fing ers and put his “priva te” insi de her “priva te,” that R.B. “hurt” her, that she was “scr eaming ” for he r mother, a nd that R.B. told her tha

t he would “kill” her if she told any one. M.Z . told the office r about the c hild’s outcry of R.B.’ s sexual abuse and thre at with 3

Whether R.B. wa s ab u s i n g drug s was disputed at trial. R.B. testified that he took pain 2 medication for

an injury and that doctor s had pre scribed the medication. During the interview, the child identified the locations of d i ff ere nt body parts including 3 “priva tes” on picture s of a g irl and boy provided by

the interview er. 2a knife to never disclose the sexual abuse. R.B. wa s ar re s t ed in April 2013 and indicted for

ag g rava ted sexual a

buse assault of a child under six y ear s of ag e and for indece ncy with a child by sexual conduct. A protec tive order to protect the c hild and M.Z . from R.B. w as ente red. R.B. rema ined in jail afte r his arr est. M.Z
. and the child communicated with R.B. by telephone, and M.Z
. broug ht the child with her to the jail to visit R.B. sever al times in May and J une 2013. On J une 6, 2013, the child was interviewe d ag ain by a fore nsic interviewe r, and she rec anted her alleg ations ag ainst R.B. and made alleg ations ag ainst her g randf ather , R.B.’s fathe r. Around this time, the Depa

rtment rec eived a ref

err al alleg ing neg lectful supervision of the child by M.Z
. based on the jail visits wit h R.B. A warra nt was iss ued for M.Z .’s arrest on J une 20, 2013, for violating the protec tive order as a party to the offe nse. See Tex. Penal Code §§ 7.01–.02, 25.071. M.Z
. also 4 was indicted f

or the off ense of endang ering a child and a capia s was issued on Jul y 12, 2013. The Depa rtment filed a petition for termination of pare ntal rig hts on J une 21, 2013. On J uly 1, 2013, an adver sary hear ing was held pursuant to section 262.205 of the Family Code, and the t ri al court enter ed temporary order s. See Tex. Fam. Code § 262.205. I n its temporar y order s, the trial court waived the require ment of a service plan based on ag g ravated circ umstances for both pare nts. See id. § 262.2015(b)( 3)(E) , (I ).

I n t h e aff idavit of probable cause for arr est war rant, the peac e office r aver red: (i) the 4 protec tive order order ed R.B. not to communicate with M.Z
. or the child or to g o within 200 y ards of M.Z
. or the child; (ii) during the visits to the jail in May and J une, the child was within 200 y ards of R.B. and direc tly communicated wi t h him; and (iii) by taking the child to the jail, M.Z
. encour ag ed the commission of the offe nse of violation of the protec tive order

. See Tex. Penal Code §§ 7.02(a) (2) (“A person is criminally responsible for an offe nse committed by the conduct of another if:

. . . acting with intent to promote or assist the co m m i ssion of the offe nse, he solicits, encour ag es, direc ts, aids, or attempts to aid the other person to co mmit the offe nse.”) , 25.071 (off ense of violation of protective or der pr eventing offe nse ca used by bias or pre

judice). 3The case proce eded to a bench trial in November 2013. M.Z
. was in California and

did not persona lly appea

r for the trial. The witnesses included a clinical social worke r who provided

5 thera py to the child, the fore nsic interviewe rs of the c hild, the prog ram dire ctor at one of the child advoca cy cente rs wher e the child’s fore nsic interview occur red, R.B., R.B.’s fathe r and stepbrother , the child’s g uardia

n ad litem, a Child Protective Service s (CPS) case worke r who was assig ned to the
case , and the peac e office r who investigated the sexual abuse alleg ations and interviewe d M.Z
. The exhibi ts included the video rec ording s of the for en s i c ex ami ners’ interviews of the child and the office r’s interview of M.Z
. and the audio rec ording s of conver sations be tween R.B., M.Z ., and the child on the telephone and during jail visit s. The indictments of R.B. f or ag g ravated sexual abuse assault of a child under six y ear s of ag e and for indece ncy with a child by sexual conduct, the complaints and war

rant for M.Z .’s arr est for t h e o ffense of violating the protec tive order , and the indictments and capia s for the offe nse of endang ering a child also wer e admitted as exhibi ts. At the time of the trial, the a

rre st warr ant and c apias re mained outstanding

. The trial court terminated R .B.’ s pare ntal rig hts based on section 161.001(1)(E) of the Fa mily Code and M.Z .’s rig hts based on section 161.001(1)( D) and its finding s that termination of both pare nts’ rig hts was in the ch i l d ’s best interest. See id. § 161.001(1)( D), (E), (2). Both pare nts filed motions for new trial, whic h wer e denie d. This appea l followed.

M.Z . appea

red by and throug h her attorney
. 5 4ANALYSIS To terminate pare ntal ri gh ts, the Depa rtment has the burden to prove one of the predic ate g rounds in section 161.001(1 ) o f t he Family Code and that termination is in the best interest of the child. See id. § 161.001(1), ( 2); In re A.V. , 113 S.W .3d 355, 362 (Tex. 2003). The applicable standard of proof is the clea r and convincing standard. Tex. Fam. Code § 161.206(a) ; see In re J .F.C. , 96 S.W .3d 256, 263 (Tex. 2002) (due pr ocess r equire s clea r and c onvincing standard of proof in pare ntal termination case s). The clea r and convincing standard i s “‘ t h at m easur e or deg ree of proof

which will produce in the mind of the trier of fac t a firm belief or conviction as to t h e t ru t h o f the alleg ations soug ht to be established.’” In re C.H. , 89 S.W .3d 17, 23 (Tex. 2002) (quoting State v. Addington , 588 S.W .2d 569, 570 (Tex. 1979)); see also Tex. Fam. Code § 101.007 (def ining “cle ar and convincing ev i d en ce ”). Although “par ental rig hts are of constitutional mag nitude,” “it is also essential that emotional and phy sical interests of the child not be sac rifice d
mere ly to preser ve that rig ht.” In re C.H. , 89 S.W .3d at 26. Appellants raise leg al and fac tual sufficie ncy challeng es to the evidenc e. L eg al sufficie ncy revie w of the evidence to support a t ermination finding requires a court to “look at all the evidenc e in the light most favor able to the finding to deter mine whether a rea sonable trier of fac t could have formed a firm belief or conviction that its finding was true.” In re J.F.C. , 96 S.W .3d at 266. I n revie wing the fac tual sufficie ncy o f t h e evidenc e to support a termination finding , an appellate court revie ws the rec ord to deter mine “whe ther the evidenc e is such that a fac tfinder could
rea sonably form a firm belief or conviction about t he truth of the State’ s alleg ations.” In re C.H. , 89 S.W .3d at 25; see also In re H.R.M. , 209 S.W .3d 105, 108 (Tex. 20 0 6 ) (desc ribing fac tual

5sufficie ncy standard of revie w in appea ls from termination order s and noting that appell at e co u rt

“must g ive due de fer ence ” to fa ctfinding s and “not supplant” its own judg ment).
Term ination of R.B.’s p arental r ights un der sec tion 161.001(1)(E)

As part of his appellate issue, R.B. challeng es the fac tual sufficie ncy of the evidenc e to support termination of his pare ntal rig hts under sec tion 161.001(1)(E) of the F amily Code. See Tex. Fam. Code § 161.001(1)( E). The trial court found by clea r and convincing evidenc e that R.B. “eng ag ed in conduct or knowing ly place d the child with persons who eng ag ed in conduct which endang ers the phy sical or emotional well-be ing of the child [K.F.B.].” See id . R.B. urg es that the evidenc e is fac tually insufficient to support the t ri al court’s finding beca use t here was no medical evidence t o s how that a sexual assault had occur red and M.Z
. “coa ched” the child befor e both fore nsic interviews.

“‘ E n d an ger ’ means ‘to expose to loss or injury ; to jeopar dize.’” In re M.C. , 917 S.W .2d 268, 269 (Tex. 1996) (quoting Texas Dep’ t of Human Servs. v. Boyd , 727 S.W .2d 531, 533 (Tex. 1987)). “Althou gh ‘e n dang er’ means more than a threa t of metaphy sical injury or the possible ill eff

ects o f a less-than-ide al family environment, it is not nece ssary that the conduct be direc ted at the child or that the child actua lly suffe rs injury .” Id. The rele vant inquiry under section 161.001(1)( E) is whether evidenc e exis ts that the endang erme nt of the child’s well-be ing was “the direc t result of Appellant’s conduct, including acts, omissions , or failure s to act.” In re M.E.-M .N. , 342 S.W .3d 254, 262 (Tex. App.—For t Worth 2011, pet. denied) (citation omitted). “Additionally , termination under subsection (E) must be based on more than a si ng le act or om ission; the s tatute require s a voluntary , delibera te, and c onscious course of conduc t by the par ent.” Id. 6Her e, the tria l court could have cre dited the evidence of R.B.’s sex ual abuse of the

child an d R.B.’s imprisonment to support a finding that R.B. eng ag ed in a conscious course of conduct that endan ger ed the child. See Boyd , 727 S.W .2d at 533 (“[I ]m prisonment is cer tainly a fac tor to be considere d by a trial court on the issue of endang erme nt.”). The video rec ording s of the fore nsic examiners’ intervie ws of the child in Marc h and J une 2013 and the office r’s intervie w of M.Z
. in A pril 2013 wer e admitted as e x hibits. Alt houg h the child re cante d the alleg ations ag ainst R.B. in t h e s ec o n d i nterview , there was evidenc e that supported a finding that the child was “coa ched” prior to that interview. The prog ram direc tor, who was also a fore nsic examiner, testified t h at v i s i ting the fathe r could have had a “hug e im pact,” that it is not very hard to g et a pre- school child to chang e her

story , and the dire ctor did not see the same “ red f lag s” in the first i nterviewas she saw in the second one. I t was undis p u t ed t h at M.Z
. took the child to the jail to visit R.B. 6 multipl e times betwe en the f irst and sec ond interviews. During her interview with the office r in Apri l 2013, M.Z
. told the office r that she believed the child’s alleg ations ag ainst R.B. and that her child’s “priva tes” hurt and were irritated afte r t hey moved t o Texas. She took the child to t he emerg ency room on more than one occasion beca use there was blood in her child’s urine a nd the urine w as “c loudy .” The child also told M.Z

. that R.B. had threate ned her with a knife if she told any one wha t had happe ned, and R.B . asser ted his rig ht to rema in silent under the Fifth Amendment when questioned if he ever had sexual contac t with his child. See U.S. Const. amend. V; Texas Capital Secs., Inc. v. Sandefer , 58 S.W .3d 760, 779

I n the second interview, the child told the fore nsic examiner that R.B. “told” her that it was 6 “all about g randpa .” 7(Tex. App.—Houston [1st Dist.] 2001, pet. denied) (citing Baxter v. Palmigiano, 425 U.S. 308, 318

(1976)) (noting that fac tfinder in civil case “may d raw an adver se infere nce ag ainst a party who pleads the Fifth Amendment”) ; see also Tex. R. Evid. 513(c)

. I n contra st with his son’s testimony , R.B.’s f ather aff irmatively

denied a ny sexually inappropria te conduc t with the child. 7 Fur ther, there was also evidenc e that R.B. abused drug s while taking car e of the child. R.B. admitt ed that he too k p ai n m ed i cation for an injury , R.B.’s father testified that his son had a problem with presc ription drug s, M.Z
. stated that R.B. was a “drug addict” in her interview with the office r, and R.B. ag ain invoked his rig ht to r emain silent w hen asked whether he had taken car e of his child while under the influence of pain medication. See In re J.O.A. , 283 S.W .3d 336, 345 (Tex. 2009) (“[A] pa

rent’s use of narc otics and its e ffe ct on his or her ability to pa rent may qualify as an endang ering course of conduct.” ); Pruitt v. Texas Dep’ t of Family & Protective Servs ., No. 03-10- 00089-CV, 2010 Tex. App. L EXI S 10272, at *15 (Tex. App.—Austin Dec
. 23, 2010, no pet.) (mem. op.) (noting that evidenc e of drug use was rele vant to issue of endang erme nt and that “evide nce that

a pare nt abused drug s while children wer e in her custody supports a finding of termination” (citing , among other a

uthority , In re J

.O.A. , 283 S.W .3d at 346)). Multipl e witnesses also testified about the ab u s i v e rela tionship betwee n R.B. and M.Z
. See In re M.R. , 243 S.W .3d 807, 818–19 (Tex. App.—For t Worth 2007, no pet.) (holding that
ev i d ence of exposi ng a child to domestic violence supports an endang erme nt finding under subsections (D) and (E)) ; In re S.D. , 980 S.W .2d 75 8 , 763 (Tex. App.—San Antonio 1998, pet.

I n the second interview, the child told the fore nsic examiner that h er u ncle, R.B.’s 7 stepbrother , was prese nt when her g randf ather touched her “priva tes.” But the stepbrother testified that he had ne ver se en the g randf ather have ina ppropriate sexual contact with the child. 8denied) (noting that conduct subjecting child to life of instabilit y and uncer tainty endang ers a child’s emotional and p h y s i ca l we l l-being ). The clinical social worke r testified that the child descr ibed domestic violence at home, including that R.B. “tried to throw mother out a window” and “hit” and “hurt” her. R.B .’s fa ther testified tha t M.Z. a nd R.B. “ha d a volatile re lationship. A lot of y elling and scre aming and threa tening and cursing ,” which “[o] ften” occur red in front of the child. During h er i nterview with the office r, M.Z
. descr ibed numerous incidents in which R.B. was “cho k i n g, ” “y elling,” “push[ing],” “dra g g [i ng ],” and “torturing” her. Acc ording to M.Z ., the child witnessed many of these inc idents. Ba sed on our revie w of the rec ord, we conclude that the evidenc e was such that the trial court rea sonably could have formed a firm belief or conviction that R.B. eng ag ed in conduct that endang ere d the phy sical or emotional well-be ing of the child. See Tex. Fam. Code § 160.001(1)( E); In re C.H. , 89 S.W .3d at 25. Thus, we conclude that the evidenc e was fac tually sufficie nt to support the trial court’s finding as to R.B. under section 161.001(1)( E) and overr ule the part of R.B.’s issue challeng ing this finding

.
Term ination of M.Z.’s r ights un der sec tion 161.001(1)(D)

I n her first appellate issue, M.Z
. challeng es the leg al and fac tual sufficie ncy of the evidenc e to support termination of her pare ntal rig hts under s ec t i o n 161.001(1)( D) of the Family Code. See Tex. Fam. Code § 161.001(1)( D). The trial court found by clea r and convincing evidenc e that M .Z
. “knowi n gly place d or knowing ly allowed the child [K.F.B.] to rema in in conditions or surrounding s which endang er the phy sical or emotional well-be ing of the child [K.F.B .].” See id.

9The focus of subsection (D) is “the child’s living environment, rathe r than the

pare nt’s conduct, though pare ntal conduct is cer tainly rele vant to the child’s environment.” In re A.S. , 261 S.W .3d 76, 83 (Tex. App.—Houston [14t h Dist.] 2008, pet. den i ed ). “A child is
en d ang ere d when the environment cre ates a potential for dang er that the pare nt is aware o f b u t disreg ards.” In re M

.R.J.M. , 280 S.W .3d 494, 502 (Tex. A pp.—For t Worth 2009, no pet.) (op. on reh’ g ) (citing In re S.M.L. , 171 S.W .3d 472, 477 (Tex. App.—Houston [14t h Dist.] 2005, no pet.));

see In re A.S. , 261 S.W .3d at 83. “I nappropr iate, abusive, or unlawful conduct by persons who live in the child’s home or with whom the child is compelled to associate on a reg ular basis in his home is a part of

the ‘conditions or surrounding s’ of the c hild’s home under se ction 161.001(1)( D).” In

re M.R.J.M

. , 280 S.W .3d at 502 (citing Castorena v. Texas Dep’ t of Protective & Regulatory Servs ., No. 03-02-00653- CV, 2004 Tex. App. L EXI S 3753, at *8 (Tex. App.—Austin Apr. 29, 2004, no pet.) (me m. op.)).

Much of the e vidence descr ibed above in our analy sis of R.B.’s issue demonstrates that the child’s living environment cre ated a pot en t i al fo r d anger that M.Z
. was awa re of but disreg arde d. See id. M.Z
. told the office r who interviewe d her in A pril 2013 that she believed her child’s alleg ations ag ainst R.B., and she descr ibed in de tail R.B .’s phy sical, emotional, and sexual abuse for a period of time exceeding a y ear . See id. ; In re M .R. , 243 S.W .3d at 818–19 (exposing child to domestic violence supports endang erme nt finding under subsection (D))

. Even afte r M.Z
. left R.B. and he was arr ested, M.Z
. took the child t o visit with R.B. in jail, despite the risks of exposi ng the child to the alleg ed per petra tor and violating the protective order

. See In re T idwell , 35 S.W .3d 115, 119–20 (Tex. App.—Texarkana 2000, no pet.) (conc luding that “not nece ssary for

10[ m other] to have had cer tain knowledg e that one of the offe nses actua lly occur red ” an d t h at “suff icient that she was awa

re of the potential dang er to the children and disreg arde d the risk” t o support termination under subse ction (D))

.

Viewing the evidenc e in the light most favor able to the endang erme nt finding under subsection (D) , we c onclude that the trial court could have f ormed a firm belief

or convic tion that M.Z
. “knowing ly placed o r k n o wi ng ly allowed the child to rema in in conditions or surrounding s which endang er the phy s i ca l o r em otional well-be ing of the child.” See Tex. Fam. Code § 160.001(1)( D); In re J.F

. C

. , 96 S.W .3d at 266. Fur ther, based on our revie w of the rec ord, we conclude that the evidenc e is such that the trial court rea sonably could have formed a firm belief or conviction about t h e t ru th of the State’s endang erme nt alleg ations ag ainst M.Z
. See In re C.H. , 89 S.W .3d at 25. Thus, we conclude that the evidenc e was leg ally and fac tually sufficie nt to support the trial cour

t’s finding as to M.Z . under se ction 161.001(1)( D) a nd overr ule M.Z .’s first issue.
Best Int erest Findin gs As part of R.B.’s first issue and i n M.Z .’s second issue, appellants challeng e the sufficie ncy

of the e vidence to support the t rial court’s finding s that termination of their r espec tive pare ntal rig hts was in the best interest of their ch i l d ren. See Tex. Fam. Code § 161.001(2). R.B. challeng es the fac tual sufficie ncy o f t h e ev idence , and M.Z
. challeng es the leg al and fac tual sufficie ncy of t h e evidenc e to support the trial court’s best interest finding s. R.B. focuse s on the Depa rtment’s lack of an approve d rela tive place ment for the child and the chil d’s love for her

11pare nts, and M.Z
. focuse s on the child’s wishes and the lack of service s that the Depa rtment provided to her

. 8

Fa ctors that courts consider in assessing the best interest of a child include: (i) desires of the chil d , (ii) the stability of the home or proposed place ment, (iii) pare ntal abilities, (iv) the emotional and p h y s i cal needs of the child now and in the future, (v) the emotional and phy sical dang er to the child now and in the future, (vi) the p l an s fo r t h e ch ild by the individual or ag ency seeking custody , (vii) the prog rams available to assist these individuals to promote the best interest of the child, (viii) acts or omissions by the pare nt showing that the pare nt-child rela tionship was not proper , and (ix ) any excuses for the pare nt’s conduct. Holley v. Adams , 544 S.W .2d 367, 372 (Tex. 1976); see also Tex. Fam. Code § 26 3
. 3 0 7 (s tating that “prompt and perma nent place ment of the child i n a safe environment is presumed to be in the child’s best interest” and listi ng fac tors that court should consider “in deter mining whether the child’s pare nts are willing and able to provide the child with a safe environment” ). No one fac tor is controlling , and evidenc e prese nted to satisfy the predic ate g round finding may also be probative of t he child’s be st interest. In re C.H. , 89 S.W .3d at 28; Pruitt, 2010 Tex. App. L EXI S 10272, at *22–23.

As previously stated, the trial court waived the require ment of a service p l an b as ed o n 8 ag g rava ted circ umstances for b o th pare nts in the temporar y order s. See Tex. Fam. Code § 262.2015(b)( 3)(E) (sexual assault), (I ) (aba ndoning or endang ering a child). Be cause a final order has been enter ed, the temporar y order s are moot and not subject to revie w o n ap p eal. See In r e D.W

. , No. 01-13-00880- CV, 2014 Tex. App. L EXI S 4034, at *7 (Tex. App.—Hous t o n [ 1 s t Dist.] Apr. 11, 2014, no pet. h.) (mem. op.). Fur ther, M.Z
. has not provided the rec ord from the hear ing on temporar

y order s and thus we must presume that sufficie nt evidenc e supported the trial court’s finding s. See Benne tt v. Cochran , 96 S.W .3d 227, 230 (Tex

. 2002) (per curia m); Schafer v. Conner , 813 S.W .2d 154, 155 (Tex. 1991) (per curia m). 12Evidence supported find ings that M.Z
. and the child wer e bonded, that the child

missed her mother, and that the child loved both of her pare n t s . Ot h er ev idence , howeve r, demonstrated that the pare nts wer e unable to take car e o f t h e ch i l d o r to provide the child with a stable home. R.B. was incar cer ated pending trial and M.Z
. had an outstanding war rant for her arr est. R.B.’s proposed place ment for the child if his rig hts wer e not terminated was for the child to live in California with his g randmother and g reat-g randmother , but he did not have a plan for transporting the child to California and he was unable to provide for the child financ ially

. Fur ther, other evidenc e showed that the g randmother and g reat-g randmother wer e not an appropr iate place ment. As to 9 M.Z .’s plans for the child if her rig hts wer e not terminated, she did not appea r for trial, choosing to
rema in in California, but othe r evidenc e supported a f inding that she hoped one da y for the f amily to be reunited. Despite the risk of violating the protec tive order , M.Z
. maintained contac t with R.B.

1 0 and allowe d him to see the child af ter he was inca

rce rate d. 1 1 I n contra st with the parents’ pla ns for the child, the evidence showed that the child
was safe and taken car e of in her curr ent place ment, a non-adoptive foster home. The clinical social

The State of California did a home study on the g randmother and g reat-g randmother at the 9 Depa rtment’s reque st and did not approve place ment in their home. See Tex. Fam. Code § 162.102 (adoption of “I nterstate Compact on the Placement of Children”). R.B.’s stepbrother also testified that R.B. told him that R
. B. moved to Texas beca use living with his g randmother and g rea tg randmother

had bee n a “ne g ative envir onment” and tha t they wer e stea ling his pain medic ation. The exhibi ts inc luded rec ent posts from Fa cebook by M.Z
. about her child and R.B. and 1 0 the audio rec ording s from phone conver sations and jail visits betwee n R.B., M.Z , and the child from April 19, 2013, to J une 19, 2013.

I n one of the first audio rec ording s of conver sations betwee n M.Z
. and R.B., they discuss 1 1 the protec tive order and R.B. tells M.Z

. that violating the protec tive order could put him in jail for a y ear . The c hild is also heard during this conversa tion. 13worke r testified that the child was “adjusting very well” to her new school, home, and circ umstances.

T h e Depa

rtment’s plan for the child was for adoption by a rela tive if the pare nts’ ri gh t s we re terminated. The Depa

rtment was considering placing the child with the child’s u n cl e, R
. B.’ s stepbrother , and the stepbrother testified that he believed that the child s h o uld live with him and his wife. The evidenc e of the rela tionship betwee n R.B. and M.Z
. also supported finding s that the child’s place ment with either pare nt would be in an unstable home, that her emotional or phy sical needs would not be met, and that she would be in e motional or phy sical dang er. I n addition to the
ev i d en ce of dom estic vi olence and sex ual abuse, R.B.’s father testified about hi s conce rns for the child’s safe ty while the child was living in the trailer with her pare nts. He descr ibed M.Z .’s “er ratic” behavior , R.B.’s “drug abuse,” and the pare nts’ failure to provide adequate food for the child. R.B.’s fathe r believed that neither pare nt could take car e of the child. R.B.’s stepbrother testified that it was
a reg ular occur

renc e to see R.B. under the influence of drug s an d t h at it had been about ten y ear s since he saw R.B. being a self-suf ficient, responsible adult. R.B. answe red “Ye s” when asked if he

an d M
. Z. were “strug g ling” and living in “pre tty roug h circ umstances” for over a y ear , and R.B. testified that he and M.Z
. wer e “just alway s arg uing,” that M.Z
. was “bipolar,” “er ratic,” and not to be trusted, a

nd that he did not think that M.Z. should be the primary conser vator of the child. Fur ther, the trial court could h av e cre dited the evidenc e conce rning the pare nts’ conduct showing that the pare nt-child rela tionships wer e not proper . The exhibi ts included the video
rec ording s o f t h e fo re n s i c interviews of the child and the interview of M.Z
. The clinical social worke r also testified that the rela tionship betwee n the child and her pare nts was not appropr iate. The

14clinical social worke r testified that the child was “par enti fi ed

. S he’s had to take on the role of

worry ing about her mother afte r s ce n es of dom estic vi olence by her acc ount.” The clinical social worke r also testified that the child “re ported fee ling extremely frig htened by her fathe r” and that he “dama g ed her

mother, hit her, . . . a

nd hurt her.” The trial court also could have cre dited the testimony of the g uardia n ad litem and the CPS case worke r. They both testified that it was in the child’s best interest to terminate the pare nts’ rig hts. The g uardia

n ad litem explained her re asons for he r best-inter est conc lusion:
Due to the nature of the abuse

. . . that occur red and the fac t that

. . . her mother was not protective of

her onc e she ma de those outcr ies.
T h e ca s ew o rk er rea soned that termination was in the child’s best interest to g ive the child “some perma nency ” and to “kee p her safe .” The case worke r testified that M.Z
. “has shown that she’s not g oing to be protec tive of [t he child], so I think in order to keep [t he child] safe in the future, then her rig hts need to be te rminated.”

Viewing the evidenc e in the light most favor able to the best interest finding s, we conclude that the trial court could have formed a firm belief or con v i ct i o n t h at terminating the pare ntal rig hts o f M.Z
. was in the best interest of the child. See Tex. Fam. Code § 160.001(2); In re J.F.C. , 96 S.W .3d at 266. Fur th er , b ased on our revie w of the rec ord, we conclude that t h e evidenc e is such that the trial court rea sonably could have formed a firm belief or co n v i ct i o n that termin at i o n o f t h e p ar ental rig hts of M.Z
. and R.B. was in the best interest of the child. See In re C.H. , 89 S.W .3d at 25. Thus, we conclude that the evidenc e was leg ally and fac tually sufficie nt to support the trial court’ s best interest finding as to M.Z .’s par ental rig hts a nd fac tually sufficie nt 15as to R
. B.’s pare ntal rig hts. We overr ule M.Z .’s second issue and the part of R.B.’s issue that challeng es the trial c ourt’s best intere st finding.
CONCLUSION Having overr

uled appellants’ issues, we aff irm the trial court’s fi n al order of termination.

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: May

22, 2014

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